Datasets:

free-law

/

Caselaw_Access_Project

like 64

Follow

FreeLaw 22

12510623

IN RE NATALIA M.

In re Natalia M.

2019-06-03

AC 42512

682

686

210 A.3d 682

210

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

IN RE NATALIA M.

IN RE NATALIA M. AC 42512 Appellate Court of Connecticut. Argued May 14, 2019 Officially released June 3, 2019 David J. Reich, for the appellant (respondent father). Seon A. Bagot, assistant attorney general, with whom, on the brief, were William Tong, attorney general, Benjamin Zivyon, assistant attorney general, Stephen G. Vitelli, assistant attorney general, and Evan O'Roark, assistant attorney general, for the appellee (petitioner). Ingrid Swanson, for the minor child. Alvord, Bright and Bear, Js. In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court. June 3, 2019, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

1714

10654

PER CURIAM. The respondent father, Paul R., appeals from the judgment of the trial court terminating his parental rights with respect to his daughter, Natalia M. (child), pursuant to General Statutes § 17a-112 (j) (3) (B) (i). On appeal, the respondent claims that the Department of Children and Families (department) violated his rights to due process of law by failing to provide adequate visitation with his child, which, he claims, ultimately led the court to terminate his parental rights after erroneously concluding that the department had made reasonable efforts at reunification, pursuant to § 17a-112 (j) (1). The respondent does not claim that the court erred in its conclusion that he was unable or unwilling to benefit from reunification efforts. Because the respondent challenges only one of the two bases for the court's determination that § 17a-112 (j) (1) had been satisfied, we conclude that the respondent's appeal is moot. The child was born in November, 2016. From the time of her birth, the department was involved in attempting to assist the child and her mother. On December 2, 2016, members of the New Haven Police Department were dispatched to the Three Judges Motel in New Haven (motel) to investigate a stabbing. The child's mother, the child, and, at times, the respondent were staying at the motel. The boyfriend of the child's mother came to the motel and was holding the child when the respondent returned to the motel. A scuffle ensued and the boyfriend, who was injured and bleeding, accused the respondent of stabbing him. During their search of the scene, the police found narcotics. The petitioner, the Commissioner of Children and Families (commissioner), took temporary custody of the child and filed a neglect petition. The court issued an order of temporary custody on December 6, 2016. Pursuant to the court's order, the respondent was given specific steps, including domestic violence and substance abuse treatment, as well as the requirement that he cooperate with service providers. The respondent failed to comply with these steps. The respondent also questioned whether he was the father of the child. The respondent had no contact with the child between December 2, 2016 and April, 2017, when his paternity was confirmed. Even after he knew he was the child's father, the respondent ignored letters from the department offering him visitation with the child, and he had no contact with her because he was attempting to avoid being served with a warrant for his arrest. On May 18, 2017, the court adjudicated the child, who has serious health concerns, neglected, and it committed her to the custody of the commissioner. The court also ordered final specific steps for the respondent, with which he also failed to comply. In August, 2017, the respondent was arrested on charges unrelated to the alleged stabbing and narcotics incident, and, thereafter, he expressed an interest in visiting with the child. On October 5, 2017, a permanency plan, which proposed termination of both parents' rights and adoption, and to which the respondent objected, was approved by the court. Following this approval, the department met with the respondent to discuss visitation and the child's medical needs. The department was concerned about the toll it would take on the child's health for her to endure a two hour commute to the prison, and it expressed that concern to the respondent, who agreed that visitation should not occur until the child's health improved. On December 5, 2017, the commissioner filed a petition for the termination of the parental rights of the respondent and the child's mother. The respondent underwent a psychological evaluation on April 3, 2018, which included an interactive session with the respondent and the child. Following the evaluation, the psychologist determined that the respondent had little understanding regarding the needs of the child or the impact of his actions on her. In May, 2018, the department began taking the child to the prison to visit with the respondent, the child's health having improved. From May, 2018 through November, 2018, the department took the child to the prison for visitation approximately once or twice per month, depending, primarily, on the child's health. On November 28, 2018, the court held a hearing on the petition for termination of parental rights. The court rendered judgment terminating such rights on December 12, 2018. Specifically, the court found in relevant part that (1) the department had made reasonable efforts at reunification and (2) the respondent was unable or unwilling to benefit from those efforts at reunification. The respondent appeals from that judgment on the sole ground that the court erred in finding that the department had made reasonable efforts at reunification. He argues that this finding was in error because the department had violated his right to due process by failing to provide him with adequate visitation with the child prior to his April 3, 2018 psychological evaluation, at which time the psychologist had observed his interactions with the child, with whom the respondent had not had the benefit of prior visitation. The commissioner argues that the respondent's appeal should be dismissed as moot because the respondent challenges only one of the two bases for the court's determination that the requirements of § 17a-112 (j) (1) had been satisfied. She contends that even if the respondent is successful in the claim he raises on appeal, there is no relief that can be afforded to him because there exists a separate independent basis for upholding the court's determination and it is unchallenged by the respondent. We agree and conclude that the respondent's appeal is moot because there is no practical relief that we could afford to him on appeal. "Mootness raises the issue of a court's subject matter jurisdiction . Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction . We begin with the four part test for justiciability . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . (2) that the interests of the parties be adverse . (3) that the matter in controversy be capable of being adjudicated by judicial power . and (4) that the determination of the controversy will result in practical relief to the complainant.... [I ]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow . In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way." (Citations omitted; emphasis altered; internal quotation marks omitted.) In re Jorden R. , 293 Conn. 539, 555-56, 979 A.2d 469 (2009). Section 17a-112 (j) (1) "requires a trial court to find by clear and convincing evidence that the department made reasonable efforts to reunify a parent and child unless it finds instead that the parent is unable or unwilling to benefit from such efforts. In other words, either finding, standing alone, provides an independent basis for satisfying § 17a-112 (j) (1)." (Emphasis altered.) Id., at 556, 979 A.2d 469. In the present case, the court found that both alternatives set forth in § 17a-112 (j) (1) had been satisfied-the department had made reasonable efforts to reunify the respondent with the child, and the respondent was unable or unwilling to benefit from reunification efforts. Because the respondent challenges only one of the two separate and independent bases for upholding the court's determination that the requirements of § 17a-112 (j) (1) had been satisfied, even if we were to agree with his claim, the fact that there is a second independent basis for upholding the court's determination, which he does not challenge, renders us unable to provide him with any practical relief on appeal. The appeal is dismissed. Specifically, the court found, by clear and convincing evidence, that "[t]he child has been found in a prior proceeding to have been neglected . AND the father has . failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, [he] could assume a reasonable position in the life of the child ." The court also found that termination of the respondent's parental rights would be in the best interest of the child, pursuant to § 17a-112 (j) (2). General Statutes § 17a-112 (j) (1) provides in relevant part: "The Superior Court . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the [department] has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts ." The respondent was arrested and charged with various crimes. He has a long criminal record and drug abuse history, which continued even after the start of these proceedings. For most of these proceedings, the respondent was in prison. The child's mother consented to the termination of her parental rights and is not a party to this appeal. One visit in October, 2018, was canceled because the department's visitation supervisor was ill.

12497671

STATE of Connecticut v. Larry Lamar STEPHENSON

State v. Stephenson

2018-05-01

AC 38674

528

542

187 A.3d 528

187

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:32.687249+00:00

Fastcase

STATE of Connecticut v. Larry Lamar STEPHENSON

STATE of Connecticut v. Larry Lamar STEPHENSON AC 38674 Appellate Court of Connecticut. Argued February 5, 2018 Officially released May 1, 2018 James P. Sexton, assigned counsel, with whom were Emily Graner Sexton, assigned counsel, and, on the brief, Marina L. Green, assigned counsel, and Megan L. Wade, assigned counsel, for the appellant (defendant). Nancy L. Walker, assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Paul J. Ferencek, supervisory assistant state's attorney, for the appellee (state). Sheldon, Bright and Bear, Js.

7953

46832

SHELDON, J. The defendant, Larry Lamar Stephenson, appeals from the judgments of conviction, rendered after a jury trial, on charges of failure to appear in the first degree in violation of General Statutes § 53a-172 (a) (1) ; possession of narcotics in violation of General Statutes § 21a-279 (a) ; engaging police in a motor vehicle pursuit in violation of General Statutes § 14-223 (b) ; falsely reporting an incident in the second degree in violation of General Statutes § 53a-180c (a) (1) ; and interfering with an officer in violation of General Statutes § 53a-167a (a). On appeal, the defendant claims that (1) the trial court abused its discretion and deprived him of his sixth amendment right to counsel by denying his request for a recess to discuss with his attorney the terms of a plea deal offered by the court; and (2) the evidence adduced at trial was insufficient to sustain his conviction of possession of narcotics. We affirm the judgments of the trial court. The jury reasonably could have found the following facts. At approximately 10:15 p.m. on the night of October 9, 2013, Sergeant Richard Gasparino, a member of the narcotics and organized crime unit of the Stamford Police Department, was patrolling the east side of Stamford with three fellow officers in an unmarked Chevrolet Malibu. Gasparino pulled into the parking lot of 1 Lawn Avenue, a multiunit public housing complex, which is known as a high crime area due to narcotics activity and thus is regularly patrolled. Upon entering the parking lot, Gasparino observed a silver Jeep Liberty bearing license plate number 388 ZTO, idling with its lights off parked next to a dumpster, with a black male sitting in the driver's seat. As Gasparino drove past the Jeep Liberty, it sped out of the lot "at a fairly high rate of speed." Finding that suspicious, Gasparino turned his vehicle around and followed the Jeep Liberty. After the Jeep Liberty exited the parking lot onto Lawn Avenue, it accelerated. One of the other officers in the Malibu then put a flashing emergency light on the top of the vehicle and activated it as Gasparino pursued and attempted to stop the Jeep Liberty. Gasparino notified his dispatcher that he was attempting to stop a fleeing vehicle, as he followed it onto Hamilton Avenue. Gasparino followed the Jeep Liberty onto Glenbrook Road, at which time Officer Wilgins Altera, driving a marked cruiser, took over the lead in the pursuit. Altera, in addition to other officers who had joined in the pursuit, followed the Jeep Liberty in their marked vehicles with their lights and sirens on. The Jeep Liberty proceeded erratically through residential areas and into downtown Stamford, trying to elude the pursuing vehicles by weaving in and out between other moving vehicles, crossing over the yellow line, and disregarding traffic signals and stop signs. The Jeep Liberty was then pursued onto Interstate 95, northbound, on which it travelled to the next exit, exit nine, where it exited onto Seaside Avenue. There it turned left onto East Main Street and travelled approximately fifty yards before turning back onto Interstate 95, in the southbound lanes, where it encountered "gridlock" traffic and was forced to come to a "[d]ead stop." When this occurred, Altera and Gasparino also stopped their vehicles, then Altera exited his vehicle, "drew [his] sidearm and ran up around the front of [his] vehicle and to the front passenger side of the suspect's vehicle." While standing at the passenger's side window of the Jeep Liberty, Altera ordered the operator to turn off the engine and exit the vehicle. Although Altera repeated that order several times, the operator did not acknowledge Altera and instead continued looking forward for about thirty seconds to one minute. The operator finally turned his head to look directly at Altera, "then proceed[ed] forward, kind of jolted the car a little bit forward making contact with a vehicle." The Jeep Liberty finally "inch[ed] its way around traffic, and then started heading . southbound [once again] on [Interstate] 95." Altera was unable to get back to his car in time to follow the Jeep Liberty, which had made its way into the breakdown lane, so he crossed through the traffic on foot to get a view of where it was heading. Altera lost sight of the vehicle as it appeared to be "heading off of exit eight." Because of the heavily congested traffic, neither Altera nor Gasparino was able to pursue the Jeep Liberty, so Gasparino "put out over [the police] dispatch . for surrounding units to start looking for the vehicle...." Surmising that the Jeep Liberty likely exited the interstate at exit eight, Gasparino, too, started looking for the vehicle in that vicinity, "[b]asically . the downtown area." Shortly thereafter, Gasparino learned that the Jeep Liberty had been found abandoned by Officer Jerry Junes at the Marriott Hotel in downtown Stamford, approximately two hundred yards from exit eight. Junes spoke to a patron at the hotel bar, who stated that he had seen a man exit the Jeep Liberty and run away. He described that man as a heavyset black male, five foot, nine inches, to six feet tall, wearing a green or dark baseball cap, a gray sweatshirt and jeans. Junes reported that description to his dispatcher. Because the vehicle was found unattended, it had to be inventoried and towed. Gasparino and Officer Louis Vidal seized several items from the vehicle. On the driver's seat of the Jeep Liberty, Gasparino found a driver's license belonging to the defendant. In the driver's door compartment, Vidal discovered "a clear plastic wrap which contained a white rock-like substance," that appeared, and was later confirmed, to be crack cocaine. The officers also found three items of mail in the center console-two letters and one bank statement-which were addressed to the defendant. Also in the center console of the vehicle, the officers found a bottle of oxycodone, prescribed to Nicole Cyboski, who was a known drug user with a criminal record. While the officers were searching the vehicle, they received a notification from their dispatcher that "there was a party on the line that was reporting that vehicle stolen, the one that we were chasing." The caller identified himself, by name, as the defendant, and stated that he had parked his Jeep Liberty near Lawn Avenue in Stamford, with the keys in it, and crossed the street to use the bathroom at Dunkin Donuts. When he returned to the vehicle, he reported, it was gone. He indicated that he was reporting the theft "to cover my footsteps so that [it] could be shown that I wasn't the one driving the car." The defendant claimed to be calling from Norwalk, but the call was traced to a location in Stamford within a two block radius of the intersection of Orange and Lockwood, just one block away from 1 Lawn Avenue. With that information, Gasparino and his three fellow officers drove to the intersection of Lockwood and Orange to look for the caller, who they considered a possible suspect. When they entered the parking lot, they observed two or three people standing in the back staircase of a housing complex, an area where people often hung out, that was illuminated with "flood lighting." The officers saw someone in that location who matched the description of their suspect-a black male wearing a gray sweatshirt and jeans. They believed that that man, who was using a cell phone, looked like and met the physical description of the defendant, as shown on the driver's license found in the Jeep Liberty. Gasparino also testified that he knew the defendant from dealing with him in the past. On that basis, they pulled up to the staircase and stopped their car. "The minute [their] car doors open[ed], that individual took off running northbound through the complex." He was wearing a baggy gray sweatshirt and was running "at a high rate of speed." The four officers chased the suspect on foot, until he jumped down a retaining wall and ran down the street, where they lost him. The officers then set up a perimeter around the area, as additional officers responded and joined in the search. Approximately three minutes later, Sergeant Sean McGowan saw an individual running across East Main Street. McGowan and other officers pursued and apprehended the defendant in the parking lot of Sergio's Pizza, near the intersection of Lawn Avenue and East Main Street. Sergio's Pizza is next to Dunkin Donuts, across the street from 1 Lawn Avenue. The defendant was arrested on charges of failure to appear in the first degree in violation of § 53a-172 (a) (1) ; possession of narcotics in violation of § 21a-279 (a) ; engaging police in a motor vehicle pursuit in violation of § 14-223 (b) ; falsely reporting an incident in the second degree in violation of § 53a-180c (a) (1) ; and interfering with an officer in violation of § 53a-167a (a). After he was found guilty by a jury on those charges, the court imposed a total effective sentence of five years incarceration, consecutive to a sentence that he was then serving, followed by five years of special parole. This appeal followed. I The defendant first claims that the trial court abused its discretion and violated his constitutional right to counsel by denying his request for a recess to discuss with his attorney the terms of a plea deal offered by the court. We are not persuaded. The following procedural history is relevant to our discussion of this claim. On the morning of July 21, 2014, just before the start of evidence at trial, the court, White, J. , had a discussion with counsel on the record regarding various plea agreements that had been offered to, but rejected by, the defendant. Following a lengthy recitation by counsel as to the various pleas that the defendant had considered, the court stated, inter alia: "The only plea I'd accept would be an open plea, with no recommendation at all. And the court will review a [presentence investigation report], hear the arguments and make a decision." When asked if he understood what that meant, the defendant said that he did, but that he did not want to accept that offer, that he did not want to take any offer, and that he had spoken with his attorney and was ready to proceed to trial. The trial thus proceeded. The state began the presentation of its evidence against the defendant on July 21, 2014, before Judge Colin. On July 23, 2014, at some point prior to the luncheon recess, the court adjourned for the day, planning to reconvene the next morning. Just before the court adjourned, counsel for the defendant asked the court's permission to remain in the courtroom so that the defendant's mother could "just have two seconds to communicate with him" and "have a quick colloquy about a potential settlement." The court left that decision to the discretion of the judicial marshals, then adjourned for the day. The record does not reveal whether the requested colloquy took place, or, if it did, how long it lasted. The next morning, Judge White took the bench to discuss plea negotiations once again. The court then indicated that it had met with the prosecutor and defense counsel the preceding afternoon, at which time the prosecutor had offered to drop the narcotics charge and the interfering with an officer charge, and to recommend a sentence of five years incarceration on the remaining three charges, to be served concurrently with the sentence the defendant was then serving. The court told counsel that it would consider the state's offer overnight. The next morning, July 24, 2014, the court met with counsel in chambers and informed them that it would accept the state's recommendation of five years, but only as a floor, and that Judge Colin would do the actual sentencing and could impose a sentence of up to seven years consecutive to the sentence that the defendant was then serving. The state made it clear that it was looking for a sentence of no more than five years incarceration, to be served concurrently with the sentence that the defendant was already serving. The defendant and his attorney asked for more time for him to consider the court's offer, his attorney indicating that they had only had about seven uninterrupted minutes between the in-chambers conference with Judge White and the calling of the defendant's case, to discuss the court's offer. The defendant asked to come back the next day or the following week to "make a decision...." His attorney told him to ask for a ten minute recess, but the defendant indicated to his attorney that the court had already told him no. The court responded that it had already passed the defendant's case to give him time to consider the offer. The court explained that it was not going to entertain further discussions because they were in the midst of trial and the jury was waiting. The court then recessed to await Judge Colin for trial to resume. The defendant claims that the trial court abused its discretion and violated his constitutional right to counsel by not granting his request for a ten minute recess to further discuss with counsel the plea offered by the court. The sixth amendment provides that in all criminal prosecutions, the accused shall enjoy the right to the effective assistance of counsel. U.S. Const., amend. VI. This right is incorporated against the states through the due process clause of the fourteenth amendment. See U.S. Const., amend. XIV, § 1 ; Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799 (1963). "Although the defendant couches his claim on appeal in terms of a denial of his constitutional right [to counsel], we will review the trial court's refusal to grant a continuance for an abuse of discretion. Even if the denial of a motion for a continuance . can be directly linked to a claim of a denial of a specific constitutional right, if the reasons given for the continuance do not support any interference with the specific constitutional right, the court's analysis will revolve around whether the trial court abused its discretion.... In other words, the constitutional right alleged to have been violated must be shown, not merely alleged." (Citation omitted; internal quotation marks omitted.) State v. Godbolt , 161 Conn. App. 367, 374 n.4, 127 A.3d 1139 (2015), cert. denied, 320 Conn. 931, 134 A.3d 621 (2016). Furthermore, "broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance of counsel." (Internal quotation marks omitted.) Morris v. Slappy , 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed. 2d 610 (1983). "The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion.... "A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court's discretion will be made.... To prove an abuse of discretion, an appellant must show that the trial court's denial of a request for a continuance was arbitrary.... There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.... In the event that the trial court acted unreasonably in denying a continuance, the reviewing court must also engage in harmless error analysis.... "Among the factors that may enter into the court's exercise of discretion in considering a request for a continuance are the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; the defendant's personal responsibility for the timing of the request; [and] the likelihood that the denial would substantially impair the defendant's ability to defend himself.... We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial.... "Lastly, we emphasize that an appellate court should limit its assessment of the reasonableness of the trial court's exercise of its discretion to a consideration of those factors, on the record, that were presented to the trial court, or of which that court was aware, at the time of its ruling on the motion for a continuance." (Internal quotation marks omitted.) State v. Godbolt , supra, 161 Conn. App. at 374-75, 127 A.3d 1139. "The trial court has the responsibility to avoid unnecessary interruptions, to maintain the orderly procedure of the court docket, and to prevent any interference with the fair administration of justice.... Once a trial has begun . a defendant's right to due process . [does not entitle] him to a continuance upon demand." (Internal quotation marks omitted.) Id., at 376, 127 A.3d 1139. Our review of the record reveals that the defendant was afforded ample time to consider various plea offers extended to him throughout the pendency of his case, and, in fact, while his jury trial was underway. The record reflects that the defendant had considered multiple offers extended by the state, and had expressed that he did not want to accept any plea at all, as of the morning of the commencement of the presentation of evidence. The court, at the request of the state, canvassed the defendant thoroughly that morning. The record further reflects that the court clearly stated to the defendant before the start of evidence that the only offer the court would entertain was an open plea with no recommendation. The record also reflects that the defendant was offered ample time to consider the offers extended on July 23 and July 24, 2014. Although the record does not reflect at what time counsel met with Judge White in his chambers on the morning of July 24, 2014, or at what time Judge White addressed the parties from the bench, it does reveal that the defendant's case was "passed" to afford him time to discuss the court's offer with his attorney. The court noted that it was not going to entertain further discussions, referring to the extensive discussions that already had taken place, a clear indication that the court did not regard the defendant's request for additional time as legitimate. The court's view that further time was unnecessary is particularly understandable in that the court's offer basically left the defendant at risk to receive the maximum sentence permissible for the charges to which he would plead guilty. It was thus substantially similar to the open plea offer the court told the defendant it would accept before evidence started-an offer the defendant rejected. Although defense counsel suggested a ten minute recess, the defendant himself sought a longer period of time, either a full day or until the next week, to consider the court's offer. Moreover, Judge White did, in fact, recess, so that Judge Colin could take the bench and resume the jury trial. There is nothing in the record to suggest that the defendant was precluded from speaking to his attorney during that recess, the duration of which is also missing from the record. On the basis of the foregoing, we conclude that the trial court properly considered the legitimacy of the defendant's request for a recess to further consider its plea offer, the timing of that request for a continuance, and the impact on the litigants and, in particular, the jury, which was waiting to resume hearing evidence when the defendant made his request. Because the court's denial of the defendant's request was neither unreasonable nor arbitrary, we cannot conclude that the court abused its discretion in so ruling. II The defendant also claims that the evidence presented at trial was insufficient to sustain his conviction of possession of narcotics because the state failed to prove that he had actual or constructive possession of the narcotics at issue. We disagree. "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 [finder of fact] 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 that] 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 whether the 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 [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... "Finally, [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 [finder of fact], 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 [finder of fact's] verdict of guilty." (Internal quotation marks omitted.) State v. Crespo , 317 Conn. 1, 16-17, 115 A.3d 447 (2015). "In order to prove that a defendant is guilty of possession of narcotics . the state must prove beyond a reasonable doubt that the defendant had either actual or constructive possession of a narcotic substance.... Actual possession requires the defendant to have had direct physical contact with the narcotics.... Constructive possession, on the other hand, is possession without direct physical contact.... To prove either actual or constructive possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence, and exercised dominion and control over it.... "Where . the [narcotic substance] was not found on the defendant's person, the state must proceed on the theory of constructive possession.... One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found.... Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.... In determining whether the attendant incriminating circumstances support an inference of constructive possession, the proper focus is on the relationship between the defendant and the contraband found in the [vehicle] rather than on the relationship between the defendant and the [vehicle] itself." (Citation omitted; internal quotation marks omitted.) State v. Nova , 161 Conn. App. 708, 718-19, 129 A.3d 146 (2015). Here, because the narcotics were not found on the defendant's person, the state was required to prove that he possessed them constructively. Although the defendant was not in the Jeep Liberty when it was recovered by the officers, the state presented circumstantial evidence from which the jury reasonably could have inferred that he had exclusive control of the Jeep just minutes before he was apprehended. The defendant was apprehended only a few blocks from the Marriott Hotel at which the vehicle was found, which is also within a few blocks of 1 Lawn Avenue, where Gasparino and his fellow officers first encountered the vehicle. Altera testified that he saw the operator of the Jeep Liberty when he drew his gun and approached the vehicle, ordering the operator to exit the vehicle several times, until the operator turned toward him and then drove away. Even though the defendant was not wearing a gray sweatshirt when he was apprehended, Altera identified him as the man he had seen driving the Jeep Liberty minutes earlier. Altera testified that the entire chase-from the time that he got involved in the pursuit of the Jeep Liberty to the time that the defendant was apprehended-took approximately fifteen to twenty minutes. Additionally, the defendant's mother, Chiquita Stephenson, testified that she owns a rental property in Stamford that the defendant manages for her and that he uses her Jeep Liberty when doing so. Not only was the defendant's driver's license found on the driver's seat in the vehicle, but several pieces of mail addressed to him were found in the center console, and the defendant himself admitted that he had been driving the Jeep that evening, just minutes before he called 911 and reported that it had been stolen. The jury thus reasonably could have found that the defendant was in possession and control of the Jeep Liberty and of the narcotics recovered therefrom. The jury also could have inferred from the defendant's conduct-speeding away upon seeing the police at 1 Lawn Avenue, leading them on a high speed chase and engaging in extensive efforts to evade them, not surrendering to Altera when so ordered, and then fleeing on foot-that he was attempting to avoid being caught with the narcotics in his possession. In other words, the jury could have concluded that the defendant would not have fled unless he knew of the presence and nature of the narcotics in the vehicle. On the basis of the foregoing, we conclude that the jury reasonably could have found, on the basis of the circumstantial evidence presented at trial, that the defendant constructively possessed the narcotics recovered from the Jeep Liberty he had been driving on the night of October 9, 2013. Accordingly, we conclude that the evidence presented at trial was sufficient to sustain the defendant's conviction of possession of narcotics. The judgments are affirmed. In this opinion the other judges concurred. At some point during the pursuit, Gasparino learned that the Jeep Liberty was registered to the defendant's mother, Chiquita Stephenson. This charge arose out of the defendant's failure to appear in court to answer to a charge that he violated his probation in an unrelated case. See footnote 3 of this opinion. The defendant was serving a four year sentence resulting from his violation of the conditions of his probation that was imposed on him after he was convicted of robbery and assault in 2007. The following discussion took place before Judge White before the first day of the trial: "[The Prosecutor]: Judge, as Your Honor is aware, we're going to be beginning a jury trial in this case this morning. And prior to bringing the jury out before Judge Colin, who will be the presiding judge for the trial, I thought it was prudent if I could just put on the record efforts that I have made with defense counsel to try to resolve the case- "The Court: All right. "[The Prosecutor]: -if the court pleases.... So, I would just-I-I know that earlier on, when the case was pretried, I believe by Judge Comerford, this would have been in the late winter, early spring. I was not involved in those discussions at that point because this is a part B matter, and the part B prosecutors were handling it. But my understanding that-and there's a record of this-whatever the-whatever the court's offer was, that was rejected. "And then in the summer time when I began preparing the case, I made efforts-[defense counsel] and I have had numerous discussions in trying to settle the case. And on July 3rd, I believe this is, actually, after-this was after jury selection had taken place, I offered the following disposition: possession of narcotics, engaging police in pursuit, issuing a false statement and failure to appear in the first degree would be a total effective jail sentence of five years on those counts, which would run concurrently with the sentence he's currently serving, which is four years. "I had earlier-if I could just backtrack a little bit. When this case was set down for trial, this-earlier this summer in June, my offer was five, jail, followed by three years of special parole. "After we picked a jury and counsel and I-and I had further discussions, I lowered the offered to what I had just indicated, a flat five year jail sentence with no special parole.... However, [the defendant] would have to lose credit for the time that he's in, been-been in jail because all of that credit, pursuant to [Department of Correction] regulations is being applied to his [violation of probation] sentence. That would be about nine months of-of lost time that he would have done. "I indicated to [defense counsel] that the defendant would have until July 10th to consider that offer; I believe that's a Thursday. And I indicated that I needed to know by one o'clock. That offer, apparently, the weekend came, I didn't hear anything and then I believe, thereafter, we had further discussions. And then at that point, I raised the offer to a total effective sentence of six years concurrent with the jail sentence-four year jail sentence he's currently serving. And, again, there would be no credit for time served. My understanding, as of last week, that that offer-that last offer was rejected, and so here we are today to begin the trial. "The Court: All right. Do you want to say anything, [defense counsel]? "[Defense Counsel]: Yes. One-two things. One, I did speak to the prosecutor and showed him a form that I filled out and had [the defendant] sign. And the form indicated that, please be advised that the state of Connecticut has accepted my counteroffer as follows, a guilty plea to engaging the police in a chase, possession of narcotics, false report of a crime and a failure to appear. The state agrees to give you one more year added to the four years you are serving on the [violation of probation] sentence. If you want this offer, please indicate by signing below. If you are refusing this offer, please indicate by signing below, as well. "And just for the record, I met with [the defendant] at the [Bridgeport Correctional Center], presented him with this contract, and this was on July 12th, which is a Saturday, and I did share that with [the prosecutor]. "And I shared with him the fact that he at first rejected it after spending some time going over this with him, and prior to walking out of the jail, he called me back, the marshals opened up the cells, and he signed it, saying that he accepts that. "So-so, I think that's important to put on the record. And I'd ask the court to canvass [the defendant] as to whether, in fact, he had-he had rejected this offer. And also, there was a second offer after we started trial of six years flat, with no special parole- "[The Prosecutor]: Right. That's the current offer. "[Defense Counsel]: The current offer-and I asked the court to canvass him on this July 12th offer that he rejected first and then signed after, and also whether he, in fact, rejects the current offer of six years flat. "And I would just add, just to the benefit of [the defendant] and if there's any fault on my own, the state did say that he has to have this done by the twelfth, which is in the middle of the week, and I wasn't able to get there till Saturday. And as soon as he-I got a signed page, I e-mailed [the prosecutor] that same night, saying that it's twelve o'clock, this is what's going on, and he said we'll talk about it on Monday. So, if, in fact, he-the-he missed his ship because of me giving it Saturday, not Thursday, I just want to put that out there so it won't be charged against him. "[The Prosecutor]: Well, I mean-I can- "The Court: Hold-hold on for a second. I've got to admit, [defense counsel], I really don't understand what you said to me. You made a number of statements and it-it sounds to me like the bottom line is, the-[the defendant] has rejected every offer that's been made to him. You said something about him accepting an offer or-and apparently, he decided he wanted to accept an offer after he rejected it. "[The Prosecutor]: It was accepted after it was no longer open. "[Defense Counsel]: May-may- "The Court: Then that's not- "[Defense Counsel]: -may I approach? "The Court: -that's not accepting an offer, then. Well, I don't really need to-to see that, I'm not really sure what you're handing me. "[Defense Counsel]: I want-I'm just trying to clarify it, with your confusion. What I said was that I presented him with a contract and it had two lines, one is accept or reject, and the offer is what I read out to you on the record. I said prior to-to me leaving, he had signed that he rejected. But before I walked out of the prison, he called for the marshals to open up the cells. They opened up the cells; he said, bring that paper back. He scribbled out the rejection and signed that he accepted it. That's what I put on the record. "[The Prosecutor]: And that was on the- "The Court: Okay. "[The Prosecutor]: And that was on the twelfth; the offer was open until one o'clock on July 10th. And so it wasn't open any more. I then upped the offer one year-and all of this was subject to Your Honor's approval. "The Court: All right. Well, the bottom line is, the state made various offers, when the offers were open, [the defendant] didn't accept them. And if an offer's been rejected, that's it, you can't accept-reject an offer and then accept it. So, I take it, well, the last best offer was six years to serve. "[The Prosecutor]: That's correct. "The Court: [Defendant], could you stand up, please. And I take it that's not open anymore? Or the state's not extending that anymore? "[The Prosecutor]: I'll-that-that would be subject to Your Honor's approval. "The Court: Well, I'm-you picked a jury, your witnesses are here, you're ready to go. The only plea I'd accept would be an open plea, with no recommendation at all. And the court will review a [presentence investigation report], hear the arguments and make a decision. So [defendant], did you understand what I just said? "[The Defendant]: Yes, sir. "The Court: Do you want to do that? "[The Defendant]: No, I don't want to take that. "The Court: Okay. And you understand the various offers you were made, correct? "[The Defendant]: I was offered five years with three years special parole. "The Court: Okay. And you rejected that, correct? "[The Defendant]: I rejected that. Then- "The Court: And then you were offered-what was it, five years- "[The Prosecutor]: Flat-flat five. "The Court: Flat five years to serve. "[The Defendant]: No. To my knowledge, I was-I was offered a year concurrent to my four years- "The Court: Okay. "[The Defendant]: -which would have come up to five. And the last time I got here, they said it was two years concurrent to the four, which I already had, which would make it six-well, five for the first one, and then six in total for the-where we stand here and we're talking about now. "The Court: Okay. But the bottom line is, you don't want to enter a guilty plea, which is your right, you have a right to a trial. So, you don't want any offer then, correct? "[The Defendant]: No, sir. "The Court: All right. "[The Prosecutor]: Okay. "The Court: And you've talked to your attorney about this? "[The Defendant]: Yes, sir. "The Court: Okay. And you're ready to go forward? "[The Defendant]: Yes. "The Court: Okay. Thank you. "[The Prosecutor]: Thank you, Your Honor. "The Court: We'll have Judge Colin come out, and you can start your trial. Thank you." The following colloquy occurred before Judge White about a plea settlement before trial resumed before Judge Colin: "The Court: . The trial in this case is ongoing. Yesterday afternoon, I believe it was, [the prosecutor and] defense [counsel] came to me, [and] proposed a resolution to the case. And the bottom line of the resolution was a sentence of five years to serve concurrent with the sentence the defendant is now serving. And the lawyers jointly asked me to accept the recommendation. I indicated to the lawyers that I was going to think about it overnight. "This morning, I met with counsel. I told counsel I would accept their proposal as a floor including no time-no credit for time served. And that was a part of the original offer, by the way. And correct me, gentlemen, if I'm misstating something. "And we passed the case, [defense counsel], so you could discuss it with your client. And I'm told your client doesn't want it, which is fine. That's his right. "But the parties approached the court with a resolution, and now the defendant doesn't want it. I'm not going to entertain-I'll give you a chance to speak, but I'm not going to entertain any more discussions. If the defendant is acquitted, he's going to walk and that will be the end of it. And if he's convicted, I think that he's facing a maximum of seven years consecutive to the amount of time he's doing now. "[The Prosecutor]: Right. The only thing I would add is, I also agreed at counsel's request to-for this agreement, I would drop the possession of narcotics charge and also the interfering charge. So, he would be only pleading to three charges. That would be failure to appear, which is a [class] D felony; engaging police in pursuit, which is an A misdemeanor; and issuing a false statement, which is an A misdemeanor. "The Court: Let me back up for a minute; what are the charges he's being tried on right now? "[The Prosecutor]: Right now, he's being charged with one count of failure to appear in the first degree. "The Court: That's five years. "[The Prosecutor]: Right. Second count is possession of narcotics. "The Court: That's another seven years, so we're up to twelve years. "[The Prosecutor]: Count two is engaging police, that's- "The Court: That's another year, thirteen. "[The Prosecutor]: Falsely reporting an incident, which is an additional year. "The Court: Fourteen. "[The Prosecutor]: And then finally, interfering, that's fifteen years. "The Court: That's another year. It's fifteen years of exposure consecutive to the time he's now doing. I just want to restate this, if I have it correctly, the state and the defense came to me and they-both wanted to resolve the case for five years concurrent to the sentence he's now serving with no credit for time served. I said I would accept that as a floor with a maximum of, I believe it was seven years because you had indicated, [prosecutor], you were only going to put him to plea on failure to appear- "[The Prosecutor]: And two misdemeanors. "The Court: And two misdemeanors. "[The Prosecutor]: So, his exposure would be at less than half at the-rather than proceeding to trial now. "The Court: All right. So, you want to say something, [defense counsel]? "[Defense Counsel]: Yes, Your Honor, just in defense of the defendant, what I presented to him this morning was a little different than what the state proposed. The state, as Your Honor sort of just indicated, proposed five years to run concurrent with the four, closed, end of deal. I presented to him that the court said that that five would be a floor and, essentially, this would be an open sentence where the judge, Judge Colin, Your Honor, said you'd send it back to Judge Colin. "The Court: Yes, I didn't add that, but I was not going to be the sentencing Judge. Judge Colin has sat through the evidence- "[Defense Counsel]: Correct. Okay. "The Court: -and he's going to do the sentencing. And, by the way, I haven't discussed this with Judge Colin. "[Defense Counsel]: Thank you, Judge. And so what I presented to [the defendant] was that Judge Colin would do the sentence and, essentially, it would be an open sentence with Judge Colin to give him up to seven years, and it could be consecutive to the five, so it can be twelve years, it could be a twelve year sentence. I can't make any promise. And I explained to him, that's not-I understand that's not the agreement that I presented to you yesterday, but having taken it to Your Honor, Judge White, that is, for the record, Your Honor did not accept the deal that we proposed and essentially made an open sentence with a floor of five? "[The Prosecutor]: Exactly. "The Court: Floor of five with no credit for time served. "[Defense Counsel]: And so that was a little different than what we went over yesterday. "The Court: That's true. "[Defense Counsel]: I had about maybe ten to twelve minutes to kind of explain that to him. His mother did step in. And so, lots gone on today, and so he was not able to grasp all this in seven minutes and understand what all this means. And he says, well, I don't understand it, so I can't accept it. "The Court: Okay. Well, you had a chance to talk to him yesterday about what the state had offered, and I modified that offer somewhat. "[Defense Counsel]: Yes. "The Court: I wasn't going to accept what the state and defense had proposed, so my offer was a little different. And you had time to talk to your client about it; the jury is waiting. So, what, if anything, do you want to say, [defendant]? "[The Defendant]: I mean, I'm gettin' all different type of offers, and like you said, I'm really not able to commit and make any type of plea bargain because the way it's all coming to me at once, it's this, then it's this, then it's that. So, if you would like, you know, to come back maybe Friday or next week. "The Court: No. We're going forward today. "[The Defendant]: Well, other than that, I can't really comprehend everything that's coming at me at this time in a twelve minute span, so I'm not able to make a decision about my life in twelve minutes. "The Court: Okay. All right. Well, I will just indicate that the last best offer that the court would accept was the five-it was the five years to serve, concurrent, with no credit for time served, and I'd order a [presentence investigation report], Judge Colin would do the sentencing, I would not. And Judge Colin-I heard the [prosecutor] say it, I believe I heard the [prosecutor] say that the state's not looking for any more than five years- "[The Prosecutor]: No. I would only-I know [the defendant] from past cases. I'm familiar with his background. I know the court wanted a [presentence investigation report]. I would not be asking more than the sentence of five years to run concurrently. In essence it would amount to an additional time of about a year and ten months more than what he is serving now. "The Court: Okay. So, the state's not looking for any more than five years to serve concurrent without any credit for time served, and the state has said that. "[The Prosecutor]: Correct. "The Court: And if Judge Colin goes along with that, fine. But if Judge Colin wants to impose a greater sentence, it would be up to him. So, you understand what I just told you? "[The Defendant]: Yes, sir. "The Court: And do you want to accept that or do you want to have-continue with your trial? "[The Defendant]: I'm not sure. "The Court: Well, it's one or the other, sir. "[Defense Counsel]: Do you need time to talk to me about it? "[The Defendant]: Of course. "[Defense Counsel]: Request that. "The Court: What's that? "[The Defendant]: I did. He told me no. "The Court: I've already given you time. You've had time to talk. We've got a jury waiting. So, if you don't want it, that's fine. It's your right. You're in the midst of a trial. "[The Defendant]: I never said I don't want it. I said I can't say yes or no. "The Court: Okay. "[Defense Counsel]: Can we have ten minutes, please? "The Court: I'll let Judge Colin know. You can bring out the jury, and you can resume your trial. Thank you. You can see Judge Colin. Thank you. "(Recess)." The defendant also could have achieved the same result as accepting Judge White's offer at any time after the hearing before Judge White by simply entering an open plea to the three charges as to which the state was seeking guilty pleas. His maximum exposure would have been seven years consecutive to his current sentence, precisely the offer made by Judge White. The defendant also claims that the court constructively violated his sixth amendment right to counsel by denying his request for additional time to consider the court's plea offer, and that because that denial arose at a critical stage in the proceedings, prejudice arising from that denial is presumed pursuant to United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984). Although the defendant is correct in his assertion that the decision of whether to accept a plea offer is a critical stage of a criminal proceeding at which a criminal defendant is constitutionally entitled to the effective assistance of counsel, we cannot conclude that the court's denial of a ten minute recess resulted in a "complete failure" of representation by his attorney, as required to trigger the automatic presumption of prejudice under Cronic . Id., at 662-66, 104 S.Ct. 2039.

12497670

STATE of Connecticut v. Jasmine LAMANTIA

State v. Lamantia

2018-05-08

AC 40157

513

528

187 A.3d 513

187

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:32.687249+00:00

Fastcase

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

STATE of Connecticut v. Jasmine LAMANTIA

STATE of Connecticut v. Jasmine LAMANTIA AC 40157 Appellate Court of Connecticut. Argued January 9, 2018 Officially released May 8, 2018 Conrad O. Seifert, for the appellant (defendant). Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Michael Regan, state's attorney, and Christa L. Baker, assistant state's attorney, for the appellee (state). DiPentima, C.J., and Alvord and Pellegrino, Js.

7415

45454

DiPENTIMA, C.J. The defendant, Jasmine Lamantia, appeals from the judgment of conviction, rendered after a jury trial, of interfering with an officer in violation of General Statutes § 53a-167a and tampering with a witness in violation of General Statutes § 53a-151. On appeal, the defendant claims that the evidence was insufficient to support her conviction for these offenses. We agree with the defendant with respect to the interfering with an officer count, but disagree as to the tampering with a witness count. Accordingly, we reverse in part and affirm in part the judgment of the trial court. The jury reasonably could have found the following facts in support of the verdict. On the evening of July 24, 2015, Earl F. Babcock and Jason Rajewski spent three or four hours socializing at a bar in Norwich. At that time, Rajewski was involved romantically with the defendant. At some point that evening, the defendant arrived at the bar. After midnight, Babcock and Rajewski followed the defendant to a house located at 18 Bunny Drive in Preston. At this location, some teenagers, including the defendant's son, Joshua Bivens, were having a party. Upon her arrival, the defendant parked her car and immediately ran into house. Babcock parked his car and remained outside with Rajewski. David Moulson, the defendant's former boyfriend, drove his vehicle into the driveway, and directed the headlights at Babcock and Rajewski. Moulson, exited his car and ran toward them while swinging his arms. Babcock fell over backwards, as he was "disoriented" by the headlights shining in his eyes. Moulson and Rajewski engaged in a verbal and physical altercation that ended with Rajewski striking Moulson with his right hand and Moulson bleeding from his face. Moulson ran into the house and called the police. Babcock and Rajewski left after hearing from the defendant about Moulson's phone call. Five minutes later, Babcock dropped Rajewski off at his house, and then proceeded home. Jonathan Baker, a Connecticut state trooper, received a dispatch to 18 Bunny Drive for an active disturbance at approximately 2:30 a.m. Baker spoke with Moulson in the presence of the defendant. Moulson claimed that two males, one of whom he identified as Rajewski, had assaulted him as he exited his vehicle. Baker obtained an address for Rajewski, and proceeded to that address to continue the investigation. At Rajewski's residence, Baker knocked on the door. Rajewski indicated that he knew why Baker was there and then presented his cell phone to Baker. Rajewski asked Baker to read the text messages that he had received from the defendant. Baker read the text conversation and concluded that the defendant had requested that Rajewski lie to him. Rajewski then received a call from Babcock and permitted Baker to answer his phone. Baker took Rajewski into custody, drove him to the state police barracks for processing, and then went to Babcock's house. Following a conversation, Baker arrested Babcock and transported him to the barracks for processing. Later that morning, the defendant arrived at the barracks to pick up Moulson, who also had been arrested. Baker confronted the defendant about the text messages that she had sent to Rajewski, and then placed her under arrest. The defendant subsequently was charged, tried, and convicted of interfering with a police officer in violation of § 53a-167a(a) and tampering with a witness in violation of § 53-151 (a). The court imposed a concurrent sentence for each count of one year incarceration, execution suspended, and two years of probation. This appeal followed. Additional facts will be set forth as necessary. On appeal, the defendant claims that the evidence was insufficient to sustain her conviction. We begin by setting forth our well established standard of review. "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 [finder of fact] 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 whether the 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 [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... "Finally, [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 [finder of fact], 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 [finder of fact's] verdict of guilty." (Internal quotation marks omitted.) State v. Crespo , 317 Conn. 1, 16-17, 115 A.3d 447 (2015) ; see also State v. Rodriguez , 146 Conn. App. 99, 110, 75 A.3d 798 (defendant who asserts insufficiency claim bears arduous burden), cert. denied, 310 Conn. 948, 80 A.3d 906 (2013). When a claim of insufficient evidence turns on the appropriate interpretation of a statute, however, our review is plenary. See State v. Webster , 308 Conn. 43, 51, 60 A.3d 259 (2013). I We first address the defendant's claim that the evidence was insufficient to support her conviction of interfering with a police officer. The defendant argues that our decision in State v. Sabato , 152 Conn. App. 590, 98 A.3d 910 (2014), aff'd, 321 Conn. 729, 138 A.3d 895 (2016), controls the present appeal. Specifically, she contends that her text messages to Rajewski, a verbal communication that did not constitute fighting words, cannot form the basis for a violation of § 53a-167a. We agree with the defendant. Section 53a-167a(a) provides in relevant part: "A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer . in the performance of such peace officer's . duties." Accordingly, "[t]he elements of this crime . are (1) a person obstructs, resists, hinders, or endangers, (2) a peace officer, (3) while the officer is in the performance of his or her duties." State v. Wearing , 98 Conn. App. 350, 355, 908 A.2d 1134 (2006), cert. denied, 281 Conn. 905, 916 A.2d 47 (2007). In State v. Briggs , 94 Conn. App. 722, 728, 894 A.2d 1008, cert. denied, 278 Conn. 912, 899 A.2d 39 (2006), we noted that this statute, which is broad in scope, proscribes behavior that hampers the actions of the police in the performance of their duties. "[A]ny act intended to thwart this purpose violates the statute." (Internal quotation marks omitted.) Id. Additionally, "[t]his statutory provision has been interpreted to require the intention to interfere with the performance of an officer's duties as a necessary element of the offense." State v. Flynn , 14 Conn. App. 10, 18, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S.Ct. 226, 102 L.Ed. 2d 217 (1988) ; see also State v. Briggs , supra, at 728, 894 A.2d 1008 (intent is necessary element of § 53a-167a ). On appeal, the defendant contends that the communication that formed the basis for her conviction of interfering with a police officer was nonviolent and nonthreatening text messages directed to Rajewski, not Baker. The following additional facts are necessary for our discussion. In the course of his investigation, Baker left Bunny Drive and proceeded to Rajewski's residence. Baker knocked on the door and asked if Rajewski knew why he was there. Rajewski responded affirmatively, and then handed Baker his cell phone. Rajewski requested that Baker read the text messages that he recently had received from the defendant. Baker testified that the text messages were "a conversation between [Rajewski] and [the defendant] about how their stories have to match and have to be on the same pages and the cops were coming and a couple of other things." Baker then explained that he had recorded the text message conversation into his police report. The defendant first texted Rajewski telling him that the "cops are coming," that he should "make sure [he was] bloody" and that she had stated to Baker that Moulson was abusive to her. Rajewski simply replied, "ok." The defendant then texted that Rajewski should wait outside because the police were coming to his residence and that he should delete this text conversation. Next, the defendant asked Rajewski to tell the police that Moulson had "stalked" her, that Rajewski should claim to have been involved in an altercation at a bar, had been bleeding when he arrived at Bunny Drive, and had followed her to Bunny Drive only because he loved the defendant. Finally, the defendant texted Rajewski that they needed "to stick with the same story" and that their statements needed "to match." Rajewski replied that he was going to tell the truth, specifically, that Moulson had "tried to kick [his] ass, so [Rajewski] beat him up." Rajewski's text messages conveyed that he was upset, and that "enough is enough." The defendant responded with a question mark, and then that his story needed to match hers. After additional conversation via text message, Rajewski again stated that "he was not going to tell a story, he's just going to tell what happened." Our analysis begins with State v. Williams , 205 Conn. 456, 459, 534 A.2d 230 (1987), where our Supreme Court considered claims that § 53a-167a was unconstitutionally vague and fatally overbroad. In that case, two police officers detained the defendant during the early morning hours because he matched the description of a burglar. Id., at 457-59, 534 A.2d 230. One of the officers asked the defendant to wait inside a police vehicle. Id., at 458, 534 A.2d 230. "The defendant refused to comply with [the] request. Increasingly 'out of control,' he started to swear at the police officers and, in a crescendo, to protest his detention. Observing that the noise had attracted onlookers, the [officers] decided that the defendant was causing a disturbance and arrested him for breach of the peace. Following standard police procedures, they attempted to handcuff the defendant but he had become 'totally out of control' and had to be forcibly 'subdued.' " Id. As a result of his resisting arrest, the defendant was convicted for violating § 53a-167a(a). Id., at 459, 534 A.2d 230. Our Supreme Court rejected the defendant's claim of insufficient evidence as to his conviction for violating § 53a-167a. Id., at 468-69, 534 A.2d 230. Next, it considered his claim that § 53a-167a was unconstitutionally vague and violated due process of law. Id., at 469, 534 A.2d 230. In rejecting this claim, the court explained that this statute was confined "to conduct that amounts to meddling in or hampering the activities of the police in the performance of their duties.... Furthermore, the conduct that the statute proscribes is limited to action intended to obstruct the police in the performance of their duties." (Citations omitted.) Id., at 471, 534 A.2d 230. The court also recognized that certain acts of "verbal resistance" fell within the ambit of § 53a-167a. Id."The statute's requirement of intent limits its application to verbal conduct intended to interfere with a police officer and excludes situations in which a defendant merely questions a police officer's authority or protests his or her action." Id., at 472, 534 A.2d 230. The court then turned to the defendant's claim that § 53a-167a was fatally overbroad. Id., at 472-74, 534 A.2d 230. First, it distinguished § 53a-167a from a Texas ordinance that the United States Supreme Court had determined to be overbroad. Id., at 472-73, 534 A.2d 230. It then stated: "Moreover, unlike the United States Supreme Court, this court has the power to construe state statutes narrowly to comport with the constitutional right of free speech.... To avoid the risk of constitutional infirmity, we construe § 53a-167a to proscribe only physical conduct and fighting words that by their very utterance inflict injury or tend to incite an immediate breach of the peace . By its terms, § 53a-167a is directed only at conduct that interferes with police and firemen in the performance of their duties. As we have said earlier, it encompasses only interference that is intentional.... This limiting construction, which we deem to be fully consistent with the intent of the legislature, preserves the statute's purpose to proscribe core criminal conduct that is not constitutionally protected." (Citations omitted; emphasis added; footnotes omitted; internal quotation marks omitted.) Id., at 473-74, 534 A.2d 230. Approximately twenty-seven years later, in State v. Sabato , supra, 152 Conn. App. at 590, 595 n.3, 98 A.3d 910, this court, sua sponte, raised the issue of whether § 53a-167a was limited to physical conduct and fighting words. In that case, the victim's cell phone was stolen from a nightclub. Id., at 592, 98 A.3d 910. The next day, the defendant sold this cell phone to a third party, who sought assistance in unlocking it. Id. The victim used a tracking application on her computer to locate her phone and then notified the police. Id. The third party, later relinquishing the phone, provided the police with a sworn statement, and notified the defendant that he was at the police station. Id., at 592-93, 98 A.3d 910. The defendant sent the third party a text message "telling him not to write a statement and to keep his mouth shut." (Internal quotation marks omitted.) Id., at 593, 98 A.3d 910. The state subsequently charged the defendant with attempt to interfere with a police officer. Id., at 594, 98 A.3d 910. Following his conviction, the defendant filed an appeal. Id. The defendant in Sabato claimed that the evidence was insufficient to sustain his conviction for attempt to interfere with a police officer. "First, he argues that § 53a-167a does not proscribe physical or verbal conduct directed against a third party . Second, he contends that applying § 53a-167a to his conduct, which was outside the presence of a police officer, would render the statute void for vagueness." Id., at 595, 98 A.3d 910. After oral argument, we ordered the parties to submit supplemental briefs on the applicability of State v. Williams , supra, 205 Conn. at 456, 534 A.2d 230. State v. Sabato , supra, 152 Conn. App. at 595 n.3, 98 A.3d 910. We concluded that State v. Williams , supra, 205 Conn. at 456, 534 A.2d 230, controlled the appeal. State v. Sabato , supra, 152 Conn. App. at 595, 98 A.3d 910. "Applying Williams to the present case, we conclude that there was insufficient evidence to convict the defendant of attempt to interfere with an officer." Id., at 596, 98 A.3d 910. "By long form information, the defendant was charged under § 53a-167a exclusively for a text message he sent to [the third party] . telling him not to write a statement and to 'keep [his] mouth shut.' These words cannot be construed to be 'fighting words that by their very utterance inflict injury or tend to incite an immediate breach of the peace.' State v. Williams , supra, [at 473, 534 A.2d 230]. They were therefore not proscribed by § 53a-167a. As a result, we conclude that there was insufficient evidence presented to sustain the defendant's conviction for attempt to interfere with an officer." State v. Sabato , supra, 152 Conn. App. at 596, 98 A.3d 910. Our Supreme Court granted the petitions for certification filed by the state and the defendant. State v. Sabato , 321 Conn. 729, 732-33, 138 A.3d 895 (2016). The state argued that this court erred in concluding that § 53a-167a excluded true threats or, alternatively, that the judicial gloss applied to that statute should include true threats. Id., at 740, 138 A.3d 895. The defendant countered that the state was attempting to save the conviction on the basis of a theory of guilt that had not been alleged or presented to the jury, and, therefore, constituted a violation of due process. Id., at 740-41, 138 A.3d 895. The court reviewed its prior interpretation of § 53a-167a in State v. Williams , supra, 205 Conn. at 456, 534 A.2d 230, noting first that the statute encompassed both verbal and physical conduct, subject to the intent requirement. State v. Sabato , supra, 321 Conn. at 741, 138 A.3d 895. It iterated the limiting construction that had been placed on the statute; namely, that § 53a-167a proscribed "only physical conduct and fighting words that by their very utterance inflict injury or tend to incite an immediate breach of the peace." (Emphasis added; internal quotation marks omitted.) Id., at 741, 138 A.3d 895. The court in Sabato rejected the state's true threats argument on the basis that it violated the theory of the case, and thus, due process. Id., at 742-45, 138 A.3d 895. In its analysis, the court expressly noted that the prosecutor had contended that the defendant's statement to the third party to refrain from providing a statement to the police comprised the actus reus of the offense. Id., at 745, 138 A.3d 895. "As we have explained, however, and as the state concedes, § 53a-167a does not proscribe such verbal conduct, and, therefore, the defendant's conviction under that statute cannot stand. " (Emphasis added.) Id., at 746, 138 A.3d 895. The state attempts to distinguish the present case from the Sabato opinions and State v. Williams , supra, 205 Conn. at 456, 534 A.2d 230. With respect to the latter, the state contends that the court in Williams "was careful not to preclude application of § 53a-167a to 'verbal conduct intended to interfere with a police officer' because such 'core criminal conduct' is not constitutionally protected speech, and, thus, falls within the ambit of § 53a-167a." In support, the state directs us to the following footnote from Williams : "This narrow construction [that § 53a-167a applies only to physical conduct and fighting words] is required by the constitutional right of free speech even though a broader construction of verbal conduct intended to interfere with a police officer to which we referred in our earlier discussion of vagueness would constitutionally suffice for the latter purpose." (Internal quotation marks omitted.) State v. Williams , supra, 205 Conn. at 473 n.6, 534 A.2d 230. As to the former, the state maintains that, contrary to the present case, it had failed to present evidence of specific intent to interfere in the Sabato prosecution. We are not persuaded by the state's interpretation of State v. Williams , supra, 205 Conn. at 456, 534 A.2d 230. In that case, our Supreme Court determined that, for purposes of the defendant's claim that § 53a-167a was unconstitutionally vague, verbal conduct, coupled with the intent requirement, sufficiently defined the statute and provided notice as to what was proscribed, and thus did not violate due process. Id., at 469-72, 534 A.2d 230. In order to ensure that the state did not run afoul of the constitutional right to free speech, however, our Supreme Court expressly limited its application to intentional interference consisting of either physical conduct or fighting words that inflicted injury or tended to incite an immediate breach of peace. Id., at 473, 534 A.2d 230. "This limiting construction, which we deem to be fully consistent with the intent of the legislature, preserves the statute's purpose to proscribe core criminal conduct that is not constitutionally protected." (Internal quotation marks omitted.) Id., at 474, 534 A.2d 230. Additionally, our Supreme Court recently endorsed this limitation. In State v. Sabato , supra, 321 Conn. at 746, 138 A.3d 895, it explicitly emphasized that " § 53a-167a does not proscribe such verbal conduct [that does not constitute fighting words] ." Additionally, we are not persuaded by the state's attempt to distinguish the present case from the Sabato decisions. Neither this court nor our Supreme Court based its decision on whether there was evidence that the defendant specifically intended to interfere with a police officer when he sent his text message to the third party. Rather, the focus of both courts was on the fact that the verbal conduct did not amount to fighting words and could not constitute a violation of § 53a-167a. The state also directs us to State v. Williams , 110 Conn. App. 778, 956 A.2d 1176, cert. denied, 289 Conn. 957, 961 A.2d 424 (2008). In that case, a Norwalk police sergeant effectuated a motor vehicle stop after observing a vehicle in a commercial parking lot at 2 a.m. Id., at 780, 956 A.2d 1176. All three men in the vehicle, including the defendant who was sitting in the back seat, appeared nervous and fidgety. Id., at 781, 956 A.2d 1176. The sergeant arrested the three men for trespassing, and the police found cocaine and marijuana in the vehicle. Id., at 781-82, 956 A.2d 1176. At the scene of the arrest, and later at the police station, the defendant identified himself to the police officers as "Zeke Williams." Id., at 782, 956 A.2d 1176. At the station, he provided the police with his correct social security number, address and birthplace. Id. Using an electronic database, the police determined the defendant's "actual identity to be Corey Williams, not Zeke Williams." Id. He subsequently was convicted of possession of narcotics with intent to sell and interfering with an officer. Id., at 783, 956 A.2d 1176. On appeal, the defendant claimed, inter alia, that the evidence was insufficient to support his conviction for violating § 53a-167a(a). Id., at 793, 956 A.2d 1176. Relying on our Supreme Court's decision in State v. Aloi , 280 Conn. 824, 911 A.2d 1086 (2007), we affirmed the defendant's conviction. Id., at 793-98, 956 A.2d 1176. We specifically reasoned that "[t]he defendant's providing a false name to police is verbal conduct that is equivalent to the defendant's refusal to give identification to the police in Aloi , in that it hampered, or hindered, the ability of the police to perform their duties properly, quickly and efficiently." Id., at 797, 956 A.2d 1176. Accordingly, we concluded that the defendant's sufficiency claim failed. Id., at 798, 956 A.2d 1176. At first blush, State v. Williams , supra, 110 Conn. App. at 778, 956 A.2d 1176, appears to support the state's claim that verbal conduct specifically intended to interfere with a police officer constitutes a violation of § 53a-167a. Our opinion, however, did not specifically address the question of whether the verbal conduct of the defendant constituted a violation of § 53a-167a. Id., at 793-98, 956 A.2d 1176. Furthermore, a review of the briefs filed in that case reveals that the defendant argued that the testimony of one officer should have been discounted, the defendant provided his proper social security number and address to the police, the defendant followed the commands of the arresting sergeant and never resisted or became uncooperative. State v. Williams , Conn. Appellate Court Record & Briefs, May-June Term, 2008, Defendant's Brief pp.13-15. In other words, the defendant in State v. Williams , supra, 110 Conn. App. at 778, 956 A.2d 1176, did not challenge his conviction under § 53a-167a on the basis that it was premised on verbal conduct. The issue addressed in State v. Williams , supra, 205 Conn. at 456, 534 A.2d 230, and subsequently endorsed in State v. Sabato , supra, 321 Conn. at 729, 138 A.3d 895, was not before this court and not part of the opinion in State v. Williams , supra, 110 Conn. App. at 778, 956 A.2d 1176. We conclude, therefore, that our decision in State v. Williams , supra, 110 Conn. App. at 778, 956 A.2d 1176, is inapplicable to the present case. The sole basis for the defendant's conviction for violating § 53a-167a was the text messages sent to Rajewski. These words, which cannot be construed as fighting words, were not proscribed by that statute. As a result, we conclude that there was insufficient evidence to sustain her conviction for interfering with a police officer. II The defendant next claims that the evidence was insufficient to support her conviction of tampering with a witness. Specifically, she argues that the state failed to prove that she sent the text messages to Rajewski with the specific intent required for a conviction of § 53a-151(a), that is, the intent to influence a witness at an official proceeding. See State v. Ortiz , 312 Conn. 551, 554, 93 A.3d 1128 (2014). We are not persuaded. Section 53a-151(a) provides: "A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding." See also State v. Bennett-Gibson , 84 Conn. App. 48, 52-53, 851 A.2d 1214, cert. denied, 271 Conn. 916, 859 A.2d 570 (2004). Its purpose is to punish those who interfere with our system of justice. State v. Pommer , 110 Conn. App. 608, 617, 955 A.2d 637, cert. denied, 289 Conn. 951, 961 A.2d 418 (2008). Our Supreme Court has stated that this statutory language "plainly warns potential perpetrators that the statute applies to any conduct that is intended to prompt a witness to testify falsely or to refrain from testifying in an official proceeding that the perpetrator believes to be pending or imminent." State v. Cavallo , 200 Conn. 664, 668, 513 A.2d 646 (1986). It further explained that § 53a-151(a)"applies only to conduct intentionally undertaken to undermine the veracity of the testimony given by a witness." Id., at 672, 513 A.2d 646 ; see also State v. Coleman , 83 Conn. App. 672, 678-79, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004), cert. denied, 544 U.S. 1050, 125 S.Ct. 2290, 161 L.Ed.2d 1091 (2005). We are mindful that "[i]ntent may be, and usually is, inferred from the defendant's verbal or physical conduct.... Intent may also be inferred from the surrounding circumstances.... The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused's state of mind is rarely available.... Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct." (Emphasis omitted; internal quotation marks omitted.) State v. Bennett-Gibson , supra, 84 Conn. App. at 53, 851 A.2d 1214. Before addressing the specific arguments in this case, it is helpful to review our Supreme Court's decision in State v. Ortiz , supra, 312 Conn. at 551, 93 A.3d 1128, which both parties have discussed in their respective briefs. In that case, the defendant admitted to Louis Labbadia that he had committed a burglary in the town of Haddam. Id., at 554-55, 93 A.3d 1128. That same day, Labbadia provided this information to the police. Id., at 555, 93 A.3d 1128. Approximately fifteen months later, the defendant went to the home of Robin Bonita, Labbadia's fiancée. Id. Bonita, who lived in Middletown, informed the defendant that Labbadia had gone to the police. Id. Shortly thereafter, Labbadia went missing, and his remains subsequently were discovered approximately eight months later in Middletown. Id. The police considered the defendant as a suspect in the death of Labbadia, and went to speak with the defendant's girlfriend, Kristen Quinn. Id., at 554-55, 93 A.3d 1128. At this time, Quinn did not provide the police with any useful information for the investigation. Id., at 555, 93 A.3d 1128. She did, however, inform the defendant that she had been in contact with the police, and did not want to be involved with him because she suspected his involvement in Labbadia's death. Id. One week later, the defendant, intoxicated and suicidal, told Middletown police officers that he "was tired of being accused of . something that he [did not] do." (Internal quotation marks omitted.) Id., at 555, 93 A.3d 1128. Thereafter, the defendant went to Quinn's home and confessed to killing Labbadia with a hunting knife following his conversation with Bonita. Id., at 557, 93 A.3d 1128. Quinn then provided this information to the police. Id. Approximately seven weeks later, the defendant returned to Quinn's home, this time in possession of a small handgun. Id."The defendant told Quinn that he had the gun for 'insurance' if she told 'the cops about what he said about [Labbadia].' The defendant said that if Quinn spoke to the police '[her] house was going to go up in smoke .' The defendant stated that he knew where Quinn's grandparents lived. The defendant told Quinn that he was going to 'put [her down] on [her] knees, put the gun to [her] head and scare [her] straight.' " Id. The defendant in Ortiz subsequently was found guilty, inter alia, of tampering with a witness. Id., at 558, 93 A.3d 1128. We affirmed his conviction, and our Supreme Court granted his petition for certification. Id. It interpreted § 53a-151(a) and concluded that "a jury may consider a defendant's attempt to induce a potential witness to lie to police investigators as evidence of his intent to affect that witness' conduct at a future official proceeding." Id., at 563, 93 A.3d 1128. It stated expressly that " § 53a-151(a) applies whenever the defendant believes that an official proceeding will probably occur, even if the police are only at the investigation stage." (Emphasis in the original.) Id., at 568-69, 93 A.3d 1128. It also explained that the statutory phrase "about to be instituted" signified probability and not temporal proximity. Id., at 569, 93 A.3d 1128. It also provided the following example: "[W]hen an individual knows that there is significant evidence connecting him to the crime, or, even further, when the individual knows that a witness with relevant information already has spoken with the police, a jury reasonably could infer that the individual believed that the investigation probably would progress into an official proceeding." Id., at 570-71, 93 A.3d 1128. Next, the court in Ortiz considered the defendant's sufficiency claim. Id., at 572-74, 93 A.3d 1128. It noted that the defendant had confessed to two people that he had killed someone, one of those individuals had been in contact with the police, and the defendant himself, after exhibiting suicidal behavior, spoke with police officers, including the investigator working on the Labbadia homicide. Id., at 572, 93 A.3d 1128. As a result, the jury had sufficient evidence to find that an official proceeding would be instituted. Id., at 572-73, 93 A.3d 1128. Additionally, based on defendant's threats to Quinn, the jury was free to find that he had intended to induce her to testify falsely or withhold testimony at an official proceeding. Id., at 573-74, 93 A.3d 1128. Accordingly, our Supreme Court concluded that the jury reasonably could have concluded that the evidence established the defendant's guilt as to the charge of tampering with a witness beyond a reasonable doubt. Id. In the present case, the defendant challenges only the requirement that the state prove that she sent text messages to Rajewski with the intent to induce him to testify falsely. Specifically, she contends that it was too speculative for the jury to infer that she possessed the required intent to induce Rajewski to lie or withhold testimony at a future official proceeding at the time she texted him. She also argues that it would have been speculation for the jury to find that Rajewski would in fact testify when a future official proceeding could be resolved via a nolle prosequi, diversionary program or guilty plea. In other words, it simply was not probable that a "criminal court proceeding" would occur in which Rajewski would testify. Finally, she maintains that, at most, the jury could infer that she had attempted to prevent his arrest. The defendant's argument suffers from two flaws. First, she incorrectly assumes that the future official proceeding was limited to Rajewski's criminal trial. She offers no support for this interpretation of § 53a-151(a). In State v. Pommer , supra, 110 Conn. App. at 614, 955 A.2d 637, we stated: "An official proceeding includes any proceeding held or that may be held before any judicial official authorized to take evidence under oath. " (Emphasis added.) Thus, the official proceeding was not limited to a prosecution of Rajewski, but included a prosecution of Babcock, Moulson, or the defendant. Accordingly, we disagree with the defendant's interpretation of the "official proceeding" language contained in § 53a-151(a). Second, and more importantly, we disagree that the evidence in the present case was insufficient to support a finding that "an official proceeding was pending, or about to be instituted ." Our precedent contradicts the defendant's argument. In State v. Foreshaw , 214 Conn. 540, 541, 572 A.2d 1006 (1990), the defendant was charged with murder, carrying a pistol without a permit and tampering with physical evidence. In that case, the defendant exchanged words with a third party near a convenience store. Id., at 542, 572 A.2d 1006. The victim admonished the defendant for her "vile language." Id. After disappearing briefly behind a nearby building, the defendant returned, shot and killed the victim. Id., at 543, 572 A.2d 1006. The defendant immediately fled in her vehicle, throwing the gun out of the window prior to her apprehension. Id. The state charged the defendant, inter alia, with a violation of General Statutes (Rev. to 1989) § 53a-155 (a), which provides in relevant part: "A person is guilty of tampering with . physical evidence if, believing that an official proceeding is pending, or about to be instituted , he: (1) Alters, destroys, conceals or removes any record, document or thing with purpose to impair its verity or availability in such proceeding." (Emphasis in original.) State v. Foreshaw , supra, 214 Conn. at 547, 572 A.2d 1006. On appeal in Foreshaw , the defendant claimed that the state had failed to present sufficient evidence to support her conviction. Id., at 549-51, 572 A.2d 1006. "In particular, the defendant argues that because she discarded the gun prior to any contact with law enforcement officers or the judicial system, she could not have believed an official proceeding was 'about to be instituted.' " Id., at 550, 572 A.2d 1006. Our Supreme Court disagreed, stating: "It is true that at the time the defendant discarded the gun, no official proceeding had in fact been instituted. The statute, however, speaks to that which is readily apt to come into existence or be contemplated and thus plainly apples to the official proceeding arising out such incident. The crucial role police involvement would play in that process cannot be disputed." Id., at 551, 572 A.2d 1006. In the present case, the jury reasonably could have found that the defendant tampered with Rajewski by sending him text messages shortly after his altercation with Moulson. The timing of this tampering is similar to the facts of State v. Foreshaw , supra, 214 Conn. at 543, 572 A.2d 1006, where the defendant tampered with the evidence by throwing the gun out of the car window while fleeing from the crime scene. Additionally, the text messages from the defendant encouraged Rajewski to lie to Baker. See State v. Ortiz , supra, 312 Conn. at 563, 93 A.3d 1128 ; id., at 571-72, 93 A.3d 1128 (jury may consider defendant's attempt to induce potential witness to lie to police investigators as intent to affect that witness' conduct at future official proceeding); see also, e.g., State v. Higgins , 74 Conn. App. 473, 484, 811 A.2d 765 (state may establish second prong of tampering statute by proving defendant urged another to testify falsely), cert. denied, 262 Conn. 950, 817 A.2d 110 (2003). The evidence established that the defendant was aware of Baker's investigation of the physical altercation involving Rajewski, Babcock and Moulson. The jury could also find that the defendant, knowing that Baker investigated the physical altercation that had occurred at Bunny Road and had learned the identity of the participants, including Rajewski, believed than an official proceeding probably would result therefrom. See State v. Ortiz , supra, at 572-73, 93 A.3d 1128 ; State v. Pommer , supra, 110 Conn. App. at 619-20, 955 A.2d 637. Furthermore, these cases do not support the defendant's argument that we must consider the possibility that a future official proceeding ultimately may be resolved by means of a nolle prosequi, diversionary program or a guilty plea, obviating the need for Rajewski's testimony. Instead, our focus remains on whether a future official proceeding, i.e. a criminal trial, is probable. For these reasons, we conclude that the defendant's insufficiency claim with respect to her conviction of tampering with a witness must fail. The judgment is reversed only with respect to the defendant's conviction of interfering with an officer and the case is remanded with direction to render a judgment of acquittal on that charge and to resentence the defendant on the conviction of tampering with a witness. The judgment is affirmed in all other respects. In this opinion the other judges concurred. We note that this case is replete with conflicting testimony regarding the timing and nature of the relationships between the various parties, as well as the events of the night of July 24, 2015, and the early morning of July 25, 2015. It was for the jury, and not this court, to resolve discrepancies in the testimony. We emphasize that "we must defer to the finder of fact's evaluation of the credibility of the witnesses that is based on its invaluable firsthand observation of their conduct, demeanor and attitude.... [The fact finder] is free to juxtapose conflicting versions of events and determine which is more credible.... It is the [fact finder's] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses.... The [fact finder] can . decide what-all, none or some-of a witness' testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) State v. Colon , 117 Conn. App. 150, 154, 978 A.2d 99 (2009). In July, 2015, the defendant and Moulson lived together, but no longer were involved romantically. To the extent that the defendant claims the evidence was insufficient to sustain her conviction of § 53a-167 (a) because she sent the text message to a third party, Rajewski, and not the state trooper, Baker, we conclude that she abandoned such a contention as a result of an inadequate brief. "We are not required to review issues that have been improperly presented to this court through an inadequate brief.... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) State v. Fowler , 178 Conn. App. 332, 345, 175 A.3d 76 (2017), cert. denied, 327 Conn. 999, 176 A.3d 556 (2018). Other than a passing reference to the fact that her communication was directed at Rajewski, the defendant failed to provide any argument or analysis. Accordingly, we decline to consider this argument. See State v. Navarro , 172 Conn. App. 496, 500-501 n.1, 160 A.3d 444, cert. denied, 326 Conn. 910, 164 A.3d 681 (2017). Neither Rajewski's cell phone nor the police report was admitted into evidence. Instead, the prosecutor used the police report to refresh Baker's recollection as to the text message conversation between the defendant and Rajewski. Ultimately, our Supreme Court declined to reach these issues. State v. Sabato , supra, 321 Conn. at 734 n.7, 138 A.3d 895. In State v. Aloi , supra, 280 Conn. at 833-35, 911 A.2d 1086, our Supreme Court concluded that the refusal to comply with a police command to provide identification during a Terry stop was not categorically excluded from the broad language of § 53a-167a. Such a refusal, though done peacefully, was likely to impede or delay the police investigation. Id., at 834, 911 A.2d 1086. It also noted that it would have been impractical, if not impossible, to draft a statute that detailed with precision "exactly what obstructive conduct is proscribed." (Emphasis added.) Id., at 837, 911 A.2d 1086. Finally, it determined, under the facts and circumstances of that case, that the evidence was sufficient to support the defendant's conviction for violating § 53a-167a. Id., at 841-44, 911 A.2d 1086 ; see also State v. Silva , 285 Conn. 447, 456-61, 939 A.2d 581 (2008) (evidence sufficient to support conviction for violating § 53a-167a where defendant, about to receive infraction ticket, refused to provide police with driver's license, registration and insurance information and for fleeing the scene to avoid infraction ticket). Contrary to the present case, which involved verbal communications to Rajewski, the defendants in Aloi and Silva engaged in obstructive conduct by refusing to provide information sought by the police. We note that the court instructed the jury that the tampering of a witness count applied either to Rajewski or Babcock. The defendant did not object to the court's charge. On appeal, the defendant claims that her right to due process was violated because the state's information did not charge her with tampering with Babcock. She further claims that the evidence was insufficient to sustain her conviction for violating § 53a-151(a) with respect to Babcock. In its brief, the state expressly conceded that it had not pursued a charge of tampering with a witness as to Babcock. With respect to the defendant's due process claim, the state argued that it failed under the third prong of State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015). Specifically, the state claims that it "never proceeded on any theory of the case alleging that the defendant had tampered with Babcock, and presented no evidence from which the jury could have found the defendant guilty under that theory of culpability. Consequently, the defendant's due process claim lacks a factual predicate, and must fail." We agree that, despite the court's instructions, the state presented its case of tampering with a witness solely as to Rajewski, and that the defendant cannot demonstrate a violation of her right to due process under these facts and circumstances. "The term witness is broadly defined as any person summoned, or who may be summoned , to give testimony in an official proceeding . General Statutes § 53a-146(6). The statutory scheme also includes a broad definition of official proceeding, that is, any proceeding held or which may be held before any legislative, judicial, administrative, or other agency or official authorized to take evidence under oath, including any referee, hearing examiner, commissioner, or notary or other person taking evidence in connection with any proceeding.... General Statutes § 53a-146(1)." (Emphasis in original; internal quotation marks omitted.) State v. Ortiz , supra, 312 Conn. at 562 n.6, 93 A.3d 1128. In State v. Pommer , supra, 110 Conn. App. at 617, 955 A.2d 637, we adopted and applied our Supreme Court's construction of the "official proceeding is pending, or about to be instituted" language in § 53a-155 (a) from State v. Foreshaw , supra, 214 Conn. at 540, 572 A.2d 1006, to the identical language in § 53a-151(a). On remand, the court must resentence the defendant as to this conviction. See State v. Wade , 297 Conn. 262, 268, 998 A.2d 1114 (2010) ; State v. Crenshaw , 172 Conn. App. 526, 530, 161 A.3d 638, cert. denied, 326 Conn. 911, 165 A.3d 1252 (2017).

12497639

Kathleen KUCHTA v. Eileen R. ARISIAN

Kuchta v. Arisian

2018-07-24

SC 19730

408

422

187 A.3d 408

187

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:32.687249+00:00

Fastcase

Kathleen KUCHTA v. Eileen R. ARISIAN

Kathleen KUCHTA v. Eileen R. ARISIAN SC 19730 Supreme Court of Connecticut. Argued November 7, 2017 Officially released July 24, 2018 Scott T. Garosshen, with whom was Karen L. Dowd, Hartford, for the appellant (plaintiff). Eileen R. Becker, for the appellee (defendant). Palmer, McDonald, Robinson, D'Auria, Mullins and Kahn, Js. The listing of justices reflects their seniority status on this court as of the date of oral argument.

7371

47281

McDONALD, J. "The outdoor sign or symbol is a venerable medium for expressing political, social and commercial ideas." (Internal quotation marks omitted.) Metromedia, Inc. v. San Diego , 453 U.S. 490, 501, 101 S.Ct. 2882, 69 L.Ed. 2d 800 (1981). The primary issue we must resolve in this case is whether General Statutes § 8-2, which authorizes a municipality's zoning commission to regulate the height, size, and location of "advertising signs and billboards," permits a municipality to regulate signs erected on residential property that disparage a commercial vendor. The plaintiff, the zoning enforcement officer for the city of Milford, appeals from the judgment of the trial court denying the plaintiff's request for permanent injunctions ordering the defendant homeowner, Eileen R. Arisian, to remove signs on her property that were not in compliance with city zoning regulations and precluding the defendant from occupying the property until she obtained certain certificates required after home improvements had been made to her residence. We conclude that the defendant's signs are not "advertising signs," and, accordingly, the trial court properly concluded that municipal regulation of such signs is outside the scope of the authority granted under § 8-2. We further conclude that the trial court properly exercised its discretion when it declined to issue an injunction precluding the defendant from occupying the subject premises. I We first address the plaintiff's challenge to the trial court's conclusion that the city's zoning commission lacked authority to regulate the defendant's signs as "advertising signs" under § 8-2. The following undisputed facts and procedural history are relevant to this issue. The defendant contracted with Baybrook Remodelers, Inc., for certain home improvements. Evidently dissatisfied with Baybrook's performance, the defendant erected three signs on her property. One sign stated: "I Do Not Recommend BAYBROOK REMODELERS." Two signs contained the caption: "BAYBROOK REMODELERS' TOTAL LAWSUITS," with bar graphs underneath the caption reflecting the number of lawsuits to which the contractor purportedly was a party. Thereafter, the plaintiff issued an order notifying the defendant that her signs violated city zoning regulations limiting the size, height, and number of signs per street line and ordering her to remove them. See Milford Zoning Regs., art. V, § 5.3.3.3 (2) and 5.3.4.1. When the defendant still had not complied months later, the plaintiff commenced the present action, which sought to enjoin the defendant from maintaining the signs that did not comply with the zoning regulations. The defendant asserted a special defense that the city lacked authority to regulate her signs under § 8-2. The trial court denied the request for the injunction. The court found that the defendant's signs violated the restrictions on the size, height, and number of signs in the city's zoning regulations. The court nonetheless concluded that the city lacked authority to regulate the signs under § 8-2. It reasoned that the defendant's signs were not "advertising signs" as previously defined by this court because they did not promote the sale of goods or services. This appeal followed. On appeal, the plaintiff asserts that an "advertising" sign, as that term is used in § 8-2 and as that term is commonly defined, means any sign that makes a public announcement. According to the plaintiff, this broad definition is proper because it more fully aligns with the stated purposes of the zoning enabling statute than the narrower one adopted by the trial court. The plaintiff further asserts that this broader definition is proper because a narrower definition may constitute content based regulation in violation of the first amendment to the United States constitution. We disagree. The meaning of the term "advertising signs" is a matter of statutory construction, to which well settled principles and plenary review apply. Middlebury v. Connecticut Siting Council , 326 Conn. 40, 48, 161 A.3d 537 (2017). "In seeking to determine that meaning, General Statutes § 1-2z directs us to first consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of a statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ." (Internal quotation marks omitted.) Gilmore v. Pawn King, Inc. , 313 Conn. 535, 542-43, 98 A.3d 808 (2014). In addition to these general principles, we must be mindful when construing § 8-2 that the grant of municipal authority to enact zoning regulations is in derogation of the common law. See City Council v. Hall , 180 Conn. 243, 248, 429 A.2d 481 (1980) ("as a creation of the state, a municipality has no inherent power of its own... [and] the only powers a municipal corporation has are those which are expressly granted to it by the state" [citations omitted] ); see also Schwartz v. Planning & Zoning Commission , 208 Conn. 146, 153, 543 A.2d 1339 (1988) (zoning regulations and ordinances are in derogation of common law). As such, this grant of authority "should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction." (Internal quotation marks omitted.) Ugrin v. Cheshire , 307 Conn. 364, 380, 54 A.3d 532 (2012). We begin our analysis with the observation that there is no definition of "advertising signs" or "advertise" anywhere in the General Statutes that provides guidance in the present case. But see General Statutes § 20-206g (a) (defining " 'advertise' " for purposes of provision limiting advertisements by massage therapists by reference to inclusion of certain terms). However, as the trial court's decision in the present case reflects, this court has previously considered the meaning of this term. In Schwartz v. Planning & Zoning Commission , supra, 208 Conn. at 153-54, 543 A.2d 1339, the defendant commission was attempting to apply its zoning regulations to preclude the display of an artistic, cylindrical metal sculpture erected in front of a shopping plaza. We concluded that the sculpture was not a "sign" as defined under the town of Hamden's zoning regulations, because, although it would attract the attention of passersby, it did not attract attention to a " 'use, product, service, or activity' " as provided under the regulation's definition. Id., at 154, 543 A.2d 1339. We also noted, however, that the defendant commission's expansive interpretation was not consistent with the authority granted to it under § 8-2 to regulate "advertising signs and billboards." Id., at 154-55, 543 A.2d 1339. The court first referenced dictionary definitions of "advertise" that it deemed most relevant: "to announce publicly esp[ecially] by a printed notice or a broadcast; [and] to call public attention to esp[ecially] by emphasizing desirable qualities so as to arouse a desire to buy or patronize ." (Emphasis added; internal quotation marks omitted.) Id., at 155, 543 A.2d 1339. The court then noted the lack of evidence to establish that the presence of the sculpture would "arouse the desire of passersby to patronize the merchants and services available there." Id. Putting aside the question of whether this discussion of § 8-2 is dictum, as the plaintiff contends, we are not persuaded that the definition applied in Schwartz is dispositive of the issue in the present case because the court failed to engage in a comprehensive statutory analysis and overlooked governing rules of construction. Accordingly, we now undertake the requisite analysis. See State v. Patel , 327 Conn. 932, 939, 171 A.3d 1037 (2017) (The court acknowledged prior case law addressing the matter before the court but concluded: "[W]e have never undertaken the necessary textual and historical examination to reach an informed conclusion.... Therefore, we now undertake such an examination, informed by settled factors that guide this process." [Citations omitted; footnote omitted.] ). In the absence of a statutory definition of "advertising signs," our starting point must be the common meaning of the term, as reflected in the dictionary. See General Statutes § 1-1 (a) ("[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language"); Maturo v. State Employees Retirement Commission , 326 Conn. 160, 176, 162 A.3d 706 (2017) (relying on dictionary definitions). However, the definition applied in Schwartz, as well as those relied on by both parties to the present case, suffers from two flaws. First, those definitions are not contemporaneous with the time when the grant of authority to regulate "advertising signs and billboards" was added to the zoning enabling statute. See Maturo v. State Employees Retirement Commission , supra, at 176, 162 A.3d 706 ("[w]hen a term is not defined in a statute, we begin with the assumption that the legislature intended the word to carry its ordinary meaning, as evidenced in dictionaries in print at the time the statute was enacted"); see also Sandifer v. U.S. Steel Corp. , 571 U.S. 220, 134 S.Ct. 870, 876, 187 L.Ed. 2d 729 (2014) ("[i]t is a fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary , common meaning" [emphasis added; internal quotation marks omitted] ); see, e.g., id. (looking to dictionary definition at time of statute's enactment). Second, the parties rely exclusively on definitions of the verb "advertise," not the adjective "advertising," which is the operative form of the word used in the statute and which could have a different meaning. The grant of municipal zoning authority to regulate "advertising signs and billboards" was added to the zoning enabling statute in 1931. Public Acts 1931, c. 29, § 42a; General Statutes (Cum. Supp. 1931) § 88c. Contemporaneous dictionaries provide a relevant definition of "advertise" that is consistent with the broad meaning advocated by the plaintiff. See Webster's New International Dictionary (2d Ed. 1934) p. 39 ("[t]o give notice to; to inform; to notify; to make known to; hence, to warn;-often with of before the subject of information; as, to advertise a man of his loss" and "[t]o give public notice of; to announce publicly, esp[ecially] by a printed notice; as, to advertise a sale; hence, to call public attention to, esp[ecially] by emphasizing desirable qualities, in order to arouse a desire to purchase, invest, patronize, or the like" [emphasis in original] ); Funk & Wagnalls New Standard Dictionary of the English Language (1928) p. 42 ("[t]o give public notice or information, as of some thing desired, an entertainment, a place of business, etc.; publish; as, to advertise for a servant; to advertise extensively" [emphasis in original] ). These definitions indicate that commercial advertising is perhaps the most common form of such expression, but not the only form under this broad meaning. The definition of "advertising," however, reflects a more specific meaning aimed at the purpose of this form of expression. Webster's New International Dictionary, supra, p. 39, defines "advertising" as "[a]ny form of public announcement intended to aid directly or indirectly in the sale of a commodity, etc., in the promulgation of a doctrine or idea, in securing attendance, as at a meeting, or the like." See also Funk & Wagnalls New Standard Dictionary of the English Language (1946) p. 42 (defining "advertising" as "[t]he act of making known by public notice; by extension, the art of announcing or offering for sale in such a manner as to induce purchase"). These dictionaries reflect that, around 1931, "advertising" referred to the promotion of many subjects, of which commercial goods and services were perhaps the most common. Because the announcement is "intended to aid" the proponent, the definition implies that some benefit inures to the proponent through such promotion. See, e.g., People v. Hopkins , 147 Misc. 12, 13-15, 263 N.Y.S. 290 (Spec. Sess. App. Pt. 1933) (The court concluded that a municipal ordinance prohibiting "advertising" trucks in the streets had been violated by a truck bearing messages offering a reward for the arrest of persons who had bombed a labor union's headquarters, and the following statements: "Please do not patronize Patio Albermarle Farragut Rialto. They employ a scab group." "We stand for decency in unionism ."). When the meaning of "advertising" is linked with the meaning of "sign," there is further evidence that the broadest meaning of "advertise"-any public announcement-was not intended when this zoning authority was granted in 1931. The relevant contemporaneous definition of "sign" was "[a] lettered board, or other conspicuous notice, placed on or before a building, room, shop, or office to advertise the business there transacted, or the name of the person or firm conducting it; a publicly displayed token or notice." Webster's New International Dictionary, supra, p. 2334. As such, the definition distinguishes a sign as a means to advertise from a means to simply convey information to the public. By interpreting "advertising" consistently with its contemporaneous definition, we afford independent meaning to that term as well as to "sign." By contrast, the plaintiff's interpretation of advertising sign to mean any sign that makes a public announcement largely renders the term "advertising" superfluous. It is a cardinal rule of construction that no word or phrase of a statute should be rendered superfluous. See, e.g., Marchesi v. Board of Selectmen , 309 Conn. 608, 615, 72 A.3d 394 (2013) ; Lopa v. Brinker International, Inc. , 296 Conn. 426, 433, 994 A.2d 1265 (2010). Had the legislature intended to cast such a broad net, presumably it would have simply granted a municipality the authority to regulate "signs," as it has in other provisions of the General Statutes. See, e.g., General Statutes § 7-148 (c) (7) (vi) (granting municipality power to "[r]egulate and prohibit the placing, erecting or keeping of signs . upon or over the sidewalks, streets and other public places of the municipality"). We also observe that the contemporaneous, narrower meaning of advertising better comports with related statutes and the history of the grant of regulatory authority. "Advertising signs" are the subject of several other statutes, some adopted prior to the amendment to the zoning statute in 1931, and some afterward. Prior to 1931, the legislature enacted a licensing (permit and fee) requirement for advertising signs, which was codified in a chapter of the General Statutes entitled "ADVERTISING SIGNS." Public Acts 1915, c. 314; General Statutes (1918 Rev.) tit. 25, c. 168. That scheme is currently codified at chapter 411 and is identically entitled. See General Statutes § 21-50 through 21-63. According to historical evidence, this requirement was aimed at controlling the proliferation of commercial advertising. See J. Loshin, "Property in the Horizon: The Theory and Practice of Sign and Billboard Regulation," 30 Environs: Envtl. L. & Policy J. 101, 125-26 (2006) (case study of New Haven's treatment of signs and billboards); see also General Statutes (Cum. Supp. 1931) § 89c and 90c (prescribing conditions for erecting advertising signs and treating such signs as type of commercial or business structure). However, exemptions to the licensing requirement reveal that the signs subject to the licensing requirements extended beyond purely commercial advertising to signs promoting other types of enterprises. See General Statutes § 21-55 (providing exemption for "advertising sign containing six square feet or less, from any town, city, borough, fire district or incorporated fire company, service club or church or ecclesiastical society in this state for any advertisement owned by it and advertising its industries or attractions and maintained at either public or private expense"); see also General Statutes (1918 Rev.) § 3024 (excluding signs less than four square feet); General Statutes (1918 Rev.) § 3029 (providing exception for "any town, city or borough for any advertisement owned by it and advertising its industries and maintained at either public or private expense"). Consistent with the contemporaneous meaning of "advertising," this exemption implies that advertising promotes something for the benefit of the proponent. This meaning is also consistent with the interpretation given to a statute regulating advertising signs that was subsequently enacted. The legislature enacted a statute limiting placement of advertising signs and structures within a certain distance of highways. See General Statutes § 13a-123. This statute was originally enacted in 1959 and subsequently was amended in 1967 to ensure compliance with the federal Highway Beautification Act of 1965. See Public Acts 1959, No. 526, § 1-7, 9-11; Public Acts 1967, No. 632, § 1. Notably, the statute exempts signs bearing certain subject matter; all of the specific examples cited conform to the promotional, beneficial definition of advertising previously cited, i.e., signs "pertaining to natural wonders and scenic and historical attractions," "advertising the sale or lease of the property," or advertising "activities conducted on the property on which they are located ." General Statutes § 13a-123 (e) (1), (2) and (3). In Burns v. Barrett , 212 Conn. 176, 189, 561 A.2d 1378, cert. denied, 493 U.S. 1003, 110 S.Ct. 563, 107 L.Ed. 2d 558 (1989), this court considered the application of a regulation promulgated under § 13a-123, which elaborated on the exemption for signs advertising activities conducted on the premises where the sign is located. In rejecting a claim that the regulation applied to commercial speech only, the court addressed noncommercial advertising in a manner consistent with the promotional, beneficial definition set forth in the 1934 Webster's New International Dictionary: "We construe the regulation . to include . those [signs] relating to noncommercial as well as commercial activities located on the premises, such as those of a hospital, church, club, political organization or other noncommercial institution. For example, if some organization of veterans were located on the premises where the defendant has placed his sign concerning Vietnam veterans, the requisite relationship between the sign and activities conducted on the premises would exist. Such a noncommercial message could . be sponsored by a business conducted on the site of the sign for the purpose of advertising the business, since many advertisements contain statements of public interest not directly related to the wares sold by the sponsor but intended to attract attention or create good will for its benefit." Id. Finally, we are mindful that, at the time the legislature added authority to regulate advertising signs and billboards and to this day, the zoning scheme sets forth broad purposes for zoning regulations. It provides in relevant part that such regulations "shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements...." General Statutes § 8-2 (a) ; accord General Statutes (1930 Rev.) § 424. These purposes reflect safety and aesthetic concerns. The aforementioned interpretation of advertising undoubtedly advances these purposes. The mere fact that a broader interpretation of advertising might more fully accomplish these purposes does not permit us to ignore the meaning of the term compelled under the applicable rules of construction. We are obliged to construe the grant of authority narrowly, as it is in derogation of common-law property rights. See Ugrin v. Cheshire , supra, 307 Conn. at 380, 54 A.3d 532 ; see also Schwartz v. Planning & Zoning Commission , supra, 208 Conn. at 153, 543 A.2d 1339 (zoning regulations and ordinances are in derogation of common law); City Council v. Hall , supra, 180 Conn. at 248, 429 A.2d 481 (municipality limited to power granted by state). Such a narrow construction does not create an absurd result, as claimed by the plaintiff. The legislature rationally could choose to target the predominant source of the concern. See Burns v. Barrett , supra, 212 Conn. at 184-85, 561 A.2d 1378 (exception to prohibition on advertising signs within certain proximity of off-ramp to highway on basis of population density did not refute conclusion that regulation enhanced highway safety); see also Metromedia, Inc. v. San Diego , supra, 453 U.S. at 511-12, 101 S.Ct. 2882 (exclusion of on premises advertising from regulation does not undermine state's safety and aesthetic objectives; state could believe off premises advertising is more acute problem or on premises advertising is of greater value to public). We agree with the plaintiff that any individual sign-regardless of the nature of the message it conveys-potentially could be a distraction to drivers and could raise safety concerns if it is too big, too tall, or placed in certain locations. Cf. Burns v. Barrett , supra, 212 Conn. at 187, 561 A.2d 1378 ("[B]illboard advertisements, both commercial and noncommercial, are distracting to motorists and threaten public safety in areas where vehicles travel at very high speeds. Indeed, noncommercial messages may be more distracting because they are usually more interesting."); see generally, e.g., Kroll v. Steere , 60 Conn. App. 376, 379, 759 A.2d 541 (considering regulation of twenty square foot piece of plywood with painting portraying two deer and captioned "Who Asked the Deer?"), cert. denied, 255 Conn. 909, 763 A.2d 1035 (2000). However, the plaintiff's construction would allow for the regulation of signs that plainly were not of the sort envisioned when the legislature added this grant of authority in 1931. Undoubtedly, since the 1930s, signs reflecting purely personal expressions have gained popularity. It is not uncommon to pass a residence bearing a sign announcing a celebratory event (e.g., the birth of a child-"It's a Boy," the return of a loved one-"Welcome Home, Soldier"), a warning ("Drive Slowly-Children at Play"), or an expression of personal opinion. Although such signs may make a public announcement, we are hard pressed to characterize such expressions as advertising. To the extent that such signs may give rise to similar aesthetic and safety concerns as advertising signs, it is not up to this court to give the statute a broader meaning than the contemporaneous, common meaning intended by the enacting legislature. Cf. Harris v. United States , 536 U.S. 545, 556, 122 S.Ct. 2406, 153 L.Ed. 2d 524 (2002) (recognizing that court examines legislative intent in view of contemporaneous law, not subsequent developments in law that legislature could not have contemplated), overruled on other grounds by Alleyne v. United States , 570 U.S. 99, 103, 133 S.Ct. 2151, 186 L.Ed. 2d 314 (2013). Subsequent legislatures could have adopted a definition to expand the scope of the statute to address modern developments and practices. They failed to do so, leaving us to apply settled rules of construction. Under those rules of construction, we are bound to apply the narrower definition, consistent with the contemporaneous definition. The plaintiff nonetheless asserts that the principle of legislative acquiescence supports the broad definition of public pronouncement. The plaintiff contends that the legislature should be presumed to know that many municipalities have promulgated zoning regulations that are broader than the narrow definition of "advertising signs" adopted by the trial court, and thus its failure to amend the statute evidences legislative support for these broader interpretations. The plaintiff cites no authority, however, and we are aware of none, that extends the principle of legislative acquiescence to presume the legislature's awareness of municipal legislation that has not been subjected to judicial scrutiny and that may vary in form among municipalities. Moreover, in light of our prior construction of § 8-2 in Schwartz , there would be no reason for the legislature to presume that any contrary municipal construction would withstand such scrutiny. As a fallback position, the plaintiff asserts that we should adopt the broader public announcement definition because limiting "advertising signs" to those that promote goods, services, or activities might constitute improper content based speech discrimination in violation of the first amendment to the United States constitution. See Reed v. Gilbert , - U.S. -, 135 S.Ct. 2218, 2231, 192 L.Ed. 2d 236 (2015) (restrictions on temporary signs on basis of classification of content are violation of first amendment). Admittedly, "[i]t is well established that this court has a duty to construe statutes, whenever possible, to avoid constitutional infirmities ." (Internal quotation marks omitted.) James v. Commissioner of Correction , 327 Conn. 24, 42, 170 A.3d 662 (2017). However, "it is appropriate to place a judicial gloss on a statutory provision only if that gloss comports with the legislature's underlying intent.... When, as in the present case, however, such a gloss is not consistent with the intent of the legislature as expressed in the clear statutory language, we will not rewrite the statute so as to render it constitutional." (Citation omitted.) State v. DeCiccio , 315 Conn. 79, 150, 105 A.3d 165 (2014) ; accord Clark v. Martinez , 543 U.S. 371, 381-82, 125 S.Ct. 716, 160 L.Ed. 2d 734 (2005). Here, the evidence compels the conclusion that the legislature intended a narrower definition than the one advanced by the plaintiff. Moreover, the plaintiff's constitutional arguments rest on first amendment case law that developed decades after the statute was enacted. See, e.g., Metromedia, Inc. v. San Diego , supra, 453 U.S. at 505, 101 S.Ct. 2882 ("[p]rior to 1975, purely commercial advertisements of services or goods for sale were considered to be outside the protection of the [f]irst [a]mendment"). As the United States Supreme Court has noted, interpreting a statute to conform to subsequent developments in the law would improperly "embrace a dynamic view of statutory interpretation, under which the text might mean one thing when enacted and yet another if the prevailing view of the [c]onstitution later changed." Harris v. United States , supra, 536 U.S. at 556, 122 S.Ct. 2406. Insofar as the plaintiff's argument can be construed as a direct constitutional challenge to a narrow construction of the statute, the relief that would be afforded to a proper party to make this claim-a person whose speech was restricted by the zoning regulations -would be to strike down, limit, or refuse to apply the offending grant of authority, not to expand the reach of the statute to other forms of expression. See State v. Williams , 205 Conn. 456, 473, 534 A.2d 230 (1987) ("this court has the power to construe state statutes narrowly to comport with the constitutional right of free speech" and "[t]o avoid the risk of constitutional infirmity"); see also Metromedia, Inc. v. San Diego , supra, 453 U.S. at 503, 513, 521, 101 S.Ct. 2882 (striking down ordinance that permitted on premises commercial advertising but did not permit noncommercial messages). For the foregoing reasons, we conclude that the phrase "advertising signs" under § 8-2 means any form of public announcement intended to aid directly or indirectly in the sale of goods or services, in the promulgation of a doctrine or idea, in securing attendance, or the like. In light of that conclusion, it is apparent that the defendant's signs in the present case are not advertising signs. The defendant's message is not aimed at the sale of goods, the promulgation of a doctrine or idea, securing attendance, or the like. Nor is any activity or enterprise of the defendant benefited by any action of the recipient of the message. Rather, the defendant is expressing her personal, derogatory opinion of her home improvement contractor and citing prior lawsuits allegedly brought against the contractor to show that her unfavorable opinion is shared by others. Although she might obtain personal satisfaction if her sign deters other homeowners from hiring the named contractor, it is not the sort of benefit fostered by advertising as we have interpreted the term. Therefore, the trial court properly concluded that the city lacked authority to regulate the defendant's signs. II We next turn to the plaintiff's challenge to the trial court's decision denying the plaintiff's request for an injunction precluding the defendant from occupying her residence until she obtained a new certificate of occupancy following the modifications to her residence. The plaintiff contends that the court improperly focused on why the defendant did not have a certificate of occupancy rather than whether she had the certificate required by the zoning regulations. We conclude that the trial court did not abuse its discretion in denying this request. The record reflects the following additional undisputed facts and procedural history. City zoning regulations impose several obligations on a property owner having home renovations performed. The owner must submit an application and plot plan, reflecting the proposed changes to the property, to procure a zoning permit from the zoning enforcement officer. Milford Zoning Regs., art. VIII, § 8.5. Once renovations have been completed, the owner must submit an " 'as built' " certified plot plan, reflecting the actual work performed, to the zoning enforcement officer. Id., § 8.8. Only after doing so may the owner apply for a certificate of zoning compliance from the zoning enforcement officer and a certificate of occupancy from the building inspector. Id. A certificate of zoning compliance is a necessary prerequisite to a certificate of occupancy, and the zoning regulations prohibit occupation of a residence without a certificate of occupancy. Id., § 8.9. In the present case, after the plaintiff received complaints concerning the defendant's signs about her home improvement contractor, the plaintiff reviewed the file pertaining to the defendant's property. That review revealed that the defendant had obtained two building permits for renovations to her residence, but had not subsequently filed the submissions to obtain a new certificate of occupancy. The plaintiff sent a letter to the defendant notifying her that she had not "turn[ed] in as-builts for the two permits that have not been inspected and ha[d] not yet received [c]ertificates of [z]oning [c]ompliance or [c]ertificates of [o]ccupancy," and ordering her to do so. Several months later, the plaintiff sent a second letter to the defendant, ordering her to "obtain [c]ertificates of [z]oning [c]ompliance and [c]ertificates of [o]ccupancy within ten . days of the date of this order or vacate the premises." When the defendant still did not comply with the orders, the plaintiff brought the present action, seeking an injunction precluding the defendant from occupying the premises and ordering her to immediately obtain a certificate of zoning compliance and a certificate of occupancy. The plaintiff also sought civil penalties under General Statutes § 8-12 for the defendant's failure to comply with the order to remedy the stated violations. The complaint simply alleged that the defendant was occupying the premises without a certificate of zoning compliance or certificate of occupancy and had failed to comply with orders to comply with city regulations, and the two orders were attached as exhibits. Trial on the action did not take place until almost four years after the complaint was filed. The following events ensued during the intervening period. Three years after the plaintiff commenced the present action, the defendant provided an as built plot plan to the plaintiff. Both the initial plot plan and a subsequent one submitted by the defendant contained substantive errors. Nearly four years after the commencement of the action, the defendant submitted an adequate plot plan. The plaintiff reviewed the plot plan and determined that the renovations, as completed, violated city zoning regulations for maximum lot coverage. As a consequence, the plaintiff declined to issue a certificate of zoning compliance, and, in turn, the building inspector refused to issue a certificate of occupancy. The plaintiff did not amend the complaint to include an allegation regarding the zoning violation for lot coverage. The trial court found that the defendant had violated the zoning regulations because she did not have the requisite certificate of occupancy, but it nonetheless declined to grant the plaintiff's request for injunctive relief. The court found that the defendant could do nothing more to secure the certificate. The trial court credited the defendant's testimony that she had relied on her contractor to submit the necessary paperwork. Although extremely tardy, the defendant had submitted the required as built plot plan. The court further noted that, because the plaintiff had not followed the normal procedure for a zoning violation, the defendant had been deprived of administrative remedies related to the ground on which the plaintiff had refused to issue the certificate, namely, noncompliance with maximum lot coverage. Had the proper procedure been followed, the plaintiff would have provided notice to the defendant of that violation as well as a cease and desist order, which in turn would have entitled the defendant to review by the zoning board of appeals. Although the trial court concluded that injunctive relief should not issue, it ordered the defendant to pay a civil penalty of $1000 due to the fact that it had taken her more than four years to submit a proper as built plot plan. It is well settled that we review a decision of the trial court to deny injunctive relief for an abuse of discretion. Waterford v. Grabner , 155 Conn. 431, 434-35, 232 A.2d 481 (1967). "A decision to grant or deny an injunction must be compatible with the equities in the case, which should take into account the gravity and willfulness of the violation, as well as the potential harm to the defendant." Bauer v. Waste Management of Connecticut, Inc. , 239 Conn. 515, 527, 686 A.2d 481 (1996). "In seeking an injunction pursuant to [General Statutes] § 8-12, the town is relieved of the normal burden of proving irreparable harm and the lack of an adequate remedy at law because § 8-12 by implication assumes that no adequate alternative remedy exists and that the injury was irreparable.... The town need prove only that the statutes or ordinances were violated.... The proof of violations does not, however, deprive the court of discretion and does not obligate the court mechanically to grant the requested injunction for every violation ." (Citations omitted; emphasis added.) Gelinas v. West Hartford , 225 Conn. 575, 588, 626 A.2d 259 (1993). In the present case, the trial court found that, even though the fact that the defendant was in violation of the zoning regulations because she did not have a certificate of occupancy, the factual circumstances did not support the "extraordinary equitable remedy" of a permanent injunction prohibiting the defendant from occupying her premises. In light of the reasons stated by the trial court, we cannot conclude that it abused its discretion by denying the requested injunctive relief. The judgment is affirmed. In this opinion the other justices concurred. Although § 8-2 has been amended by the legislature several times since the events underlying the present case; see, e.g., Public Acts 2015, No. 15-227, § 25; those amendments have no bearing on the merits of this appeal. Kathleen Kutcha, the named plaintiff, was the Milford zoning enforcement officer when this case was commenced. While the case was pending before the trial court, Kutcha retired, and her successor, Stephen H. Harris, was substituted as the plaintiff. The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. Milford regulations place additional limitations on temporary signs that differ based on their content, including political signs, commercial advertising signs, and signs advertising cultural and civic events. See Milford Zoning Regs., art. V, § 5.3.3.4. These content based distinctions are not at issue in the present case. In addition to rebutting the plaintiff's argument directly, the defendant asserts that (1) even if the court were to adopt the plaintiff's broad definition of advertising signs, the city's regulations would exceed the city's authority because § 8-2 does not permit regulation of the number of signs and, (2) as an alternative ground for affirmance, application of the zoning regulations to the defendant would violate her first amendment rights. Because we conclude that § 8-2 does not authorize the city to regulate the defendant's signs, we do not reach these issues. We also observe that, in Schwartz , the court quoted two definitions, each of which conforms to one proposed by a party in the present case. See Schwartz v. Planning & Zoning Commission , supra, 208 Conn. at 155, 543 A.2d 1339. It appears that the court in Schwartz applied the narrower definition because its use of the phrase "arouse the desire"; id. ; more closely hewed to the use of the phrase "attracting attention" in the town's zoning regulation. Id., at 153, 543 A.2d 1339. Consistent with the discussion in Schwartz ; see footnote 6 of this opinion; modern dictionaries include a broad definition of "advertise," as well as a narrower one focused on the promotion of goods or services. See Merriam-Webster's Collegiate Dictionary (11th Ed. 2003) p. 59 ("to make something known to," "to make publicly and generally known," "to announce publicly esp[ecially] by a printed notice or a broadcast," and "to call public attention to esp[ecially] by emphasizing desirable qualities so as to arouse a desire to buy or patronize"); The Random House Dictionary of the English Language (2d Ed. 1987) p. 29 ("advertising" means "the act or practice of calling public attention to one's product, service, need, etc., esp[ecially] by paid announcements in newspapers and magazines, over radio or television, on billboards, etc."); The American Heritage Dictionary of the English Language (1978) p. 19 ("[t]o make public announcement of; especially, to proclaim the qualities or advantages of [a product or business] so as to increase sales"; "[t]o call the attention of the public to a product or business"). When this meaning is ascribed to "advertising signs," it results in a meaning consistent with its companion term-"billboards." Although billboards predominantly display commercial messages, they also have been used to promote noncommercial messages, including political and religious messages. Indeed, although not common around the time period when the zoning statute was amended to add this authority, there is evidence that billboards were used to promote noncommercial causes at that time. See E. Berry, "The Call of the Billboard," The Atlantic, July 7, 2016, available at http://www.theatlantic.com/technology/archive/2016/07/the-call-of-thebillboard/490316/ (last visited July 13, 2018) (discussing existence of an "advertising agency of religious work" in 1908, which encouraged churches to erect religious signs to "meet the people [half way] with the Gospel message" [internal quotation marks omitted] ). Modern definitions of "sign" reflect a similar distinction. See Webster's II New World College Dictionary (3d Ed. 2005) p. 1051 ("board, poster, or placard displayed in a public place to advertise, impart information, or give directions); Merriam-Webster's Collegiate Dictionary (11th Ed. 2003) pp. 1158-59 ("a display . used to identify or advertise a place of business or a product," "a posted command, warning, or direction," and "signboard"); Webster's Third New International Dictionary (2002) p. 2115 (a lettered board or other public display placed on or before a building . to advertise the business there transacted" and "a conspicuously placed word or legend [as on a board or placard] of warning . or other information of general concern"); see also Regs., Conn. State Agencies § 13a-123-2 (h) (defining " '[s]ign' " for purposes of Department of Transportation regulations as including "any outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard or other thing which is designed, intended or used to advertise or inform"). Insofar as the plaintiff contends that construing "advertising" to mean making the expression visible to the public would avoid rendering the term superfluous, we also observe that numerous dictionaries define "sign" in a manner to mean a public display. See footnote 9 of this opinion Contemporaneous case law from other jurisdictions is replete with evidence that the proliferation of commercial signs, especially billboards, raised significant aesthetic, as well as safety and health, concerns across the country, leading many jurisdictions to adopt similar legislation allowing for the regulation of advertising signs and billboards. See Murphy, Inc. v. Westport , 131 Conn. 292, 295-98, 40 A.2d 177 (1944) (comparing cases from other jurisdictions where regulation of advertising signs solely on basis of aesthetic concerns was deemed improper with those cases where regulations also based on public health or safety concerns were deemed proper); General Outdoor Advertising, Co. v. Dept. of Public Works , 289 Mass. 149, 171, 176, 182, 193 N.E. 799 (1935) (noting that, in addition to aesthetic concerns, advertising signs and billboards impact public safety because they can be dangerous to passersby if they fall into disrepair and are distracting, may negatively impact property values, and intrude upon passersby who would otherwise be able to avoid advertising in other mediums), appeal dismissed sub nom. General Outdoor Advertising Co. v. Hoar , 297 U.S. 725, 56 S.Ct. 495, 80 L.Ed. 1008 (1936) ; see also Haller Sign Works v. Physical Culture Training School , 249 Ill. 436, 443-46, 94 N.E. 920 (1911) (discussing cases from numerous jurisdictions where municipalities attempted to regulate advertising signs for purely aesthetic reasons). Scholars have traced the impetus for such regulation to the intrusion of unsightly commercial advertising, both from on premises signs and off premises billboards, after the turn of the twentieth century, as a result of the development of a national system of roads, the popular availability of automobiles, and industrial advances. See note, "Judging the Aesthetics of Billboards," 23 J.L. & Pol. 171 (2007) (collecting extensive scholarly and legal citations discussing rise of outdoor advertising and regulation thereof); see also J. Loshin, "Property in the Horizon: The Theory and Practice of Sign and Billboard Regulation," 30 Environs: Envtl. L. & Policy J. 101 (2006) (case study of New Haven's treatment of signs and billboards); see also J. Houck, Outdoor Advertising: History and Regulation (1969). See General Statutes (Cum. Supp. 1931) § 89c and 90c (authorizing appropriate town board, commission or official to establish "districts or zones within which no commercial or business structure or building, including advertising signs, may be erected" unless person, firm or corporation obtains license to erect "such a structure, building or sign, or any or all of them, within such zone"); General Statutes (Cum. Supp. 1931) § 92c (providing that these statutes did not "prevent any owner of land from advertising on his land any business conducted or any products manufactured, produced or raised by him thereon"). This statement of purpose predated the grant of zoning authority to regulate advertising signs and billboards, and was not originally included in the predecessor to § 8-2. See Public Acts 1925, c. 242, § 2 and 3. In 1947, the legislature moved this statement of purpose into the predecessor to § 8-2. See Public Acts 1947, No. 418, § 2. Our research has revealed only cases of recent vintage in which one jurisdiction adopted an expansive meaning of advertising signs for purposes of zoning regulations, consistent with the plaintiff's view. See Lone Star Security & Video, Inc. v. Los Angeles , 827 F.3d 1192, 1198-1200 (9th Cir. 2016) (adopting broad definition of "advertising" in context of mobile billboards in accordance with California law); Showing Animals Respect & Kindness v. West Hollywood , 166 Cal. App. 4th 815, 819-20, 83 Cal.Rptr.3d 134 (2008) (same). There is no indication in these cases that the statutory provision was enacted during the 1930s or any indication that the courts considered any rule of construction requiring strict construction. The plaintiff appears to base his argument, in part, on the assumption that whether the expression is advertising under the narrower definition would depend on whether it expresses a positive or negative view of the subject. This assumption is flawed. A negative message could be advertising if it is intended to aid indirectly in the sale of a commodity or to advance another interest to the benefit of the proponent (e.g., a business disparaging or demeaning a competitor). Under the facts of the present case, we need not reach the question of whether certain types of political speech would be "advertising" or whether application of specific zoning regulations to that speech would violate the first amendment. In the interim, the legislature may wish to adopt a definition of "advertising signs" to make its views clear on this matter. The city is not being deprived of any constitutional right. See Shaskan v. Waltham Industries Corp. , 168 Conn. 43, 49, 357 A.2d 472 (1975) ("[t]he general rule is that a litigant may only assert his own constitutional rights or immunities").

12497630

WALGREEN EASTERN COMPANY, INC. v. TOWN OF WEST HARTFORD

Walgreen E. Co. v. Town of W. Hartford

2018-07-24

SC 19750

388

408

187 A.3d 388

187

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:32.687249+00:00

Fastcase

WALGREEN EASTERN COMPANY, INC. v. TOWN OF WEST HARTFORD

WALGREEN EASTERN COMPANY, INC. v. TOWN OF WEST HARTFORD SC 19750 Supreme Court of Connecticut. Argued October 19, 2017 Officially released July 24, 2018 Elliott B. Pollack, Hartford, with whom, on the brief, was Tiffany K. Spinella, for the appellant (plaintiff). Patrick G. Alair, West Hartford, corporation counsel, for the appellee (defendant). Kari L. Olson and Proloy K. Das, Hartford, filed a brief for the Connecticut Conference of Municipalities as amicus curiae. Palmer, Robinson, D'Auria, Prescott and Mullins, Js. Opinion The listing of justices reflects their seniority status on this court as of the date of oral argument.

10085

61618

MULLINS, J. The plaintiff, Walgreen Eastern Company, Inc., appeals from the judgment of the trial court denying, in part, its appeal from the decision of the Board of Assessment Appeals (board) of the defendant, the town of West Hartford (town). The trial court concluded that the plaintiff had established aggrievement under General Statutes § 12-117a because the town overvalued its property. The court then found a new valuation for the subject property and ordered the town to provide the plaintiff with the appropriate reimbursement or credit for any overpayment plus interest. In addition, the trial court also determined that the town's assessment was not manifestly excessive under General Statutes § 12-119. In the present appeal, the plaintiff claims that, although the trial court correctly determined that the plaintiff had established aggrievement by showing that the town's valuation of the property was excessive, it incorrectly (1) determined the true and actual value of the subject property, and (2) concluded that the town's valuation of the subject property was not manifestly excessive. We disagree and, accordingly, affirm the judgment of the trial court. The following relevant facts and procedural history are set forth in the trial court's memorandum of decision. "The subject property is a 1.45 acre improved parcel located [at] 940 South Quaker Lane in the town. The property abuts another parcel to the south, with which it was once merged, near the intersection of South Quaker Lane, which is to the west, and New Britain Avenue, which is to the south, in the Elmwood section of the town. "The improvement on the subject property is a 12,805 square foot building originally constructed in 1949 as a movie theater. In 2003, a developer, Nixon Plainville, LLC, purchased the subject property and the adjoining property to the south for $2,500,000, formally subdivided them, and began to convert the building on the subject property into a Walgreens pharmacy. In appraisal terms, the property was of the 'build to suit' type. "The developer entered into a 'triple net' or 'NNN' lease with the plaintiff under which the plaintiff was responsible for the payment of all insurance, maintenance, and property tax expenses. The lease commenced in December, 2004, but the pharmacy did not open until 2006. The lease runs for seventy-five years, but the plaintiff can terminate it after twenty-five years and every five years thereafter. The rent is fixed at $430,000 per year for the term of the lease plus a small percentage of the gross sales. This rate converts to $33.58 per square foot. "In 2006, the developer sold the subject property to Maple West Hartford, LLC, which has been described as an investor, for $6,718,750. There have been no further sales of the property. "The pharmacy now has parking space for approximately [seventy-five] cars. Some of the parking space is shared with Webster Bank, which occupies the property to the south. There is no drive-up service window for the pharmacy. Although the pharmacy is not on the exact corner of South Quaker Lane and New Britain Avenue, it is near the corner. There is a full, two-way auto[mobile] access from and to South Quaker Lane. From New Britain Avenue, cars going westbound can make a right turn into a driveway, marked by a Walgreens sign, that goes behind the bank on the corner and into the [plaintiff's] parking lot. "The pharmacy is visible from the road from all directions except westbound. The westbound view from New Britain Avenue is blocked by the bank and a tree. The intersection of South Quaker Lane and New Britain Avenue has high traffic volume and has a traffic light." In accordance with the town's statutory obligation; see General Statutes § 12-62 (b) (1) ; the assessor conducted a town wide revaluation of all real estate for the grand list of October 1, 2011, and determined that the subject property had a fair market value of $5,020,000 and an assessment value of $3,514,000. The plaintiff challenged the valuation and appealed to the board pursuant to General Statutes § 12-111 (a). The board upheld the assessor's valuation, and the plaintiff appealed to the Superior Court pursuant to § 12-117a and 12-119. In its appeal to the Superior Court, the plaintiff's complaint contained two separate counts. In count one, the plaintiff alleged, pursuant to § 12-117a, that it was aggrieved by the actions of the board because the assessor's valuation of the property exceeded 70 percent of its true and actual value on the assessment date. In count two, the plaintiff alleged, pursuant to § 12-119, that the valuation was "manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of the property." The plaintiff thus sought a reduction in the amount of the tax and the valuation on which it had been based. At trial, the plaintiff presented the testimony of two appraisers, Anthony Barna and Richard Michaud, who both valued the property at $3 million. The town presented the testimony of two appraisers: John Leary, who performed the revaluation for the town, and Christopher Kerin, who valued the property at $4,900,000. The trial court credited Kerin's testimony and determined that the true and actual value of the property was $4,900,000. As a result, the court concluded that the assessor had overvalued the property by assigning it a true and actual value of $5,020,000. Accordingly, because the true and actual value was less than the value assigned by the assessor, the court found that the plaintiff had satisfied its burden of proving aggrievement, and, therefore, the court found in favor of the plaintiff on count one. Addressing count two, the trial court found that the plaintiff had not met its burden of establishing that the assessment was manifestly excessive under § 12-119. The court then rendered judgment in favor of the plaintiff on its § 12-117a count and in favor of the town on the plaintiff's § 12-119 count. The plaintiff appealed. I In its appeal from the § 12-117a count, the plaintiff claims that, although the trial court correctly concluded that it had established aggrievement by proving that the assessor had overvalued its property, the relief awarded was insufficient because the trial court improperly determined the true and actual value of the subject property. Specifically, the plaintiff alleges that the trial court improperly (1) applied General Statutes § 12-63b (b), (2) valued the leased fee interest, rather than the fee simple interest, and (3) selected too narrow a highest and best use for the property. We disagree. We begin with the principles governing municipal tax appeals. " Section 12-117a, which allows taxpayers to appeal the decisions of municipal boards of [assessment appeals] to the Superior Court, provide[s] a method by which an owner of property may directly call in question the valuation placed by assessors upon his property. . In a § 12-117a appeal, the trial court performs a two step function. The burden, in the first instance, is upon the plaintiff to show that he has, in fact, been aggrieved by the action of the board in that his property has been overassessed.... In this regard, [m]ere overvaluation is sufficient to justify redress under [ § 12-117a ], and the court is not limited to a review of whether an assessment has been unreasonable or discriminatory or has resulted in substantial overvaluation.... Whether a property has been overvalued for tax assessment purposes is a question of fact for the trier.... The trier arrives at his own conclusions as to the value of land by weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and his own general knowledge of the elements going to establish value including his own view of the property.... "Only after the court determines that the taxpayer has met his burden of proving that the assessor's valuation was excessive and that the refusal of the board of [assessment appeals] to alter the assessment was improper, however, may the court then proceed to the second step in a § 12-117a appeal and exercise its equitable power to grant such relief as to justice and equity appertains . If a taxpayer is found to be aggrieved by the decision of the board of [assessment appeals], the court tries the matter de novo and the ultimate question is the ascertainment of the true and actual value of the applicant's property." (Citations omitted; internal quotation marks omitted.) Konover v. West Hartford , 242 Conn. 727, 734-35, 699 A.2d 158 (1997). In the present case, the trial court found that the plaintiff met its burden of proving that the assessor's valuation was excessive and that the board's refusal to alter the assessment was improper. The court then proceeded to the second step in the § 12-117a claim, namely, determining the appropriate relief based on the true and actual value of the applicant's property. The plaintiff now challenges the trial court's judgment on the ground that the trial court's finding regarding the true and actual value of the subject property was excessive. "In a tax appeal taken from the trial court to the Appellate Court or to this court, the question of overvaluation usually is a factual one subject to the clearly erroneous standard of review.... Under this deferential standard, [w]e do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.... Additionally, [i]t is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.... The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible.... On appeal, we do not retry the facts or pass on the credibility of witnesses.... Simply put, a trial court is afforded wide discretion in making factual findings and may properly render judgment for a town based solely upon its finding that the method of valuation espoused by a taxpayer's appraiser is unpersuasive.... "Conversely, we review de novo a trial court's decision of law. [W]hen a tax appeal . raises a claim that challenges the propriety of a particular appraisal method in light of a generally applicable rule of law, our review of the trial court's determination whether to apply the rule is plenary.... To be sure, if the trial court rejects a method of appraisal because it determined that the appraiser's calculations were incorrect or based on a flawed formula in that case, or because it determined that an appraisal method was inappropriate for the particular piece of property, that decision is reviewed under the abuse of discretion standard.... Only when the trial court rejects a method of appraisal as a matter of law will we exercise plenary review.... "Thus, the starting point in any tax appeal taken from the Superior Court, including the present appeal, is a determination as to whether the trial court reached its decision through (1) the exercise of its discretion in crediting evidence and expert witness testimony, or (2) as a matter of law." (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) Redding Life Care, LLC v. Redding , 308 Conn. 87, 100-102, 61 A.3d 461 (2013). A The plaintiff first claims that the trial court did not properly apply § 12-63b (b) in valuing the subject property because the court considered the actual rental income under the lease (contract rent) in calculating the true and actual value of the property. Specifically, the plaintiff argues that the trial court improperly rejected the appraisals submitted by the plaintiff's appraisers because they did not include consideration of the contract rent. The plaintiff asserts that the language of § 12-63b (b) does not mandate that the assessor consider contract rents, and that contract rent in the present case was not relevant to establish the true and actual value of the subject property in 2011 because the lease had been negotiated in 2003. Furthermore, the plaintiff asserts that the trial court's reliance on First Bethel Associates v. Bethel , 231 Conn. 731, 651 A.2d 1279 (1995), is misplaced because the holding of First Bethel Associates subsequently was modified or overturned. We reject the plaintiff's claim regarding the application of § 12-63b (b). "[W]hen a tax appeal, like the present one, raises a claim that challenges the propriety of a particular appraisal method in light of a generally applicable rule of law, our review of the trial court's determination whether to apply the rule is plenary. See Sheridan v. Killingly , 278 Conn. 252, 260, 897 A.2d 90 (2006) (applying plenary review to claim that trial court improperly rejected assessor's attribution of value of leasehold interest to lessor's property); see also Torres v. Waterbury , 249 Conn. 110, 118, 733 A.2d 817 (1999) (legal conclusions in municipal tax appeal [are] subject to plenary review)." Breezy Knoll Assn., Inc. v. Morris , 286 Conn. 766, 776-77, 946 A.2d 215 (2008). In the present case, the plaintiff challenges the trial court's decision to reject the appraisal method used by the plaintiff's experts and to adopt the appraisal method used by the town's expert. More specifically, the plaintiff's claim is that the trial court rejected the plaintiff's method of appraisal as a matter of law because the plaintiff's experts failed to consider both contract rent and market rent in the portion of their appraisals based on the income capitalization approach. Accordingly, we conclude that our review of the trial court's decision is plenary. The following additional facts are necessary to resolve the plaintiff's claim. All three appraisers and the trial court used the income capitalization approach and the comparable sales approach to value the subject property. The trial court found that the two appraisals prepared by the plaintiff's experts did not consider the contract rent in their calculations based on the income capitalization approach to value the subject property pursuant to § 12-63b, whereas Kerin, the town's expert, did consider the contract rent. The trial court explained as follows: "Barna and Michaud, the plaintiff's appraisers, determined that the market rent for comparable triple net retail properties, which included stores in in-line shopping centers, averaged $20 and $22 per square foot, respectively. They calculated the subject property's contractual rent at $33.58 per square foot. They declined to adjust the market rate for their analyses because the contract rate was above market. "Kerin, looking at pharmacies only, found the average market rental rate to be $32.16 per square foot. Because the contract [rental] rate of $33.58 [per square foot] was similar, he used a rate of $32 per square foot for the income capitalization analysis." The trial court then concluded: "The analysis of Barna and Michaud did not comply with the statutory command to 'consider the actual rental income .' General Statutes § 12-63b (b)." The court explained: "The court cannot interpret this [statutory] phrase to be meaningless or superfluous.... Yet that is what Barna and Michaud have done. Their only 'consideration' of the actual rental income was to mention it in their reports. They automatically rejected further consideration of actual rental income because in their opinion it was above the market. They did not attempt to reconcile contract rents and market rents, as did Kerin. Essentially, Barna and Michaud gave the contract rents no substantive consideration at all.... Accordingly, the court cannot accept their approach." (Citations omitted.) General Statutes § 12-63 (a) provides in relevant part that, with certain enumerated exceptions not relevant to this appeal, "[t]he present true and actual value of . property shall be deemed by all assessors and boards of assessment appeals to be the fair market value thereof and not its value at a forced or auction sale." Section 12-63b (a) specifies three different methods of calculation to produce a valuation of the true and actual value of the property: "(1) Replacement cost less depreciation, plus the market value of the land, (2) capitalization of net income based on market rent for similar property, and (3) a sales comparison approach based on current bona fide sales of comparable property...." Only the income capitalization approach is at issue in this appeal. Section 12-63b (b) explains the meaning of "market rent" as it is used in the income capitalization approach. Specifically, § 12-63b (b) provides: "For purposes of subdivision (2) of subsection (a) of this section and, generally, in its use as a factor in any appraisal with respect to real property used primarily for the purpose of producing rental income, the term 'market rent' means the rental income that such property would most probably command on the open market as indicated by present rentals being paid for comparable space. In determining market rent the assessor shall consider the actual rental income applicable with respect to such real property under the terms of an existing contract of lease at the time of such determination ." (Emphasis added.) Notwithstanding this statutory language, the plaintiff asserts that § 12-63b (b) does not require that contract rents be considered by an appraiser. In particular, the plaintiff argues that if the contract is a long-term contract, as it is in this case, it does not reflect the current market rent for the property. We disagree. In First Bethel Associates v. Bethel , supra, 231 Conn. at 731, 651 A.2d 1279, this court considered and rejected a claim similar to the one raised in the present appeal. In that case, the defendant, the town of Bethel, claimed that the assessor must consider contract rent, but only if it is equivalent to the market rent, whereas, the plaintiff, First Bethel Associates, claimed that the trial court should have considered contract rent only, and not market rent, in its determination of the market value utilizing the income capitalization approach. Id., at 737-38, 651 A.2d 1279. This court rejected both of these contentions and, instead, concluded that "the statute requires that, in determining a property's 'market rent,' the assessor and, therefore, the court, in determining the fair market value of the property, must consider both (1) net rent for comparable properties, and (2) the net rent derived from any existing leases on the property. This legislative approach makes sense because it reflects the reality that a willing seller and a willing buyer-whose ultimate judgments are what we mean by 'fair market value'-would themselves consider in arriving at a price for the property that is subject to leases that do not closely approximate current rentals for similar properties." (Emphasis in original; footnote omitted.) Id., at 740, 651 A.2d 1279. This court further explained: "The town [of Bethel] argues that contract rent should not factor into the valuation process unless it is equivalent to the rent that the property would command on the open market. Such a construction, however, would mean that contract rent would factor into the analysis only if it had no effect on the overall valuation, rendering meaningless the direction of § 12-63b (b) to consider actual rental income. Similarly, [First Bethel] Associates' argument that only contract rent should be considered ignores the statute's direction to take into account what the property would most probably command on the open market . It is a well established rule of statutory construction that we will not read a statute in such a way as to render a portion of it superfluous.... Therefore, we reject the parties' proposed constructions because they each would render a portion of the statute mere surplusage." (Citations omitted; internal quotation marks omitted.) Id., at 740-41, 651 A.2d 1279 ; see also Sheridan v. Killingly , supra, 278 Conn. at 261-64, 897 A.2d 90 (recognizing that § 12-63b contemplates that actual rental income be included in income capitalization approach to valuation). Accordingly, we conclude that the trial court's conclusion that an appraisal method based on the income capitalization approach in the present case must consider both market and contract rent is in accordance with First Bethel Associates . The plaintiff asserts, however, that this court subsequently has, sub silentio, overruled or modified its conclusion in First Bethel Associates , and, as result, the trial court in the present case incorrectly considered the contract rent of the subject property. In support of its claim, the plaintiff cites to PJM & Associates, LC v. Bridgeport , 292 Conn. 125, 971 A.2d 24 (2009), and J.E. Robert Co. v. Signature Properties, LLC , 320 Conn. 91, 128 A.3d 471 (2016). Specifically, the plaintiff asserts that, in PJM & Associates, LC , and J.E. Robert Co. , this court held that contract rent should be considered only if it is similar to market rent. We disagree and conclude that First Bethel Associates has not been modified or overruled by these cases and remains good law. In PJM & Associates, LC , the parties did not raise, and this court did not consider, the question of whether contract rent should be considered when using the income capitalization approach to valuing property. The question in PJM & Associates, LC , involved only whether actual rents and income from nonvaluation years should be considered under § 12-63b (b). See PJM & Associates, LC v. Bridgeport , 292 Conn. at 128-29, 971 A.2d 24. Indeed, this court's decision in that case cited to First Bethel Associates favorably for the proposition that " '[m]arket rent' under § 12-63b (b) thus is calculated by examining the '(1) net rent for comparable properties, and (2) the net rent derived from existing leases on the property.' " Id., at 140, 971 A.2d 24, quoting First Bethel Associates v. Bethel , supra, 231 Conn. at 740, 651 A.2d 1279. Similarly, our review of J.E. Robert Co. also demonstrates that this court did not overrule or modify First Bethel Associates . In fact, J.E. Robert Co. does not even involve § 12-63b (b), but, rather, is an appeal from a foreclosure action. J.E. Robert Co. v. Signature Properties, LLC , supra, 320 Conn. at 93, 128 A.3d 471. In J.E. Robert Co., this court examined whether the trial court in a mortgage foreclosure action properly relied on an appraisal that valued the leased fee interest in a property, instead of the fee simple interest. Id. Ultimately, this court concluded that it did not need to decide whether it was improper for the trial court to rely on an appraisal that valued the leased fee interest in the property because if contract rents are at market rates as they were in that case, the value of the leased fee and fee simple interests of mortgaged property is equivalent. Id., at 97, 128 A.3d 471. Not only did J.E. Robert Co. not overrule First Bethel Associates , but this court again cited First Bethel Associates approvingly. Id., at 99-100, 128 A.3d 471. Therefore, we are not persuaded that First Bethel Associates has been modified or overruled. The plaintiff also asserts that the trial court was incorrect to consider contract rents in the present case because the lease under which these contract rents are due is a seventy-five year lease that was negotiated in 2003. The plaintiff claims that a long-term lease negotiated eight years prior to the revaluation is irrelevant. We disagree. Neither the amount of time that has passed since the lease was negotiated nor the length of the lease is a factor contemplated in § 12-63b (b). To the contrary, § 12-63b (b) requires the consideration of "the actual rental income applicable with respect to such real property under the terms of an existing contract of lease at the time of such determination." In the present case, the trial court relied on an expert who considered the contract rent due under a lease that existed in 2011. The plaintiff does not claim that the lease was not in effect in 2011, or that the amount Kerin used as the contract rent was incorrect. Therefore, in considering contract rent, the trial court complied with § 12-63b (b). In sum, the trial court correctly concluded that § 12-63b (b) requires that a valuation based on the income capitalization approach consider both contract rents and market rents. Accordingly, we conclude that the trial court correctly rejected the income capitalization analyses presented by the plaintiff's experts, who did not comply with § 12-63b (b). B The plaintiff also claims that the trial court improperly valued the leased fee interest in the subject property, rather than the fee simple interest. Specifically, the plaintiff asserts that the trial court "erred as a matter of law by incorrectly characterizing the 'fee simple' interest [by] conflating the definitions of 'fee simple' and 'leased fee.' " It contends that the trial court did not value the proper interest. The town asserts that the trial court did not value the leased fee interest of the subject property, but instead correctly applied the law to determine the "true and actual value" of the property. We agree with the town. We begin with the appropriate standard of review. As we have explained previously in this opinion, "when a tax appeal, like the present one, raises a claim that challenges the propriety of a particular appraisal method in light of a generally applicable rule of law, our review of the trial court's determination whether to apply the rule is plenary." Breezy Knoll Assn., Inc. v. Morris , supra, 286 Conn. at 776, 946 A.2d 215. The trial court explained that "[t]he General Statutes do not specifically address the nature of the property interest that the town should assess, but instead only require an assessment of the 'true and actual value of real property .' " The trial court further explained that "[b]oth parties to this case actually agree that the town should assess the fee simple interest in real property. They disagree, however, on the meaning of a fee simple interest." Ultimately, the trial court reasoned that "what the town really seeks to tax is not the actual value of the lease in place but rather the capacity or potential of the real property to be leased. That characteristic is not contractual or transitory but rather inheres in the property." Thereafter, the trial court engaged in an analysis of § 12-63b (b), which we discussed in part I A of this opinion, and concluded that both contract rents and market rents must be considered to determine the true and actual value of the subject property. The plaintiff does not clearly explain its claim that trial court improperly valued the leased fee interest. Nevertheless, after considering the plaintiff's brief in combination with its oral argument before this court, we construe the plaintiff's claim to be that the trial court's consideration of the actual rents when determining the true and actual value of the subject property led to an improper valuing of the leased fee interest, rather than the fee simple interest. We disagree. Before analyzing this claim, it is helpful to identify the distinctions between the fee simple interest, the leasehold interest and the leased fee interest. The Dictionary of Real Estate Appraisal defines "fee simple interest" as "[a]bsolute ownership unencumbered by any other interest or estate, subject only to the limitations imposed by the governmental powers of taxation, eminent domain, police power, and escheat." Dictionary of Real Estate Appraisal (6th Ed. 2015) p. 90. "Leasehold interest" is defined as "[t]he right held by the lessee to use and occupy real estate for a stated term and under the conditions specified in the lease." Id., p. 128. "Leased fee interest" is defined as "[t]he ownership interest held by the lessor, which includes the right to receive the contract rent specified in the lease plus the reversionary right when the lease expires." Id. As we have explained previously in this opinion, General Statutes § 12-62a (b) requires the assessment to be based on the "true and actual value" of the plaintiff's property. The "true and actual value" is further defined as the "fair market value." General Statutes § 12-63 (a). As we explained in part I A of this opinion, § 12-63b (b) requires the consideration of both contract rents and market rents to determine the fair market value under the income capitalization approach. The plaintiff's claim in the present case is similar to the issue addressed by this court in Sheridan v. Killingly , supra, 278 Conn. at 252, 897 A.2d 90. In Sheridan , the town of Killingly appealed from the judgment of the trial court, which had determined that its assessment was excessive because the valuation of the property using the income capitalization approach should not have considered the value of the leasehold interest, but should have considered only the actual rental income. Id., at 254, 897 A.2d 90. This court reversed the judgment of the trial court. Id. We concluded that the trial court improperly ruled, as a matter of law, that the town of Killingly could not consider the value of the leasehold interest in its valuation of a leased property for tax assessment purposes. Id. In doing so, this court explained that "we recognized in First Bethel Associates that § 12-63b clearly contemplated that an income capitalization analysis based solely on actual rental income from a long-term lease might not reflect the true and actual value of the property for purposes of General Statutes § 12-64, if the actual rents did not reflect fair market value. In other words, we recognized that a leased property might have a fair market value that exceeds the capitalized value of the actual rental income and that excess value may be taken into account in assessing the true and actual value of the property for purposes of taxing the owner, even though the tenant receives the economic benefit of that excess value. In taking that excess value into account, the town [of Killingly] does not thereby tax the property owner for a property interest that belongs to the lessee. Rather, [it] uses the excess value as an indicator of the true and actual value of the owner's interest." (Emphasis in original; footnote omitted.) Id., at 262-63, 897 A.2d 90. This court further explained that "if [a town] cannot assess a tax on the owner of leased property for the market value of the leasehold interest, it will be unable to tax the true and actual value of the property as required by General Statutes § 12-62a (b)." Id., at 263-64, 897 A.2d 90. This court concluded that "considering the value of the lessee's interest does not require the plaintiff to pay a tax on property that belongs to the lessee, but only to pay a tax on the true and actual value of his own property as measured, in part, by the value of the lessee's interest." (Emphasis omitted.) Id., at 265, 897 A.2d 90. In the present case, as we explained in part I A of this opinion, the trial court correctly concluded that § 12-63b (b) requires that a valuation under the income capitalization approach must consider both contract and market rent. Therefore, the trial court's consideration of the value of the leasehold interest as one factor utilized to arrive at the true and actual value of the plaintiff's property is authorized and required by the statutory scheme. Furthermore, the trial court was able to consider the value of the leasehold interest in connection with the other substantial evidence regarding the true and actual value of the subject property. On the basis of all of the testimony and evidence presented at trial, the trial court determined the true and actual value of the subject property consistent with the statutory scheme. Thus, on the basis of the foregoing, we conclude that the trial court properly considered the leasehold interest as one indicator of the true and actual value of the owner's interest in the subject property. C The plaintiff asserts that the trial court incorrectly selected too narrow a highest and best use of the subject property. In support of its claim, the plaintiff cites United Technologies Corp. v. East Windsor , 262 Conn. 11, 26 n.22, 807 A.2d 955 (2002), in which this court explained that "an extremely narrow highest and best use conclusion might result in a very small or even nonexistent market, thereby eliminating the availability of market sales analysis as a useful valuation tool." The town responds that the trial court's determination that continuing as a retail pharmacy is the highest and best use of the subject property is not clearly erroneous based on the evidence presented at trial, and that United Technologies Corp. supports the trial court's determination. We agree with the town. The following legal principles are relevant to our analysis. "A property's highest and best use is commonly accepted by real estate appraisers as the starting point for the analysis of its true and actual value.... [U]nder the general rule of property valuation, fair [market] value, of necessity, regardless of the method of valuation, takes into account the highest and best value of the land.... A property's highest and best use is commonly defined as the use that will most likely produce the highest market value, greatest financial return, or the most profit from the use of a particular piece of real estate . The highest and best use determination is inextricably intertwined with the marketplace because fair market value is defined as the price that a willing buyer would pay a willing seller based on the highest and best possible use of the land assuming, of course, that a market exists for such optimum use.... The highest and best use conclusion necessarily affects the rest of the valuation process because, as the major factor in determining the scope of the market for the property, it dictates which methods of valuation are applicable. Finally, a trier's determination of a property's highest and best use is a question of fact that we will not disturb unless it is clearly erroneous." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) United Technologies Corp. v. East Windsor , supra, 262 Conn. at 25-26, 807 A.2d 955. "Under this deferential standard, [w]e do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.... A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citation omitted; internal quotation marks omitted.) Id., at 23, 807 A.2d 955. At trial, the plaintiff's appraiser, the town's appraisers, and the court utilized substantially the same standard for determining the highest and best use of the subject property as improved real estate. Kerin was of the opinion that "the highest and best use of the subject property as improved real estate is for continued present use of the subject property as a retail pharmacy." Kerin based that conclusion on the following: the fact that the property's improvements were designed and constructed to the plaintiff's specifications; the continued legal feasibility of the present use under West Hartford zoning laws; the continued physical feasibility of the present use because the subject improvements were in good condition; the continued financial feasibility of the present use; and the fact that their highest and best use determination reflects that "[t]here is no alternative use to which the subject property could be put [that] would yield a higher present value indication." By contrast, the plaintiff's appraisers, Michaud and Barna, reached a more generalized conclusion. Specifically, Michaud found that "[t]he highest and best use of the site as improved [real estate] is for continued retail/commercial use." In arriving at this more general conclusion, Michaud explained that "[g]iven the site's zoning, its physical characteristics, market conditions and the characteristics of the area, it appears the most productive use of the land is for retail or commercial development." Barna reached that same conclusion, stating that "the current use as a retail building represents the highest and best use of the property, as improved." The town also introduced testimony and a report written by its expert, Leary, who had performed work for the town's revaluation of the subject property. The report contained "an analysis of the appropriate methodology for the valuation of national chain pharmacy property with particular emphasis on valuation for ad valorem property assessment purposes in Connecticut." Also in his report, Leary explained that "the national chain pharmacy submarket is a subset of the [single tenant] building submarket in the retail market sector. This submarket has developed significantly since the turn of the century when the major national pharmacy chains began to leave tenant spaces in strip centers for [freestanding], preferably corner locations." In its written memorandum of decision, the trial court explained that "the testimony and reports of Kerin and Leary . identify the existence of a national chain pharmacy submarket, which is a subset of the single tenant building submarket in the retail market sector." The trial court then explained that property in this submarket is marketable to investors because they can receive rental income; the properties support a single tenant with a triple net lease who "is willing to pay above market rents because its focus is on location, sales, and customer convenience rather than real estate costs and immediate profit." The trial court ultimately determined that, "[a]s a result of all of these factors, there is an active market for these properties.... Therefore, it is fully appropriate to consider the highest and best use of the subject property to be as a retail pharmacy." (Citation omitted.) Although this court expressed a concern in United Technologies Corp. v. East Windsor , supra, 262 Conn. at 26 n.22, 807 A.2d 955, that too narrow a highest and best use market might be problematic, a review of the entirety of this court's decision in that case supports the trial court's decision in the present case. In United Technologies Corp. , the plaintiff property owner asserted, inter alia, that the trial court had arrived at an improperly restrictive conclusion regarding the highest and best use for the property. The trial court had concluded that "the highest and best use of the subject premises as improved would be . its continued use as an industrial facility as presently used by [the plaintiff]." (Internal quotation marks omitted.) Id., at 25, 807 A.2d 955. This court affirmed the judgment of the trial court, explaining that "the trial court gave careful consideration to the expert testimony and reports, and its findings are amply supported in the record, its highest and best use determination is not clearly erroneous and will therefore not be disturbed on appeal." Id., at 28, 807 A.2d 955. In the present case, after the trial court carefully considered the testimony of four experts in the field of real estate appraisal, it chose to credit the town's experts. "It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.... The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony he reasonably believes to be credible.... On appeal, we do not retry the facts or pass on the credibility of witnesses." (Citations omitted; internal quotation marks omitted.) Newbury Commons Ltd. Partnership v. Stamford , 226 Conn. 92, 99, 626 A.2d 1292 (1993). As the trial court explained, it was convinced by the town's experts, both Kerin and Leary, that a national chain pharmacy submarket exists and that the highest and best use of the subject property is within this submarket. The trial court's findings as to the property's special features for a national retail pharmacy-namely, that it is a freestanding building located at a corner with a traffic signal at the intersection, which has been remodeled and is under a triple net lease-have strong support in the record. Therefore, we cannot conclude that the trial court's finding that the highest and best use of the subject property as a retail pharmacy is clearly erroneous. The trial court's finding of the existence of a national chain pharmacy submarket also is supported by our sister state, New York, where this issue recently has been addressed. For instance, the Appellate Division of the Supreme Court of New York has determined that "there is no serious dispute" that a "national submarket for the sale and purchase of built-to-suit net lease national chain drugstores" exists, noting that "sales and rental data for that submarket [are] readily available ." Rite Aid Corp. v. Huseby , 130 App. Div. 3d 1518, 1521-22, 13 N.Y.S.3d 753 (2015), appeal denied, 26 N.Y.3d 916, 47 N.E.3d 90, 26 N.Y.S.3d 760, cert. denied, - U.S. -, 137 S.Ct. 174, 196 L.Ed.2d 124 (2016) ; see also Rite Aid Corp. v. Haywood , 130 App. Div. 3d 1510, 1513, 15 N.Y.S.3d 523 (2015) (same), appeal denied, 26 N.Y.3d 915, 47 N.E.3d 90, 26 N.Y.S.3d 760, cert. denied, - U.S. -, 137 S.Ct. 174, 196 L.Ed.2d 124 (2016) ; Rite Aid of New York No. 4928 v. Assessor of Town of Colonie , 58 App. Div. 3d 963, 965-66, 870 N.Y.S.2d 642 (rejecting claim that it was incorrect to consider evidence of net lease drugstore submarket as method of valuation), appeal denied, 12 N.Y.3d 709, 908 N.E.2d 925, 881 N.Y.S.2d 17 (2009). Accordingly, we conclude that the trial court's determination of the highest and best use of the subject property as a retail pharmacy is not clearly erroneous. In conclusion, we reject the plaintiff's claim that, although the trial court properly found that it had established aggrievement under § 12-117a, the trial court's order of relief was insufficient. Instead, we conclude that the trial court's award of relief in the present case was proper because the trial court properly determined the true and actual value of the plaintiff's property. II The plaintiff next claims that the trial court incorrectly concluded that the plaintiff failed to establish a manifestly excessive valuation of the property under § 12-119. As grounds for its claim, the plaintiff asserts that the valuation of the subject property was excessive when compared to other properties in town. The town responds that the trial court correctly concluded that the plaintiff failed to meet its high burden pursuant to § 12-119. We agree with the town. "In a tax appeal taken pursuant to § 12-119, the plaintiff must prove that the assessment was (a) manifestly excessive and (b) . could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of the property.... [The plaintiff] must [set forth] allegations beyond the mere claim that the assessor overvalued the property. [The] plaintiff . must satisfy the trier that [a] far more exacting test has been met: either there was misfeasance or nonfeasance by the taxing authorities, or the assessment was arbitrary or so excessive or discriminatory as in itself to show a disregard of duty on their part.... Only if the plaintiff is able to meet this exacting test by establishing that the action of the assessors would result in illegality can the plaintiff prevail in an action under § 12-119. The focus of § 12-119 is whether the assessment is illegal.... The statute applies only to an assessment that establishes a disregard of duty by the assessors.... "While an insufficiency of data or the selection of an inappropriate method of appraisal could serve as the basis for not crediting the appraisal report that resulted, it could not, absent evidence of misfeasance or malfeasance , serve as the basis for an application for relief from a wrongful assessment under § 12-119.... In short, when reviewing a claim raised under § 12-119, a court must determine whether the plaintiff has proven that the assessment was the result of illegal conduct." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Redding Life Care, LLC v. Redding , supra, 308 Conn. at 105-106, 61 A.3d 461. Here, the plaintiff's sole claim of error under § 12-119 is that the valuation of the subject property was excessive when viewed in comparison to other properties in town. The testimony at trial demonstrated that the town applied the same process to valuing the other properties that it applied to the subject property, and Leary testified as to why the other properties were dissimilar to the subject property-namely, because they were smaller, less recently remodeled, and not stand alone buildings at a corner with a traffic signal. Furthermore, even though the plaintiff has established that its property was overvalued, "[m]ere overvaluation, without more, in an assessment of property is not enough to make out a case under § 12-119...." E. Ingraham Co. v. Bristol , 146 Conn. 403, 408-409, 151 A.2d 700 (1959), cert. denied, 361 U.S. 929, 80 S.Ct. 367, 4 L.Ed.2d 352 (1960). Moreover, because we concluded in part I of this opinion that the trial court correctly determined the true and actual value of the plaintiff's property as $4,900,000, and the town originally valued the property at $5,020,000, "we conclude that the circumstances presented here do not rise to the level of the extraordinary situation that would warrant tax relief under the provisions of § 12-119." Second Stone Ridge Cooperative Corp. v. Bridgeport , 220 Conn. 335, 343, 597 A.2d 326 (1991) ; see also id. ("[b]ecause we are not faced with a situation involving the absolute nontaxability of the property and because the selection of an inappropriate method of appraisal or a paucity of the underlying data in connection with an appraisal, without more, is not manifestly illegal under our statutes, we conclude that the circumstances presented here do not rise to the level of the extraordinary situation that would warrant tax relief under the provisions of § 12-119"). Accordingly, we conclude that the trial court properly determined that the plaintiff did not meet its burden to establish a claim under § 12-119. The judgment is affirmed. In this opinion the other justices concurred. General Statutes § 12-117a provides in relevant part: "Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, October 1, 1992, October 1, 1993, October 1, 1994, or October 1, 1995, and with respect to the assessment list for assessment years thereafter, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court.... The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable ." Although § 12-117a was amended in 2013; see Public Acts 2013, No. 13-276, § 5; that amendment has no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute. General Statutes § 12-119 provides in relevant part: "When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated.... In all such actions, the Superior Court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains ." General Statutes § 12-62 (b) (1) provides: "Commencing October 1, 2006, each town shall implement a revaluation not later than the first day of October that follows, by five years, the October first assessment date on which the town's previous revaluation became effective, provided, a town that opted to defer a revaluation, pursuant to section 12-62l , shall implement a revaluation not later than the first day of October that follows, by five years, the October first assessment date on which the town's deferred revaluation became effective. The town shall use assessments derived from each such revaluation for the purpose of levying property taxes for the assessment year in which such revaluation is effective and for each assessment year that follows until the ensuing revaluation becomes effective." General Statutes § 12-63b provides: "(a) The assessor or board of assessors in any town, at any time, when determining the present true and actual value of real property as provided in section 12-63, which property is used primarily for the purpose of producing rental income, exclusive of such property used solely for residential purposes, containing not more than six dwelling units and in which the owner resides, shall determine such value on the basis of an appraisal which shall include to the extent applicable with respect to such property, consideration of each of the following methods of appraisal: (1) Replacement cost less depreciation, plus the market value of the land, (2) capitalization of net income based on market rent for similar property, and (3) a sales comparison approach based on current bona fide sales of comparable property. The provisions of this section shall not be applicable with respect to any housing assisted by the federal or state government except any such housing for which the federal assistance directly related to rent for each unit in such housing is no less than the difference between the fair market rent for each such unit in the applicable area and the amount of rent payable by the tenant in each such unit, as determined under the federal program providing for such assistance. "(b) For purposes of subdivision (2) of subsection (a) of this section and, generally, in its use as a factor in any appraisal with respect to real property used primarily for the purpose of producing rental income, the term 'market rent' means the rental income that such property would most probably command on the open market as indicated by present rentals being paid for comparable space. In determining market rent the assessor shall consider the actual rental income applicable with respect to such real property under the terms of an existing contract of lease at the time of such determination." The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. The plaintiff also claims that the trial court improperly valued the user-namely, the value of the plaintiff as a company and its value in the location-rather than the value of the property. In support of its claim, the plaintiff relies solely on the fact that the trial court incorrectly considered the plaintiff's lease when valuing the subject property. As we explain in parts I A and I B of this opinion, the trial court properly considered rent due under the plaintiff's lease pursuant to § 12-63b (b). Accordingly, for the reasons fully set forth in parts I A and I B of this opinion, we reject the plaintiff's claim that the trial court improperly valued the user instead of the subject property. See footnote 4 of this opinion. The trial court explained: "As a practical matter, the issue here devolves into a question of defining the relevant market or, in reality, the highest and best use of the property. If a market exists for properties that produce relatively high rents with minimal landlord responsibilities, then the leased fee value of the sale may coincide with the fee simple value. In this case, as discussed, it is possible to identify this sort of discrete market in the case of properties suitable for building and renting to a single pharmacy with a triple net lease. As discussed, the subject property has these characteristics. "It therefore follows that the highest and best use of the property is to lease it to a retail pharmacy and that it is fully permissible to consider the rental potential of the property in determining the true and actual value of its fee simple interest. Only Kerin's appraisal takes this approach. For these reasons, the court credits Kerin's appraisal." The Dictionary of Real Estate Appraisal uses "fee simple interest" interchangeably with "fee simple estate," and "leased fee interest" interchangeably with "leased fee estate." The Dictionary of Real Estate Appraisal, supra, pp. 90, 128. For the purposes of clarity, we use the terms "fee simple interest" and "leased fee interest." The plaintiff seems to assert that the market and contract rents in Sheridan v. Killingly , supra, 278 Conn. at 252, 897 A.2d 90, were considered because the contract rents were below market value and its holding does not extend to contract rents that are above market value. We disagree. In First Bethel Associates and Sheridan , this court concluded that both contract and market rents should be considered when determining the fair market value of a rental property and placed no such limitation on the consideration of contract rents only when they are below market rents. The plaintiff cites Walgreen Co. v. Oshkosh , Docket No. AP2818, 359 Wis.2d 675, 2014 WL 7151754, *3 (App. 2014), in which the Wisconsin Court of Appeals rejected the defendant city's assessment and its conclusion that the highest and best use of the plaintiff's properties was "continued use as [first] generation freestanding drug stores ." (Emphasis omitted; internal quotation marks omitted.) A review of the court's analysis demonstrates that it rejected the city's highest and best use determination because that determination allowed the city to violate a previous decision of the Wisconsin Supreme Court, which had concluded in a previous case that " 'the assessor must use the market rent, not the contract rent' " to value retail property leased at above market rents. Id., quoting Walgreen Co. v. Madison , 311 Wis. 2d 158, 198, 752 N.W.2d 687 (2008). Specifically, the Wisconsin Court of Appeals determined "that where contractual rights inflate the value of leased retail property, assessors must look to the market to reach their valuations. '[A]n assessor's task is to value the real estate, not the business concern which may be using the property.' " Walgreen Co. v. Oshkosh , supra, at *1, quoting Walgreen Co. v. Madison , supra, at 197, 752 N.W.2d 687. The plaintiff also cites to a similar case from Indiana, Shelby County Assessor v. CVS Pharmacy, Inc. , 994 N.E.2d 350 (Ind. Tax 2013). In that case, the Indiana Tax Court concluded that the Indiana Board of Tax Review correctly rejected an assessor's conclusion that the contractual rent of a stand-alone drugstore should be used in the income approach under Indiana law. Because Connecticut law requires the consideration of both market and contract rent for valuations pursuant to § 12-63b (b), we conclude that Oshkosh and Shelby County Assessor are inapplicable to the present case. The plaintiff asserts that a plenary standard of review should apply to the trial court's highest and best use determination because the trial court improperly valued the leased fee interest rather than the fee simple interest and this incorrect legal conclusion impacted its determination of the highest and best use. We disagree. It is well established that a trial court's determination of the highest and best use of property is a factual determination subject to a clearly erroneous standard of review. Furthermore, we conclude in part I B of this opinion that the trial court did not value the incorrect interest in the property. Instead, consistent with this court's analysis in Redding Life Care, LLC v. Redding , supra, 308 Conn. at 102, 61 A.3d 461, we conclude that "the trial court reached its decision [on the highest and best use of the subject property] through . the exercise of its discretion in crediting evidence and expert witness testimony ." Accordingly, we conclude that the clearly erroneous standard of review is applicable to the plaintiff's claim regarding the highest and best use of the subject property. Michaud's appraisal, citing a treatise authored by the Appraisal Institute, defined "highest and best use" as follows: "The reasonably probable and legal use of vacant land or an improved property that is physically possible, appropriately supported and financially feasible and that results in the highest value." See Appraisal Institute, The Appraisal of Real Estate (13th Ed. 2008). Barna provided the exact same definition, but cited to a more recent edition of the same source. See Appraisal Institute, The Appraisal of Real Estate (14th Ed. 2013). Kerin, citing the Dictionary of Real Estate Appraisal (5th Ed. 2010), used the following substantially similar definition: "[T]he use that should be made of a property as it exists. An existing improvement should be renovated or retained as is so long as it continues to contribute to the total market value of the property, or until the return from a new improvement would more than offset the cost of demolishing the existing building and constructing a new one." In determining the highest and best use of the subject property, the trial court also explained that "[p]roperties of this type tend to attract investors in 'like kind' exchanges. See 28 U.S.C. § 1031 [2011]." The plaintiff asserts that it was clear error for the trial court to rely on § 1031, which prevents the recognition of certain gains or losses on real property for the purpose of federal income taxation, to support the valuation of the subject property. We disagree with the plaintiff's contention. The trial court merely mentioned § 1031 as one factor in deciding the highest and best use of the subject property. The trial court's consideration of the attractiveness of the existing triple net lease arrangement of the subject property was not clear error. To the contrary, there was ample evidence in the record to support the trial court's finding regarding the marketability of these properties. Specifically, Kerin testified: "The single tenant triple net property is very attractive to people who are doing § 1031 like kind exchanges. It's easy to identify properties. It's simple to understand . there's not a lot of due diligence [that is] required, that may be required in a multi-tenant property. In a multi-tenant property, you've got to go through the whole shopping center to . see what needs to be fixed up. On the single tenant [triple] net leased property, the tenant is responsible for the property. And, again, it's very simple to understand. You find a lot of § 1031 exchange buyers active in this national market." Accordingly, it was not clear error for the trial court to consider this evidence when determining the highest and best use of the subject property because it demonstrates what a willing buyer would pay a willing seller.

12497518

STATE of Connecticut v. Erick BENNETT

State v. Bennett

2018-05-15

AC 40395

1200

1208

187 A.3d 1200

187

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:32.687249+00:00

Fastcase

STATE of Connecticut v. Erick BENNETT

STATE of Connecticut v. Erick BENNETT AC 40395 Appellate Court of Connecticut. Argued February 6, 2018 Officially released May 15, 2018 Erick Bennett, self-represented, the appellant (defendant). Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, Karen A. Roberg, assistant state's attorney, and Mary Elizabeth Baran, former senior assistant state's attorney, for the appellee (state). Sheldon, Elgo and Shaban, Js.

3774

23366

SHELDON, J. The defendant, Erick Bennett was found guilty by a jury on the charge of murder on June 29, 2011, and was later sentenced on that charge, on August 26, 2011, to a term of fifty years imprisonment. He now appeals from the subsequent judgment of the trial court dismissing three postjudgment motions to dismiss the information on which he was convicted of murder, and dismissing in part and denying in part his contemporaneous motion to correct an illegal sentence in relation to the sentence imposed on him for that offense, which he filed and prosecuted during the pendency of his ultimately unsuccessful direct appeal. State v. Bennett , 324 Conn. 744, 155 A.3d 188 (2017). We affirm the judgment of the trial court. In March, 2016, more than four years after he was sentenced, as aforesaid, for murder, the defendant filed three motions to dismiss the information under which he was convicted of that offense. In his first motion to dismiss, which he titled "Motion Challenging Original Subject Matter Jurisdiction," the defendant alleged that the original trial court lacked subject matter jurisdiction over his murder prosecution because the warrant under which he was arrested was based on evidence seized illegally pursuant to an invalid and illegally executed search and seizure warrant. In his second motion to dismiss, he alleged that the state had violated his right to a fair trial by obtaining without a warrant, and later using against him at trial, detailed information concerning his trial strategy, which its agents had recorded on twenty-two CDs of his telephone conversations with others while he was in jail awaiting trial. In his third motion to dismiss, he alleged that the state had violated his rights to due process and a fair trial under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963), by failing to disclose to him or his counsel exculpatory information concerning the arrest of the state medical examiner who had performed the autopsy on the victim in his murder case. On July 6, 2016, the defendant also filed a motion to correct an illegal sentence, which he later amended on July 28, 2016. The trial court, Clifford, J. , heard argument on the foregoing motions, then ruled on them from the bench, on August 4, 2016. Initially addressing the defendant's three motions to dismiss, the court concluded that it lacked jurisdiction over such motions because they did not fall within any of the narrow exceptions to the general common-law rule that a trial court loses jurisdiction over a criminal case after the defendant has begun to serve his sentence therein. Accordingly, it ordered that each such motion be dismissed. Then, addressing the defendant's amended motion to correct an illegal sentence, the court first noted that, although a trial court retains jurisdiction over a criminal case, after the defendant has begun to serve his sentence in that case, to decide a proper motion to correct, under Practice Book § 43-22, in which the defendant challenges either the legality of his sentence or the legality of the manner in which that sentence was imposed, it has no jurisdiction under that rule to adjudicate any challenge to the legality of the underlying conviction on which the challenged sentence was imposed. To the extent that the motion to correct challenged the legality of the underlying conviction, the court ordered that that motion, like the defendant's three postjudgment motions to dismiss, must also be dismissed. Finally, the court turned to the one claim raised in the defendant's motion to correct over which it found that it had jurisdiction, to wit: that the trial court, in passing sentence on the defendant, had improperly relied on inaccurate information concerning his criminal record. The court rejected that claim on the merits, finding that the defendant had not proved either that materially inaccurate information had been presented to the trial court in relation to his sentencing for murder or that the court had relied on such information in imposing sentence on him. With respect to that final aspect of the defendant's motion to correct, the court ordered that the motion be denied. This appeal followed. Additional facts will be set forth as necessary. I The defendant's first claim on appeal is that the trial court erred in dismissing his first postjudgment motion to dismiss challenging the original trial court's subject matter jurisdiction over his murder prosecution. We conclude that the court correctly determined that it lacked jurisdiction over this motion, and thus affirm its judgment dismissing the motion. "We have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary." (Internal quotation marks omitted.) State v. Brundage , 320 Conn. 740, 747, 135 A.3d 697 (2016). "It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed.... This is so because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence . There are a limited number of circumstances in which the legislature has conferred on the trial courts continuing jurisdiction to act on their judgments after the commencement of sentence.... See, e.g., General Statutes § 53a-29 through 53a-34 (permitting trial court to modify terms of probation after sentence is imposed); General Statutes § 52-270 (granting jurisdiction to trial court to hear petition for a new trial after execution of original sentence has commenced); General Statutes § 53a-39 (allowing trial court to modify sentences of less than three years provided hearing is held and good cause shown).... Without a legislative or constitutional grant of continuing jurisdiction, however, the trial court lacks jurisdiction to modify its judgment." (Internal quotation marks omitted.) Turner v. State , 172 Conn. App. 352, 366, 160 A.3d 398 (2017). On appeal, the defendant reiterates the claims he made before the trial court, arguing that a search and seizure warrant issued for his house and vehicle on July 11, 2009, was not executed and evidence obtained on the basis of the warrant (two pieces of screws from a knife, which had blood like substances on them and were found in the defendant's car) was "fraudulently fabricated." He thus alleges that the arrest warrant based on the evidence seized was invalid and the jurisdiction of the original trial court was "infect[ed] ." In his appeal, the defendant additionally claims that his conviction was not final and his docket number was still open pursuant to Practice Book § 62-4. He argues that because a challenge to a court's original subject matter jurisdiction can be raised at any time, citing to Practice Book § 10-33, and the power of a court to vacate a judgment due to fraud is "inherent and independent of statutory provisions authorizing the opening of judgment[s]," citing to Kenworthy v. Kenworthy , 180 Conn. 129, 131, 429 A.2d 837 (1980), the trial court did have jurisdiction to review his motion to dismiss and abused its discretion by dismissing the motion. We are not persuaded. Following his conviction, the defendant was sentenced in August, 2011. His motion does not raise an issue over which the trial court has jurisdiction beyond his sentencing date, and therefore, the trial court properly dismissed his motion. II The defendant's second claim on appeal is that the trial court erred in dismissing his second postjudgment motion to dismiss for alleged "failure to disclose, and theft of [his] trial strategy." As set forth in part I of this opinion, because the defendant's motion challenges the legality of his underlying conviction without falling within any of the narrow exceptions to the general common-law rule that a trial court loses jurisdiction over a criminal case after the defendant has begun to serve his sentence therein, the court properly dismissed the motion for lack of jurisdiction. III The defendant's third claim on appeal is that the trial court erred in dismissing his third postjudgment motion to dismiss for failure to disclose Brady materials. As set forth in part I of this opinion, because the defendant's motion challenges the legality of his underlying conviction without falling within any of the narrow exceptions to the general common-law rule that a trial court loses jurisdiction over a criminal case after the defendant has begun to serve his sentence therein, the court properly dismissed the motion for lack of jurisdiction. IV The defendant's fourth and final claim on appeal is that the court erred in denying his motion to correct an illegal sentence. Practice Book § 43-22 provides that "[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner." "[A]n illegal sentence is essentially one [that] either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory. By contrast . [s]entences imposed in an illegal manner have been defined as being within the relevant statutory limits but . imposed in a way [that] violates [a] defendant's right . to be addressed personally at sentencing and to speak in mitigation of punishment . or his right to be sentenced by a judge relying on accurate information or considerations solely in the record , or his right that the government keep its plea agreement promises . These definitions are not exhaustive, however, and the parameters of an invalid sentence will evolve . as additional rights and procedures affecting sentencing are subsequently recognized under state and federal law.... "[A] claim that the trial court improperly denied a defendant's motion to correct an illegal sentence is reviewed pursuant to the abuse of discretion standard.... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court's decision and every reasonable presumption is given in favor of its correctness.... We will reverse the trial court's ruling only if it could not reasonably conclude as it did.... "[D]ue process precludes a sentencing court from relying on materially untrue or unreliable information in imposing a sentence.... To prevail on such a claim as it relates to a [presentence investigation report (report) ], [a] defendant [cannot] . merely alleg[e] that [his report] contained factual inaccuracies or inappropriate information.... [He] must show that the information was materially inaccurate and that the [sentencing] judge relied on that information.... A sentencing court demonstrates actual reliance on misinformation when the court gives explicit attention to it, [bases] its sentence at least in part on it, or gives specific consideration to the information before imposing sentence." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Antwon W. , 179 Conn. App. 668, 672-73, 181 A.3d 144, cert. denied, 328 Conn. 924, 180 A.3d 965 (2018). On appeal, the defendant reiterates the claim that he made before the trial court, arguing: "[U]pon commencing the sentence upon the defendant, the trial judge relied on vital inaccurate information in the presentence report . because the trial judge took into consideration a pending case of the defendant . which was interfering/and [carrying] a firearm while under the influence, which is a misdemeanor, but . the presentence . report that he considered said that the defendant had a pending case that consist[s] of interfering/resisting arrest and illegal use of a firearm while under the influence, which is a felony.... Thus, violating the [defendant's] right to be sentence[d] by a judge relying on accurate information ." (Citations omitted.) The trial court acknowledged that it had jurisdiction over the defendant's motion to correct an illegal sentence on the basis of his claim that he had been sentenced on the basis of materially inaccurate information. The court denied the motion because it found that the defendant failed to satisfy his burden of proving that the information was inaccurate or that the sentencing judge gave the allegedly inaccurate information explicit attention and that it affected the defendant's sentence. We agree with the court's conclusion that the defendant's claim is belied by the record. Our review of the August 26, 2011 sentencing transcript reveals that the court explicitly referenced only the defendant's pending charges for interfering with a police officer and illegal use of a firearm, and in fact that the court gave the defendant a degree of credit in sentencing because of his lack of a criminal record. Moreover, our review of the report reveals that the defendant's pending charges were listed as violations of General Statutes § 53a-167a and 53-206d (a). Last, we note that at the time of sentencing before the original trial court, when the defendant was asked if he wanted to make any changes to the report after having had an opportunity to review it with his trial counsel, he requested no changes and otherwise raised no issue as to the accuracy of the report. Therefore, the trial court reasonably determined that the sentencing court did not rely on inaccurate information in sentencing the defendant, and thus that the defendant's sentence was not imposed in an illegal manner. We conclude, on that basis, that the trial court did not abuse its discretion by denying that limited portion of the defendant's motion to correct an illegal sentence over which it had subject matter jurisdiction. The judgment is affirmed. In this opinion the other judges concurred. The defendant alleged multiple grounds for the illegality of his sentence, including that the sentencing court relied on inaccurate information because the charging document, which was incorporated into the presentence investigation report (report), was based on a search warrant that was not properly executed; that the sentencing court considered inaccurate information in the report in the matter of two witnesses, Jennifer Matias and Christopher Benjamin; that the state's failure to disclose the twenty-two CDs was structural error because he was not able to use the information to argue in mitigation of his punishment; that the sentencing court's impartiality was called into question after the judge listened to the content of the twenty-two CDs, some part of which included comments about the judge; that the state's failure to disclose the arrest of the state medical examiner was structural error because he was not able to use the information to argue in mitigation of punishment; and that the sentencing court considered and relied on inaccurate information in the report, in particular, a pending felony charge. In the amendment, the defendant alleged that the trial court and the prosecutor had never sworn an oath of office, which omission he claimed constituted structural error, and rendered the sentence void and divested the court of jurisdiction. Regarding the defendant's first motion, the court stated: "[T]he law in Connecticut is that once the court sentences someone, which Judge Fischer did . the trial court loses jurisdiction. We've now turned you over to the Department of Correction or, Judge Fischer did.... And the law is that the only way we can have further jurisdiction is if it's been conferred by the legislature or by our Practice Book . But without a legislative or constitutional grant of jurisdiction, the court lacks it, except in the area of a motion to correct an illegal sentence under certain grounds. But that's not what's being claimed. This is a separate motion . challenging original subject matter jurisdiction. Issues about arrest warrants being based on a search warrant that's not valid or fourth amendment and due process, this court has, you know-a motion to correct an illegal sentence is geared toward the, you know, toward the sentence and not even how you were convicted. There are other remedies for that. Direct appeals, potential habeas, et cetera. So, I'm-I have no jurisdiction, actually, to rule on your motion challenging the original subject matter jurisdiction." Regarding the defendant's second and third motions, the court stated: "Now, you have two motions to dismiss, which, I'm just warning you, I'm going to have a similar problem . 'cause one concerns suppressing the arrest . of the medical examiner because of some procedures they weren't following, and the other was about the recorded phone calls from [the Department of Correction]. And I'm going to have issues once again with me deciding a motion to dismiss, and I'm not-I don't believe I have jurisdiction on those, either, but I will hear you. "I don't have a criminal case really pending here. So, I am dismissing your motions to dismiss because this court does not have jurisdiction." The following colloquy occurred: "The Court: "Now-so, I will-what I see in the motion to correct an illegal sentence-you have a number of claims, and I will-well, and I will say, basically, that-that certainly due process precludes a sentencing court [from] relying on materially untrue or unreliable information in imposing a sentence, and the issue on whether the court relied on inaccurate information is, first of all, was there inaccurate information and did the court give explicit attention to it that its sentence was at least based in part on or give specific consideration to it. Now, you make a lot of claims. Okay. "The Defendant: Yes, sir. "The Court: That I guess you're going to address. I know, one, you indicate that the sentence is void ab initio. You talk about something about the recorded phone calls again, that you were never declared a hostile witness, but you were threatened by the judge. When you get into inaccurate information, you start talking about the court not taking into consideration information that the crime lab didn't-or the lab didn't follow proper methods. I think there's things you claim in the presentence report that the court said something about you having a knife with a four inch serrated blade, but you indicate no knife was found and the [state medical examiner] could not say how long the-the blade was. That the sentencing court mentioned something about you could have walked away from this incident and gone back home, but you said your home was across town. So, the only thing to me that may bring in-may bring in the jurisdiction of the court are your claims that the court may have relied on inaccurate information, but for that, you must prove to me that there was information that was inaccurate, that it was material, and that the court relied upon it." In his brief, the defendant refers to the dismissals of his motions to dismiss as denials of the motions. We will refer to motions the court dismissed as dismissals. Practice Book § 62-4 provides: "A case that has been appealed shall remain on the docket of the court where it was tried until the appeal is decided or terminated." The defendant also requests review pursuant to the plain error rule. See Practice Book § 60-5. Because this request is inadequately briefed, we decline to review it. See Brady v. Maryland , supra, 373 U.S. 83, 83 S.Ct. 1194. The trial court found that all but one of the defendant's alleged grounds for his motion merely attacked the defendant's conviction; see footnote 1 of this opinion; and did not prove that the sentencing court had relied on inaccurate information or that the information was material in the defendant's sentencing. Therefore, the court dismissed those portions of the defendant's motion to correct an illegal sentence because it did not have jurisdiction over those claims. For the reasons stated previously in this opinion, we affirm the trial court's dismissal of the defendant's motion to correct an illegal sentence on that basis. At the hearing before Judge Clifford, the following colloquy occurred: "The Defendant: . Thus, this inaccurate information . that was taken into account is untrue because the defendant has never been charged with illegal use of a firearm, which is a class D felony, which indicates General Statutes § 53a-216, which states in relevant part, a person is guilty of criminal use of a firearm or electric-or electronic defense weapon when he commits any class A, B or C unclassified felony as defined in [General Statutes § ] 53a-25 and in the commission of such felony- "The Court: I need to ask you a question. "The Defendant: Yes, sir. "The Court: The presentence report showed you had the pending charge. What did it-how did it read in the presentence report? "The Defendant: That's how it read. It read in the presentence report that I was- "The Court: What did it read as the pending case? "The Defendant: That's what it read. "The Court: Well- "The Defendant: As a pending case, it read that I was arrested for interfering with police, resisting arrest and illegal use of a firearm." The relevant portion of the transcript reveals the following comments by Judge Fischer: "To your credit, you've had no substance abuse history and also to your credit your criminal record consists of just two pending matters initiated out of the same incident. One's interfering with a police officer and one's illegal use of a firearm. And, Mr. Bennett, I will give you a degree of credit for lack of your criminal record when I impose the sentence." General Statutes § 53-206d (a) provides: "(1) No person shall carry a pistol, revolver, machine gun, shotgun, rifle or other firearm, which is loaded and from which a shot may be discharged, upon his person (A) while under the influence of intoxicating liquor or any drug, or both, or (B) while the ratio of alcohol in the blood of such person is eight-hundredths of one per cent or more of alcohol, by weight. "(2) Any person who violates any provision of this subsection shall be guilty of a class B misdemeanor." The relevant portion of the transcript at sentencing reflects the following colloquy between the court and defense counsel: "The Court: Thank you. I'll ask Attorney [Joseph A.] Jaumann and Attorney [John C.] Drapp, gentlemen, have you had a chance to review the presentence investigation yourselves? "Mr. Jaumann: Yes, Your Honor. "The Court: Did you have a chance to review it with [the defendant]? "Mr. Jaumann: Yes, Your Honor. "The Court: Any changes to the presentence investigation? "Mr. Jaumann: No, Your Honor. "The Court: Again, [the defendant] has had a chance to review it; is that correct? "Mr. Jaumann: That's correct."

12497514

George E. MENDILLO v. TINLEY, RENEHAN & DOST, LLP, et al.

Mendillo v. Tinley, Renehan & Dost, LLP

2018-07-24

SC 19923

1154

1163

187 A.3d 1154

187

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:32.687249+00:00

Fastcase

George E. MENDILLO v. TINLEY, RENEHAN & DOST, LLP, et al.

George E. MENDILLO v. TINLEY, RENEHAN & DOST, LLP, et al. SC 19923 Supreme Court of Connecticut. Argued May 3, 2018 Officially released July 24, 2018 George E. Mendillo, Woodbury, self-represented, with whom was John G. Manning, Waterbury, for the appellant (plaintiff). Jeffrey J. Tinley, Waterbury, for the appellee (named defendant). Jane R. Rosenberg, solicitor general, with whom, on the brief, was George Jepsen, attorney general, for the appellees (defendant Connecticut Appellate Court et al.). Palmer, McDonald, Robinson, Mullins and Kahn, Js. This case originally was scheduled to be argued before a panel of this court consisting of Justices Palmer, McDonald, Robinson, Mullins and Kahn. Although Justice Robinson was not present when the case was argued before the court, he has read the briefs and appendices, and listened to a recording of the oral argument prior to participating in this decision. The listing of justices reflects their seniority status on this court as of the date of oral argument.

4704

29909

ROBINSON, J. In this appeal, we consider whether the Superior Court has subject matter jurisdiction over a declaratory judgment action brought as a collateral attack on a judgment of the Appellate Court concerning the plaintiff, George E. Mendillo. The plaintiff appeals from the judgment of the trial court dismissing his declaratory judgment action against the defendants, the law firm of Tinley, Renehan & Dost, LLP (law firm), and the Connecticut Appellate Court. On appeal, the plaintiff, who is an attorney, claims that the trial court improperly concluded that his challenge to the Appellate Court's interpretation of rule 4.2 of the Rules of Professional Conduct in Sowell v. DiCara , 161 Conn. App. 102, 127 A.3d 356, cert. denied, 320 Conn. 909, 128 A.3d 953 (2015), was barred by the doctrine of sovereign immunity. We, however, do not reach the sovereign immunity issues raised by the plaintiff because we agree with the defendants' alternative jurisdictional argument, and conclude that the plaintiff's collateral attack on Sowell in this declaratory judgment action is nonjusticiable under Valvo v. Freedom of Information Commission , 294 Conn. 534, 985 A.2d 1052 (2010). Accordingly, we affirm the judgment of the trial court. The record reveals the following undisputed relevant facts and procedural history. The plaintiff represents Julie M. Sowell, the plaintiff in a wrongful discharge action pending in the Superior Court against her former employer, Southbury-Middlebury Youth and Family Services, Inc. (Youth Services), a Connecticut nonstock, nonprofit corporation that had been dissolved, Deirdre H. DiCara, its executive director, and Mary Jane McClay, the chairperson of its board of directors. See Sowell v. DiCara , Superior Court, judicial district of Waterbury, Docket No. CV-12-6016087-S (Sowell action). On September 6, 2012, the law firm filed an appearance in the Sowell action on behalf of Youth Services, McClay, and DiCara. At a hearing held on December 12, 2013, the trial court, Hon. Barbara J. Sheedy , judge trial referee, granted Youth Services' motion for an emergency protective order (protective order) on the basis of the court's finding that the plaintiff had violated rule 4.2 of the Rules of Professional Conduct by communicating directly with certain "putative" members of Youth Services' board of directors regarding the merits of a counterclaim that counsel for Youth Services had filed against Sowell at McClay's direction. Although Judge Sheedy did not order any sanctions against the plaintiff, the protective order enjoined him from further contact of any kind with members of Youth Services' board of directors without prior permission from the law firm. See Sowell v. DiCara , supra, 161 Conn. App. at 107, 118, 127 A.3d 356. The plaintiff filed a writ of error in this court challenging the basis for the protective order (first writ), which was subsequently transferred to the Appellate Court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. Id., at 119, 127 A.3d 356. In the first writ, the plaintiff claimed that Judge Sheedy had (1) improperly found clear and convincing evidence that he had violated rule 4.2 of the Rules of Professional Conduct, and (2) violated his state and federal constitutional rights to due process and abused its discretion by refusing to permit him to present evidence at the hearing on the motion for a protective order. Id. The Appellate Court issued a comprehensive opinion rejecting the plaintiff's challenges to the basis for the protective order, namely, the finding that he had violated rule 4.2, and rendered judgment dismissing the first writ. Id., at 133, 127 A.3d 356. This court subsequently denied the plaintiff's petition for certification to appeal in an order dated December 16, 2015; see Sowell v. DiCara , 320 Conn. 909, 128 A.3d 953 (2015) ; and later denied the plaintiff's motion for reconsideration of that denial. Subsequently, on February 4, 2016, the plaintiff filed a writ of error in this court challenging the Appellate Court's actions (second writ). This court dismissed the second writ on May 25, 2016, and denied the plaintiff's motion for reconsideration en banc of that dismissal on June 27, 2016. On October 3, 2016, the plaintiff filed the present action in the Superior Court seeking a declaratory judgment pursuant to General Statutes § 52-29 and 42 U.S.C. § 1983 (2012). In the first count of the declaratory judgment complaint, the plaintiff claimed that there is substantial uncertainty with respect to the scope, meaning, and applicability of rule 4.2 of the Rules of Professional Conduct affecting his legal rights and relations with other parties. In the second count, the plaintiff claimed that the Appellate Court exceeded its constitutional authority and violated his constitutional rights by finding facts from evidence beyond the trial court record, namely, the existence of an attorney-client relationship between the law firm and Youth Services, which he was not given the opportunity to rebut or explain. In the third count, the plaintiff sought a declaration pursuant to 42 U.S.C. § 1983 that rule 4.2 is unconstitutional under the due process and equal protection clauses as applied to the facts of this case. In the fourth count, the plaintiff claimed that the Appellate Court had violated his free speech rights under the state and federal constitutions because his speech was a reasonable remedial measure under rule 3.3 (b) of the Rules of Professional Conduct to address fraud and a matter of public importance. In the fifth count, the plaintiff claimed that the Appellate Court's construction of rule 4.2 was a due process violation because it amounted to an ex post facto law. In the sixth count, the plaintiff claimed a violation of his right to equal protection of the laws. The defendants moved to dismiss the declaratory judgment complaint, claiming that the plaintiff's claims are nonjusticiable and barred by the doctrine of sovereign immunity. The trial court, Schuman, J. , granted the motion to dismiss, concluding that General Statutes § 51-197f precluded further review of the Appellate Court's decision in Sowell v. DiCara , supra, 161 Conn. App. at 102, 127 A.3d 356, except by this court following a petition for certification. The trial court further concluded that the claims against the Appellate Court were barred by sovereign immunity. Concluding that it lacked subject matter jurisdiction, the trial court granted the defendants' motion to dismiss and rendered judgment accordingly. This appeal followed. On appeal, the plaintiff claims that the trial court improperly concluded that the existence of binding precedent, namely, the decision of the Appellate Court in Sowell v. DiCara , supra, 161 Conn. App. at 102, 127 A.3d 356, operated to deprive the trial court of jurisdiction because the constitutional issues did not arise until after the Appellate Court rendered that decision. The plaintiff also argues that he has standing to seek a declaratory judgment under § 52-29 because the Appellate Court's decision in Sowell "has caused a continuing injury to his reputation and professional standing and the unconstitutional application of rule 4.2 [of the Rules of Professional Conduct] by the Appellate Court poses an immediate threat of further injury in the future." The plaintiff then contends in detail that the trial court improperly determined that sovereign immunity and judicial immunity barred his claim for declaratory relief under § 52-29 and 42 U.S.C. § 1983. In response, the defendants contend, inter alia, that the trial court properly dismissed the plaintiff's claims because they are not justiciable, relying specifically on Valvo v. Freedom of Information Commission , supra, 294 Conn. at 534, 985 A.2d 1052, to argue that no practical relief is available because a trial court lacks the authority to reverse the rulings of another court in a separate case, and particularly those of the Appellate Court, which are binding precedent. The defendants contend that the sole avenue of relief available to the plaintiff was his petition for certification to appeal from the judgment of the Appellate Court to this court pursuant to § 51-197f. The defendants emphasize that the plaintiff's complaint did not allege any facts to establish the existence of a "dispute separate and distinct from his desire to overturn Sowell ," such as a new threat of discipline under rule 4.2 of the Rules of Professional Conduct or a new situation in which he might commit a similar violation of rule 4.2. We agree with the defendants and conclude that the trial court lacked subject matter jurisdiction over this declaratory judgment action because the plaintiff's claims are not justiciable. "A motion to dismiss . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.... In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court must consider the allegations of the complaint in their most favorable light . including those facts necessarily implied from the allegations ." (Citations omitted; internal quotation marks omitted.) Giannoni v. Commissioner of Transportation , 322 Conn. 344, 349, 141 A.3d 784 (2016) ; see id., at 349-50, 141 A.3d 784 (discussing "different situations" with respect to motion to dismiss "depending on the status of the record in the case," which might require consideration of "supplementary undisputed facts" or evidentiary hearing to resolve "critical factual dispute" [internal quotation marks omitted] ). We engage in plenary review of a trial court's grant of a motion to dismiss for lack of subject matter jurisdiction. See, e.g., Chief Information Officer v. Computers Plus Center, Inc. , 310 Conn. 60, 79, 74 A.3d 1242 (2013) ; Valvo v. Freedom of Information Commission , supra, 294 Conn. at 541, 985 A.2d 1052. "In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Giannoni v. Commissioner of Transportation , supra, 322 Conn. at 350, 141 A.3d 784. "Justiciability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter." (Internal quotation marks omitted.) Keller v. Beckenstein , 305 Conn. 523, 537-38, 46 A.3d 102 (2012). "Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable.... Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . (2) that the interests of the parties be adverse . (3) that the matter in controversy be capable of being adjudicated by judicial power . and (4) that the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) Glastonbury v. Metropolitan District Commission , 328 Conn. 326, 333, 179 A.3d 201 (2018). The declaratory judgment procedure, governed by § 52-29 and Practice Book § 17-54 et seq., does not relieve the plaintiff from justiciability requirements. A "declaratory judgment action pursuant to § 52-29... provides a valuable tool by which litigants may resolve uncertainty of legal obligations.... The [declaratory judgment] procedure has the distinct advantage of affording to the court in granting any relief consequential to its determination of rights the opportunity of tailoring that relief to the particular circumstances.... A declaratory judgment action is not, however, a procedural panacea for use on all occasions, but, rather, is limited to solving justiciable controversies.... Invoking § 52-29 does not create jurisdiction where it would not otherwise exist." (Citations omitted; internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc. , 263 Conn. 616, 625, 822 A.2d 196 (2003). "As we noted in Pamela B. v. Ment , 244 Conn. 296, 323-24, 709 A.2d 1089 (1998), [w]hile the declaratory judgment procedure may not be utilized merely to secure advice on the law . or to establish abstract principles of law . or to secure the construction of a statute if the effect of that construction will not affect a plaintiff's personal rights . it may be employed in a justiciable controversy where the interests are adverse, where there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement, and where all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.... Finally, the determination of the controversy must be capable of resulting in practical relief to the complainant.... "In deciding whether the plaintiff's complaint presents a justiciable claim, we make no determination regarding its merits. Rather, we consider only whether the matter in controversy [is] capable of being adjudicated by judicial power according to the aforestated well established principles." (Citations omitted; internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc. , supra, 263 Conn. at 625-26, 822 A.2d 196 ; see also Wilson v. Kelley , 224 Conn. 110, 116, 617 A.2d 433 (1992) ("Implicit in these principles is the notion that a declaratory judgment must rest on some cause of action that would be cognizable in a nondeclaratory suit.... To hold otherwise would convert our declaratory judgment statute and rules into a convenient route for procuring an advisory opinion on moot or abstract questions . and would mean that the declaratory judgment statute and rules created substantive rights that did not otherwise exist." [Citations omitted.] ). In determining whether the present case is justiciable, we find instructive Valvo v. Freedom of Information Commission , supra, 294 Conn. at 543, 985 A.2d 1052, in which this court concluded that the plaintiff's claim, brought through an administrative appeal, was nonjusticiable when he sought to have the trial court "overturn sealing orders issued by another trial court in a separate case." See also id. ("[w]e are aware of no authority for the proposition that a trial court presiding over an administrative appeal may overturn a ruling by another trial court in an entirely unrelated case involving different parties-a proposition that the plaintiffs themselves have characterized as novel" [emphasis omitted] ). Rejecting the proposed collateral attack as "completely unworkable," we observed that "[o]ur jurisprudence concerning the trial court's authority to overturn or to modify a ruling in a particular case assumes, as a proposition so basic that it requires no citation of authority, that any such action will be taken only by the trial court with continuing jurisdiction over the case, and that the only court with continuing jurisdiction is the court that originally rendered the ruling." Id., at 543-44, 985 A.2d 1052. We emphasized that "[t]his assumption is well justified in light of the public policies favoring consistency and stability of judgments and the orderly administration of justice.... It would wreak havoc on the judicial system to allow a trial court in an administrative appeal to second-guess the judgment of another trial court in a separate proceeding involving different parties, and possibly to render an inconsistent ruling." (Citations omitted.) Id., at 545, 985 A.2d 1052 ; see also id., at 548, 985 A.2d 1052 ("We reject the plaintiffs' claims that they may mount a collateral attack on the sealing orders in this administrative appeal. We conclude, therefore, that the plaintiffs' claim that the remaining five sealed docket sheets are administrative records subject to the act is nonjusticiable because no practical relief is available ."). Similarly, in ASL Associates v. Zoning Commission , 18 Conn. App. 542, 559 A.2d 236 (1989), the Appellate Court concluded that it lacked subject matter jurisdiction over a reservation arising from a declaratory judgment action brought to settle the interpretation of a zoning regulation because "the plaintiff's complaint fails to allege an actual controversy. The plaintiff obtained a building permit issued pursuant to the special permit and began the site work for the condominium project in the fall of 1986. There is no allegation that the defendant has taken, or even has threatened to take, action to declare the special permit void or to rescind the building permit." Id., at 546, 559 A.2d 236. Significantly, the Appellate Court further emphasized that, "[w ]here the parties in a case were parties to an earlier action in which the same issue was the subject of a final judgment, it is difficult to understand how there could remain a justiciable or real controversy between the parties . The question presented in the prior action, as well as in this action, was whether the town could issue a building permit to the plaintiff. The plaintiff and the defendant were parties to that action, and cannot impose their wish upon this court to have the same issue determined once again by way of this declaratory judgment action." (Citation omitted; emphasis added.) Id., at 548, 559 A.2d 236. On the basis of these authorities, we agree with the defendants that the present case is nonjusticiable because no practical relief is available to the plaintiff insofar as the allegations in the declaratory judgment complaint demonstrate that it is nothing more than a collateral attack on the protective order imposed by the trial court, Sheedy, J. , in the Sowell action, and upheld by the Appellate Court in Sowell v. DiCara , supra, 161 Conn. App. at 102, 127 A.3d 356. Although the plaintiff alleges in his declaratory judgment complaint that a court decision would provide guidance to members of the bar with respect to their "future conduct," that allegation is nothing more than a request for an advisory opinion, insofar as none of the allegations therein identifies a dispute beyond that considered by the Appellate Court in Sowell . Put differently, the remainder of the allegations in the complaint unmistakably indicate that this case is a collateral challenge to the prior Appellate Court decision in Sowell concerning the plaintiff's previous violation of rule 4.2 of the Rules of Professional Conduct, rather than an action seeking guidance as to the application or vitality of principles from that decision with respect to a different set of facts. Thus, to entertain this declaratory judgment action would violate § 51-197f, which renders the Appellate Court's decision final insofar as the plaintiff has had his opportunity to seek review by a petition for certification to appeal. Cf. Presnick v. Santoro , 832 F.Supp. 521, 529-30 (D. Conn. 1993) (dismissing claim seeking to enjoin Superior Court chief clerk from enforcing judgment or to force Appellate Court to hear dismissed appeal because, in addition to Rooker - Feldman abstention, "[n]othing has been alleged here that would prevent the plaintiff from appealing the order dismissing his appeal by certification to the Connecticut Supreme Court pursuant to . § 51-197f, or, thereafter, to the United States Supreme Court itself"). Given the finality of the Appellate Court's judgment in Sowell , the trial court simply had no authority to afford the plaintiff relief by disturbing it in this collateral proceeding, rendering the present case nonjusticiable. The plaintiff contends, however, that, "taken to its logical [end], this [conclusion] leads to the proposition that a court is deprived of subject matter jurisdiction whenever the outcome on the merits of any plaintiff's claim is determined unfavorably by a prior binding precedent or series of such precedents." We disagree. We emphasize that, consistent with the purpose of the declaratory judgment procedure, nothing would preclude a different attorney-or even this plaintiff himself-from asking a court to overrule the precedent set by Sowell v. DiCara , supra, 161 Conn. App. at 102, 127 A.3d 356, in connection with a different dispute concerning the application of rule 4.2 of the Rules of Professional Conduct. In the absence of such allegations establishing the bona fide existence of a dispute, the plaintiff's declaratory judgment action is purely a hypothetical request for an advisory opinion that second-guesses an existing final judgment, over which jurisdiction will not lie under § 52-29. See Costantino v. Skolnick , 294 Conn. 719, 737-38, 988 A.2d 257 (2010) (no jurisdiction over declaratory judgment action concerning insurance coverage for prejudgment interest when "predicates for an award of offer of judgment interest under [General Statutes] § 52-192a had not been met"); Liberty Mutual Ins. Co. v. Lone Star Industries, Inc. , 290 Conn. 767, 814-15, 967 A.2d 1 (2009) (for purposes of jurisdiction over declaratory judgment action concerning excess insurance policy, court remanded case for factual determination as to whether it is "reasonably likely that the insured's potential liability will reach into the excess coverage"); Milford Power Co., LLC v. Alstom Power, Inc. , supra, 263 Conn. at 626-27, 822 A.2d 196 (no jurisdiction over declaratory judgment action concerning meaning of contract's force majeure clause when defendant had not yet asserted claim of entitlement under contract). Accordingly, we conclude that the present case is not justiciable, and the trial court, therefore, properly granted the defendants' motion to dismiss. The judgment is affirmed. In this opinion the other justices concurred. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2. The plaintiff also named as defendants three judges of the Appellate Court acting in their official capacities, specifically, Douglas S. Lavine, Eliot D. Prescott, and Nina F. Elgo. We also note that the law firm has adopted the brief of the Appellate Court in the present appeal. Accordingly, we refer to the defendants collectively where appropriate and individually by name. Rule 4.2 of the Rules of Professional Conduct provides in relevant part: "In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so...." The Commentary to rule 4.2 provides in relevant part: "This Rule does not prohibit communication with a party, or an employee or agent of a party, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Also, parties to a matter may communicate directly with each other and a lawyer having independent justification for communicating with the other party is permitted to do so. Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter. "In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule...." A detailed rendition of the facts and procedural history underlying Judge Sheedy's finding is set forth in Sowell v. DiCara , supra, 161 Conn. App. at 105-18, 127 A.3d 356. With respect to the specific claims presented in the first writ, the Appellate Court relied on the letters attached to Youth Services' motion for a protective order and the plaintiff's "admission before the court that he sent the claim letter to the board of directors, and [Judge Sheedy's] articulation," and "conclude[d] that there was clear and convincing evidence before the court that [the plaintiff] violated rule 4.2 [of the Rules of Professional Conduct] by communicating with [the law firm's] clients without [its] permission." Sowell v. DiCara , supra, 161 Conn. App. at 126, 127 A.3d 356 ; see id., at 126-29, 127 A.3d 356 (noting that claim presented "legal question" concerning whether "the members of [Youth Services'] board of directors were [the law firm's] clients," as contemplated by rule 1.13 [a] of the Rules of Professional Conduct, given fact that "agency had been dissolved and was in the process of winding up" pursuant to General Statutes § 33-884 [a] ). The Appellate Court next concluded that due process did not require an evidentiary hearing at which McClay would testify or her deposition testimony would be admitted into evidence, insofar as "an evidentiary hearing would serve no purpose because the issue before [the Appellate Court] was not a question of fact, but an issue of law. In essence, therefore, [the plaintiff] had a hearing at which he was able to create a record and tell his side of the story."Id., at 131, 127 A.3d 356. Finally, citing judicial economy and the lack of disputed facts, the Appellate Court rejected the plaintiff's claim "that the court abused its discretion as to the admission of evidence by failing to let him present testimony and place a document into evidence." Id., at 131-33, 127 A.3d 356. Unless otherwise noted, all references to the trial court hereinafter are to Judge Schuman. General Statutes § 51-197f provides in relevant part: "Upon final determination of any appeal by the Appellate Court, there shall be no right to further review except the Supreme Court shall have the power to certify cases for its review upon petition by an aggrieved party or by the appellate panel which heard the matter...." Given our conclusion with respect to justiciability, we need not address in detail the plaintiff's comprehensive arguments with respect to sovereign and judicial immunity, and the defendants' equally comprehensive responses thereto. See District of Columbia Court of Appeals v. Feldman , 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) ; Rooker v. Fidelity Trust Co. , 263 U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362 (1923). We acknowledge, as a practical matter, that a trial court considering such a claim in the first instance would be bound by Sowell v. DiCara , supra, 161 Conn. App. at 102, 127 A.3d 356, because, "[a]lthough the doctrine of stare decisis permits a court to overturn its own prior cases in limited circumstances, the concept of binding precedent prohibits a trial court from overturning a prior decision of an appellate court. This prohibition is necessary to accomplish the purpose of a hierarchical judicial system. A trial court is required to follow the prior decisions of an appellate court to the extent that they are applicable to facts and issues in the case before it, and the trial court may not overturn or disregard binding precedent." (Emphasis in original.) Potvin v. Lincoln Service & Equipment Co. , 298 Conn. 620, 650, 6 A.3d 60 (2010). Moreover, given the Appellate Court's well established policy with respect to panel decisions, the party challenging the vitality of Sowell would need to secure transfer to this court or review by the Appellate Court en banc to obtain relief. See, e.g., Hylton v. Gunter , 313 Conn. 472, 488 n.16, 97 A.3d 970 (2014) ; State v. Tucker , 179 Conn. App. 270, 278 n.4, 178 A.3d 1103, cert. denied, 328 Conn. 917, 180 A.3d 963 (2018). Finally, although the parties to such a declaratory judgment action might use a reservation to advance the legal issue concerning the vitality of Sowell into the Appellate Court or this court more expeditiously; see Practice Book § 73-1 (a) ; the use of that reservation procedure would not relieve the Appellate Court of its obligation to ensure that jurisdiction lies over the underlying declaratory judgment action. See ASL Associates v. Zoning Commission , supra, 18 Conn. App. at 546-49, 559 A.2d 236.

12503388

Thomas E. S. BONILLA v. COMMISSIONER OF CORRECTION

Bonilla v. Comm'r of Corr.

2018-12-04

AC 41150

883

883

196 A.3d 883

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

Thomas E. S. BONILLA v. COMMISSIONER OF CORRECTION

Thomas E. S. BONILLA v. COMMISSIONER OF CORRECTION AC 41150 Appellate Court of Connecticut. Argued November 13, 2018 Officially released December 4, 2018

29

191

Per Curiam. The appeal is dismissed.

12503385

Barbara DAHLE v. The STOP AND SHOP SUPERMARKET COMPANY, LLC, et al.

Dahle v. Stop & Shop Supermarket Co.

2018-09-25

AC 39528

862

870

196 A.3d 862

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

DiPentima, C.J., and Sheldon and Harper, Js.

Barbara DAHLE v. The STOP AND SHOP SUPERMARKET COMPANY, LLC, et al.

Barbara DAHLE v. The STOP AND SHOP SUPERMARKET COMPANY, LLC, et al. AC 39528 Appellate Court of Connecticut. Argued April 16, 2018 Officially released September 25, 2018 Barbara Dahle, self-represented, the appellant (plaintiff). Jane M. Carlozzi, Cheshire, for the appellee (named defendant). Francis C. Vignati, Jr., assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (defendant Second Injury Fund). DiPentima, C.J., and Sheldon and Harper, Js.

3879

24425

HARPER, J. The plaintiff, Barbara Dahle, appeals from the decision of the Compensation Review Board (board), which affirmed the decision of the Workers' Compensation Commissioner for the Sixth District dismissing the plaintiff's claim that she was entitled to temporary total disability benefits without a social security offset. On appeal, the plaintiff claims that the board erred by: (1) not addressing past incorrect evidence, not finding her new evidence credible, and not addressing a statement from Commissioner Stephen B. Delaney about delayed medical care; and (2) denying her request for financial compensation without a social security offset pursuant to General Statutes (Rev. to 2003) § 31-307 (e). We disagree and, accordingly, affirm the decision of the board. The following facts and procedural history are relevant to our resolution of this appeal. On August 8, 2003, the plaintiff suffered a compensable injury to her right shoulder and left hip after she fell during and in the course of her employment with the defendant The Stop & Shop Supermarket Company, LLC. Following treatment, Scott Organ, a physician, issued a 5 percent permanent partial disability rating as to the plaintiff's right upper extremity by report dated March 17, 2006. By voluntary agreement of the parties, dated September 5, 2006, the plaintiff was paid a 5 percent permanent partial disability of the right shoulder with a maximum medical improvement date of September 5, 2006. No permanency rating was ever issued as to the plaintiff's left hip. A formal hearing took place before Commissioner Ernie R. Walker on June 3, 2008. The issues addressed at the hearing included the plaintiff's claim for wage differential benefits pursuant to General Statutes § 31-308a and her claim for additional medical treatment pursuant to General Statutes (Rev. to 2003) § 31-294d. On June 4, 2008, Commissioner Walker issued a decision (2008 commissioner's decision) in which he granted the plaintiff's request for § 31-308a benefits but denied her request for additional medical treatment pursuant to § 31-294d. Regarding the denial of additional medical treatment, the commissioner noted that he found credible the testimony of the plaintiff's treating physician, Organ, who testified at the hearing that it was his opinion that additional treatment would be palliative and not curative. On June 18, 2008, the plaintiff filed a motion to correct the 2008 commissioner's decision, which was denied on June 19, 2008. On June 27, 2008, the plaintiff filed a petition for review of the 2008 commissioner's decision denying her request for additional medical treatment. The petition for review was heard before the board on December 12, 2008. On June 5, 2009, the board affirmed the 2008 commissioner's decision, finding no error. Specifically, the board concluded, inter alia, that "the medical opinions in the . record provide ample support for the determination by the . commissioner that a pain management regimen would be palliative rather than curative and, thus, would not constitute reasonable or necessary treatment." The plaintiff did not appeal the June 5, 2009 decision of the board (2009 board decision). On April 18, 2011, the plaintiff requested approval from the Workers' Compensation Commission (commission) for surgery on her right shoulder. The request initially was denied. The plaintiff then underwent surgery on her right shoulder on September 17, 2014, for which she received total incapacity benefits pursuant to § 31-307, with an offset for social security benefits, as required by subsection (e) of that statute. Formal hearings took place before Commissioner Delaney on April 27, May 8, and June 16, 2015, to address the plaintiff's claim that she was entitled to compensation without a social security offset, and that the 2008 commissioner's decision and the 2009 board decision were incorrect. Specifically, the plaintiff "assert[ed] that delays in her requested medical treatment [had] caused her to be subject to the social security offset and, as a result of these delays, [the commissioner] may order [the defendant] to pay temporary total [disability] benefits at the full rate without regard to the [§] 31-307 (e) offset." On September 28, 2015, Commissioner Delaney dismissed the plaintiff's claim, having found that the plaintiff had failed to sustain her burden of proof that she was entitled to benefits without the offset. In his finding and dismissal (2015 commissioner's decision), the commissioner noted that from August, 2008, to May, 2013, approximately fifteen hearings took place regarding medical treatment and benefits, and the plaintiff was represented by counsel during these proceedings. Commissioner Delaney also noted that "[t]he . commission authorized various physicians to treat/evaluate the [plaintiff] through this time period." On the basis of these findings, the commissioner rejected the plaintiff's equitable claim that, due to alleged negligence and errors in the handling of her case, her case was delayed and, thus, she was entitled to temporary total disability benefits without the social security offset. On October 13, 2015, the plaintiff filed a petition for review of the 2015 commissioner's decision denying her request for benefits without the social security offset. On November 23, 2015, the plaintiff filed a motion to correct, which was denied on December 3, 2015. The petition for review was heard before the board on April 29, 2016. On August 8, 2016, the board affirmed the 2015 commissioner's decision and rejected the plaintiff's equitable argument that a waiver of the offset should be granted (2016 board decision). The board noted that the commissioner had no authority to waive the offset. The board also noted that, "even if this tribunal could consider this case on the merits, we would find that many of the arguments raised by the [plaintiff] on appeal go to factual issues which an appellate panel such as ours cannot retry . Moreover, many of the issues [the plaintiff] has raised go to the handling of her claim during the period prior to June 4, 2008, when Commissioner Walker issued a finding that the [plaintiff] subsequently appealed. We affirmed that [2008 commissioner's] decision. The [plaintiff] did not appeal our decision to the Appellate Court. We must now treat [the 2009 board] decision as final and as being the law of the case ." (Citation omitted; internal quotation marks omitted.) This appeal followed. We begin by setting forth our standard of review. "The principles that govern our standard of review in workers' compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.... [Moreover, it] is well established that [a]lthough not dispositive, we accord great weight to the construction given to the workers' compensation statutes by the commissioner and [the] board. . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Balloli v. New Haven Police Dept. , 324 Conn. 14, 17-18, 151 A.3d 367 (2016). I The plaintiff first claims that the board erred in not addressing past incorrect evidence and not finding her new evidence credible. Specifically, the plaintiff argues that "new (facts) evidence in the record . establishes that the negligent and careless handling of her case since 2005 is the main factor in the years of waiting for her medical treatments and her return to full employment. The . [b]oard erred by failing to acknowledge the new (facts) evidence that [the] plaintiff has submitted." The plaintiff further claims that the board erred in not addressing Commissioner Delaney's statement about delayed medical treatment. We disagree. Because the plaintiff's claims relate to factual findings by the commissioner, we begin our analysis by reiterating that "[a]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts." (Internal quotation marks omitted.) Pasquariello v. Stop & Shop Cos. , 281 Conn. 656, 663, 916 A.2d 803 (2007). "Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it." (Internal quotation marks omitted.) Rodriguez v. E.D. Construction, Inc. , 126 Conn. App. 717, 726, 12 A.3d 603, cert. denied, 301 Conn. 904, 17 A.3d 1046 (2011). As to the plaintiff's argument regarding "past incorrect evidence" and "new evidence," the board properly refused to address it in the 2016 board decision. The evidence that the plaintiff references pertains to factual findings and issues related to the 2008 commissioner's decision. As the board noted in its decision, "many of the arguments raised by the [plaintiff] on appeal go to factual issues which an appellate panel such as ours cannot retry ." It is well established that "[n]either the . board nor this court has the power to retry facts.... [O]n review of the commissioner's findings, the [board] does not retry the facts nor hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether or not the finding should be corrected, or whether there was any evidence to support in law the conclusions reached." (Internal quotation marks omitted.) Hummel v. Marten Transport, Ltd. , 114 Conn. App. 822, 842-43, 970 A.2d 834, cert. denied, 293 Conn. 907, 978 A.2d 1109 (2009). The board properly determined that it did not have the authority to "correct" findings from the 2008 commissioner's decision-a decision that had become final when the plaintiff did not appeal the 2009 board decision affirming the 2008 commissioner's decision-as the plaintiff requested that it do. Accordingly, we cannot conclude that the board erred in refusing to address the plaintiff's new evidence. As to the plaintiff's claim regarding the commissioner's alleged statement about delayed medical care, our review of the transcript demonstrates that the plaintiff quotes Commissioner Delaney out of context. The plaintiff argues that the "commissioner himself acknowledges [that the] plaintiff's medical treatment was delayed." Contrary to her position, Commissioner Delaney was simply paraphrasing what the plaintiff might include in the proposed findings that she was required to draft. Commissioner Delaney stated during the April 27, 2015 hearing: "Okay, I'm going to give you an opportunity to give me what we call [p]roposed [f]indings, and you can ask . my paralegal [about the format] . [Y]ou want me to take your evidence in the best light for you and [tell me] why I should find a, what's the word, I don't want to use the word because you don't like it, you don't like the word exception . [So], why [§ 31-307 (e) ] is not applicable to you . delay of medical treatment . Somebody delayed your medical treatment and the system. I'm not going to ask you to write a [b]rief unless you'd like to ." The plaintiff then stated that she would talk to the commissioner's paralegal about how to format the proposed findings. Commissioner Delaney, however, neither found nor opined that the plaintiff's treatment was delayed. Accordingly, we cannot conclude that the board erred by not acknowledging such a statement in its 2016 decision. On the basis of the foregoing, we conclude that the board did not err by refusing to address the plaintiff's attempt to correct "past incorrect evidence" and introduce "new evidence" to prove that delays beyond her control made her subject to the offset. II The plaintiff next claims that the board erred in affirming the commissioner's denial of her request for financial compensation without the social security offset. Specifically, the plaintiff argues that she should have been awarded benefits without the social security offset set forth in § 31-307 (e) because errors and delays by the commissioner in 2008 and the board in 2009 resulted in a delay in obtaining compensation, which made her subject to the offset. The plaintiff essentially argues that, if not for the negligence of the commissioner and the board, she would have received her compensation benefits before she started receiving social security, and she, therefore, would not have been subject to the offset. The plaintiff further argues that the board erred in stating that she requested a waiver of the offset. We disagree. Section 31-307 (e) provides: "Notwithstanding any provision of the general statutes to the contrary, compensation paid to an employee for an employee's total incapacity shall be reduced while the employee is entitled to receive old age insurance benefits pursuant to the federal Social Security Act. The amount of each reduced workers' compensation payment shall equal the excess, if any, of the workers' compensation payment over the old age insurance benefits." In 2006, the legislature, through "Public Acts 2006, No. 06-84, removed subsection (e) from § 31-307." Hummel v. Marten Transport, Ltd. , supra, 114 Conn. App. at 826 n.2, 970 A.2d 834. Although the offset was repealed, "[w]e look to the statute in effect at the date of injury to determine the rights and obligations between the parties." Id. Because the offset was in effect on August 8, 2003, the date of injury, the offset applies to the plaintiff's claim. On appeal, the plaintiff does not contest that her age makes her subject to the social security offset. She also does not argue that the repeal of the offset applies retroactively. In fact, in her reply brief, the plaintiff clarifies that she "is not asking this court to ignore [§] 31-307 (e) and waive it. [She] did not request [that] the . board . waive . the offset." Instead, the plaintiff argues that negligence in the handling of her case resulted in delays in treatment that made her subject to the offset, and that, as a result, she is entitled to financial compensation without the offset because it is not her fault that she is subject to the offset. Despite the plaintiff's argument to the contrary, her request for benefits without the offset is the functional equivalent of requesting a waiver of the offset. Accordingly, we reject her argument that the board erred in stating that she was requesting a waiver of the offset because she did, in effect, request a waiver even if that was not the exact language that she used. As to her argument in favor of a waiver, a significant portion of the plaintiff's appellate briefs are dedicated to her claim that, due to the alleged negligence and carelessness of the commissioner in 2008 and the board in 2009, she is entitled to a waiver of the offset. To the extent that the plaintiff argues that her new evidence established negligence on the part of the commission that entitled her to a waiver of the offset, we reject that argument. As we previously concluded in this opinion, the board properly refused to address the plaintiff's new evidence in its 2016 decision. See part I of this opinion. More importantly, the plaintiff has provided no authority, and we have found none, that permits the commissioner to waive the statutorily required social security offset. "The powers and duties of workers' compensation commissioners are conferred upon them for the purposes of carrying out the stated provisions of the Workers' Compensation Act.... It is well settled that the commissioner's jurisdiction is confined by the . act and limited by its provisions." (Internal quotation marks omitted.) Frantzen v. Davenport Electric , 179 Conn. App. 846, 851, 181 A.3d 578, cert. denied, 328 Conn. 928, 182 A.3d 637 (2018). The plaintiff essentially concedes that nothing gives the commissioner the authority to waive the offset for her requested reasons, by stating in her principal brief that "[t]his appeal must set a precedent for the negligence and carelessness in the mishandling of [the] plaintiff's case." She further states in her reply brief to this court that she "is not suggesting that the commissioner has the power to order an employer to compensate a [plaintiff] for errors made by the commission." On the basis of the foregoing, the plaintiff's claim must fail. Because both the commissioner and the board properly determined that there was no authority for the commissioner to waive the offset, we cannot say the board erred in denying the plaintiff's request for financial compensation without the offset. The decision of the Compensation Review Board is affirmed. In this opinion the other judges concurred. The plaintiff appeals from the decision of the board, dated August 8, 2016, which affirmed the decision of Commissioner Stephen B. Delaney, dated September 28, 2015. Also related to this appeal is a decision of the board, dated June 5, 2009, which affirmed a decision of Commissioner Ernie R. Walker, dated June 4, 2008. For clarity, in this opinion, we refer to the commissioners by name, and to the decisions of the commissioners and the board by date. The plaintiff also claims on appeal that the court erred by not finding negligence and carelessness in the commissioner's and the board's handling of her case. The plaintiff argues that the commissioner and the board failed to adhere to the Code of Ethics for Workers' Compensation Commissioners. The plaintiff, however, has not commenced an action against the commissioner and the board, and they are not parties to this case. Accordingly, we decline to address the argument as a separate claim. To the extent that this claim of negligence necessarily is intertwined with the plaintiff's argument that the board erred in denying her requested financial compensation, we address it in greater detail in part II of this opinion. General Statutes (Rev. to 2003) § 31-307 (e) provides: "Notwithstanding any provision of the general statutes to the contrary, compensation paid to an employee for an employee's total incapacity shall be reduced while the employee is entitled to receive old age insurance benefits pursuant to the federal Social Security Act. The amount of each reduced workers' compensation payment shall equal the excess, if any, of the workers' compensation payment over the old age insurance benefits." All references to § 31-307 (e) herein, unless otherwise stated, refer to the 2003 revision of the statute. MAC Risk Management, Inc., and the Second Injury Fund are also defendants in this action. For convenience, we refer in this opinion to The Stop & Shop Supermarket Company, LLC, as the defendant. "Compensation for loss of earning power takes the form of partial or total incapacity benefits.... Incapacity . means incapacity to work . Partial incapacity benefits are available when the employee is able to perform some employment, but [is] unable fully to perform his or her customary work . The duration of partial incapacity benefits is limited by statute.... Conversely . [t]otal incapacity benefits, unlike partial incapacity benefits, are unrestricted as to duration." (Citations omitted; internal quotation marks omitted.) Starks v. University of Connecticut , 270 Conn. 1, 9, 850 A.2d 1013 (2004). General Statutes § 31-308a provides in relevant part: "(a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability . "(b) Notwithstanding the provisions of subsection (a) of this section, additional benefits provided under this section shall be available only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation." General Statutes (Rev. to 2003) § 31-294d (a) (1) provides in relevant part that "[t]he employer, as soon as the employer has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish any medical and surgical aid or hospital and nursing service, including medical rehabilitation services and prescription drugs, as the physician or surgeon deems reasonable or necessary." Hereinafter, unless otherwise indicated, all references to § 31-294d in this opinion are to the 2003 revision of the statute. As the board noted in its decision: "[W]hether or not medical care satisfies the reasonable and necessary standard of § 31-294d is a factual issue to be decided by the . commissioner . Reasonable or necessary medical care is that which is curative or remedial. Curative or remedial care is that which seeks to repair the damage to health caused by the job even if not enough health is restored to enable the employee to return to work." (Citations omitted; internal quotation marks omitted.) During the proceedings before the commissioner and the board from 2003 to 2013, the plaintiff was represented by counsel. Thereafter, she became self-represented. Commissioner Delaney took administrative notice of the plaintiff's file with the commission, the 2008 commissioner's decision, and the 2009 board decision. The defendant asserts that the plaintiff has included documents in her appendix on appeal that are not part of the administrative record. It claims that the plaintiff's "[a]ppendix contents starting on pages A14, A17, A18, A19, A20, A29, A66, A72, A73, A107, and A110 were not included in the record below. Only pages 7, 18 and 24 of the [d]eposition of Scott Organ, M.D., were included in the record below; the entire deposition is included in the [plaintiff's] [a]ppendix." Having confirmed that these portions of the appendix were not included in the administrative record and, therefore, are not properly before us, we do not consider them. To support her claim that the board should have addressed her new evidence, which she argues demonstrates negligence on the part of the commissioner and the board, the plaintiff cites to cases in which the commission was a party to the action. See, e.g., Gyadu v. Workers' Compensation Commission , 930 F.Supp. 738 (D. Conn. 1996), aff'd, Docket Nos. 96-7950, 96-9616, 1997 WL 716128, *1-2 (2d Cir. November 17, 1997) (decision without published opinion, 129 F.3d 113 [2d Cir. 1997] ), cert. denied, 525 U.S. 814, 119 S.Ct. 49, 142 L.Ed.2d 38 (1998) ; see also Warren v. Mississippi Workers' Compensation Commission , 700 So.2d 608, 609, 615 (Miss. 1997) (plaintiffs failed to show deprivation of due process rights due to delays in workers' compensation system). We reiterate that the present action is not against the commission. See footnote 2 of this opinion. The plaintiff also states in her principal brief that she provides new evidence in this appeal that demonstrates that, since 2005, neither the board nor the commissioner has handled her case properly. It is not our function to engage in fact-finding. See McTiernan v. McTiernan , 164 Conn. App. 805, 830, 138 A.3d 935 (2016) ("[I]t is axiomatic that this appellate body does not engage in fact-finding. Connecticut's appellate courts cannot find facts ." [Internal quotation marks omitted.] ). We are bound by the record before us, which does not contain the facts that the plaintiff attempts to introduce on appeal. To the extent that there is material before us that was not included in the record, we decline to review it. See footnote 11 of this opinion.

12503382

STATE of Connecticut v. Nicholas J. PAPANTONIOU

State v. Papantoniou

2018-09-25

AC 40554

839

856

196 A.3d 839

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

STATE of Connecticut v. Nicholas J. PAPANTONIOU

STATE of Connecticut v. Nicholas J. PAPANTONIOU AC 40554 Appellate Court of Connecticut. Argued April 10, 2018 Officially released September 25, 2018 Lisa J. Steele, assigned counsel, for the appellant (defendant). Robert J. Scheinblum, senior assistant state's attorney, with whom were Stacey M. Miranda, senior assistant state's attorney, and, on the brief, Patrick J. Griffin, state's attorney, and Karen A. Roberg, assistant state's attorney, for the appellee (state). Lavine, Elgo and Bright, Js.

8303

51139

LAVINE, J. The defendant, Nicholas J. Papantoniou, appeals from the judgment of conviction, rendered following a jury trial, of felony murder in violation of General Statutes § 53a-54c, burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). On appeal, the defendant claims that the state (1) violated his rights to be present at trial and to confront the witnesses against him under article first, § 8, of the Connecticut constitution when the prosecutor made a "generic tailoring" argument during closing remarks, and (2) violated his constitutional rights to due process and a fair trial by committing prosecutorial improprieties. 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. At approximately 12:30 p.m. on October 19, 2014, William Coutermash drove to 397 Circular Avenue in Hamden; the defendant accompanied him. Larry Dildy, the victim, lived in the second floor apartment of a multifamily house located at 397 Circular Avenue with his wife, Vivian Dildy (Vivian), and their daughter, Ashante Dildy (Ashante). The victim was a known drug dealer, and according to Coutermash, he and the defendant went to the victim's apartment with the intent to rob him. More specifically, Coutermash said the plan was to "flash a gun in the [victim's] face" in an attempt to "get either drugs or money" from him. When Coutermash and the defendant arrived, Coutermash parked his vehicle-a black Jeep with New York license plates-near the victim's driveway and handed the defendant gloves and a handgun. According to Coutermash, the defendant then exited the vehicle "to get drugs or money" and also was armed with a knife. The defendant, who was wearing a gray sweatshirt, a tan hat, and sunglasses, then proceeded to the back door of the victim's apartment. Coutermash testified that he stayed in his Jeep. Vivian was home at the time, and according to her, one "intruder" entered the apartment through the apartment's locked back door after the force of his knocking opened it. She described the intruder as wearing a grey "sweat jacket" and a yellow or beige hat. Shortly thereafter, Vivian saw the lone intruder pointing a gun at the victim, heard him say something that "sounded like give it up," and called 911 at her husband's request. Ashante, who was hiding in her room when the intruder entered the apartment, also heard a single, "raspy" male voice say that "he needed the $400 and the pill," and over-heard her father respond that "[he] didn't have it." After the victim and the intruder argued for a period of time, a physical fight ensued, and the two men struggled over the intruder's gun. During the struggle, the victim pulled off the intruder's sweatshirt, and Vivian struck the intruder over the head with a broom handle before she ran to a separate room. Vivian then heard two gunshots, and the intruder quickly fled the apartment. Minutes after the defendant had exited the Jeep, Coutermash observed emergency personnel arriving and decided to drive away from the area. As he did so, he encountered the defendant on a nearby street, picked him up, and the two left the scene. The victim had been shot, cut, and stabbed multiple times during the altercation; he was taken to a hospital and died from his injuries. During the ensuing police investigation, investigators recovered various items located on the floor near the victim's body, including a grey hooded sweatshirt, a tan hat, sunglasses, and a knife. Subsequent scientific testing revealed that DNA evidence taken from the grey sweatshirt matched the defendant's DNA profile, which was contained in a national database of DNA. That same testing eliminated Coutermash as a source of the DNA found on the grey sweatshirt. Scientific testing of the tan hat also revealed the presence of both the defendant's and the victim's DNA. Finally, surveillance cameras near the victim's apartment captured the defendant discarding gloves and a handgun shortly after the shooting. By way of an amended long form information, the state charged the defendant with felony murder, burglary in the first degree, and criminal possession of a firearm. Following the jury's verdict of guilty on all counts, the trial court rendered judgment and sentenced the defendant to a term of imprisonment of forty-five years on the felony murder conviction, a concurrent sentence of twenty years imprisonment on the burglary conviction, and a concurrent sentence of ten years imprisonment on the criminal possession of a firearm conviction, for a total effective sentence of forty-five years imprisonment. This appeal followed. Additional facts and procedural history will be set forth as necessary. I We first address the defendant's claim that the state violated his rights to be present at trial and to confront the witnesses against him. He argues that the state violated these specific constitutional rights when the prosecutor made a "generic tailoring" argument during closing remarks to the jury. He concedes that the state is permitted to make such an argument under the federal constitution, but according to him, the state may not do so in accordance with article first, § 8, of the Connecticut constitution. He did not assert this claim at trial and therefore raises it under the familiar rubric of State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015). In response, the state contends that the defendant's unpreserved constitutional claim fails to satisfy both the third and fourth prongs of Golding . Because we conclude that the alleged constitutional violation, if any, was harmless beyond a reasonable doubt, we agree that the defendant's claim fails to satisfy Golding 's fourth prong. The following additional facts and procedural history are relevant to this claim. The defendant testified at trial and was the final witness called by the defense. His testimony, in certain respects, conflicted with Coutermash's testimony. According to Coutermash, the victim did not owe him money, and he remained in his Jeep when the defendant went to the victim's apartment. The defendant testified that, on October 19, 2014, Coutermash told him that he needed to "collect some money" from someone. See footnote 3 of this opinion. In contrast to Coutermash, the defendant claimed that when he and Coutermash arrived at 397 Circular Avenue, both of them entered the victim's apartment, and Coutermash demanded $400 from the victim. The defendant testified that he entered the victim's apartment only after Coutermash and the victim began fighting and when things were "getting out of control ." Upon entering the apartment, the defendant told the victim: "[L]isten, just give [Coutermash] his money-you know-let me get the hell out of here, just give him what you owe him, it's gone far enough, it's out of control, just give him his money, you know." The defendant further testified that, immediately after he told the victim to give Coutermash money, Coutermash fled the apartment. At that point, the defendant claimed that the victim charged at him, the two began to struggle over the gun in his hand, and the gun "went off" twice during the struggle. During closing argument, counsel for the defendant began by stating that "this case . comes down to two witnesses, really, [the defendant] and [Coutermash]. They told two divergent stories, and the state told you that they're relying on . Coutermash." Counsel for the defendant also argued in relevant part: "Now, we talked a little about this a little while ago, that is, that the state goes second. I have to do my best to anticipate their arguments. The state is very creative; I'm sure I will not think of everything they're going to think of. So, here's some food for thought. They may argue that [the defendant] is trying to save himself by concocting this story. My response to that is, refer back to the undisputed evidence. Which version is a concoction, and which one is closer to reality, based on the evidence?" The prosecutor then opened her rebuttal argument by stating in relevant part: "So, the defendant wants you to believe-or disbelieve every single thing you heard, except the defendant. Disbelieve all of it, and certainly ignore the actual eyewitness to this because her version doesn't fit what we're trying to do here. Her version doesn't fit what we're trying to tell you. "Keep in mind, the defendant has had access to all of the evidence, all of the testimony, all of the photographs, every single piece of information that was presented to you, [and ] the defendant was able to sit there and listen to and come up with his version . "The defense attorney asked all of you on voir dire, and he just asked you again, whether you believe that someone can lie to gain a benefit. Do you? You all said yes. Who has the biggest benefit to gain here at this moment? Don't you find it very convenient that the defendant's story is that he was just a mere bystander in all of this? He was forced to come up by [Coutermash], his friend, who just wanted him to have his back, so he did.... "He attempts to create a story that fits all of the evidence, and his attempts at that you can't deny is flawed. He gets an A for effort, but it's not going to work because the evidence shows you that this version makes zero sense." (Emphasis added.) The defendant contends that the prosecutor's remarks during rebuttal amounted to a "generic tailoring" argument that violated his state constitutional rights. He seeks review of his unpreserved state constitutional claim under State v. Golding , supra, 213 Conn. at 233, 567 A.2d 823. "[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." (Emphasis in original; footnote omitted.) Id., at 239-40, 567 A.2d 823. Even if we assume, without deciding, that the defendant could meet the factors set forth in State v. Geisler , 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), to demonstrate that the alleged constitutional violation occurred; see footnote 13 of this opinion; we nevertheless conclude that the state has proved that the alleged constitutional violation was harmless beyond a reasonable doubt. "[T]here may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the [f]ederal [and state] [c]onstitution[s], be deemed harmless, not requiring the automatic reversal of the conviction.... The state has the burden to prove that this error was harmless beyond a reasonable doubt.... The focus of our harmless error inquiry is whether the state has demonstrated that the otherwise improper comments did not influence the outcome of the trial." (Citations omitted; internal quotation marks omitted.) State v. A.M. , 324 Conn. 190, 204, 152 A.3d 49 (2016) ; see also State v. Cassidy , 236 Conn. 112, 129, 672 A.2d 899 (impermissible "generic tailoring" argument subject to harmless error), cert. denied, 519 U.S. 910, 117 S.Ct. 273, 136 L.Ed.2d 196 (1996), overruled in part on other grounds by State v. Alexander , 254 Conn. 290, 299-300, 755 A.2d 868 (2000). The state argues that the alleged violation was harmless because the "overwhelming evidence of guilt [demonstrates] there is no reasonable doubt that the jury would have convicted the defendant of all three offenses-felony murder, burglary, and criminal possession of a firearm-with or without the prosecution's [generic] tailoring argument during rebuttal." We agree that the strength of the state's case against the defendant, standing alone, renders the alleged error harmless beyond a reasonable doubt. Having thoroughly reviewed the record, we do not believe that the prosecutor's alleged "generic tailoring" argument had any discernible effect on the outcome of the trial. The state presented an overwhelming case against the defendant. The DNA evidence and testimony from both Coutermash and the defendant demonstrate that the defendant was involved in the victim's death. In fact, the defendant concedes on appeal that "[t]he evidence supports a conclusion that [he] was in the apartment and held the pistol while struggling with [the victim] when it fired twice." According to Coutermash, on October 19, 2014, the two men intended to rob the victim of either drugs or money by flashing a gun in his face. The defendant also testified that he "was looking to get a few bucks" when he traveled with Coutermash to the victim's apartment. See footnote 3 of this opinion. The defendant's testimony regarding what occurred on October 19, 2014, differed from Coutermash's account, as the defendant said that both he and Coutermash entered the victim's apartment. Nevertheless, the defendant testified that he told the victim to "just give [Coutermash] his money . just give him what you owe him ." after the defendant had entered the victim's apartment with a gun in his hand. Under either version of events-the defendant's or Coutermash's-the jury reasonably could have concluded that the defendant entered the victim's apartment with the intent to commit a forceful taking; see General Statutes § 53a-133 ; and that the victim was shot during the ensuing struggle. Additionally, Vivian and Ashante both testified that a lone intruder demanded money and pills from the victim before struggling with and shooting him. According to Vivian, the intruder wore a grey "sweat jacket" and a yellow or beige hat. DNA evidence found on the grey sweatshirt and tan hat found next to the victim's body directly connected the defendant to the shooting, and he even testified at trial that the gun discharged while he struggled with the victim. Vivian also testified that the lone intruder entered through the locked back door after he forcefully banged on it, and that she heard him say something that "sounded like give it up," and attacked him with a broom handle and called 911. All of this is compelling evidence that the defendant was armed with a gun when he unlawfully entered the victim's apartment with the intent to rob the victim and that the victim died as a result of the incident. The state therefore presented a very strong case against the defendant. See footnote 16 of this opinion. Moreover, Vivian and Ashante corroborated Coutermash's testimony that the defendant entered the victim's apartment alone with the intent to take either drugs or money from the victim at gunpoint. Cf. State v. Cassidy , supra, 236 Conn. at 131, 672 A.2d 899 (state failed to prove that improper remarks were harmless because, inter alia, "the state's case rested entirely upon the uncorroborated testimony of the victim"); State v. Carter , 47 Conn. App. 632, 648, 708 A.2d 213 (even assuming that prosecutor's remarks were improper under Cassidy , they were harmless beyond reasonable doubt because "the state's case did not rest entirely on the uncorroborated testimony of a single victim"), cert. denied, 244 Conn. 909, 713 A.2d 828 (1998). Even if we assume solely for the sake of argument that the prosecutor's remarks during rebuttal violated the defendant's rights under article first, § 8, of the Connecticut constitution, we do not believe that they influenced the outcome of the trial. The state has proved that the error, if any, was harmless beyond a reasonable doubt. Accordingly, the defendant's claim fails under the fourth prong of Golding . II The defendant's second claim is that the state violated his rights to due process and a fair trial when the prosecutor committed three separate improprieties during her closing remarks to the jury. He argues that the prosecutor asserted facts not in evidence, misstated the evidence that was actually introduced, and improperly undermined his credibility. He contends that his credibility was "the central issue in this case," and that such improprieties were harmful because they undermined his credibility and suggested that he possessed a guilty conscience. The state, on the other hand, argues that the arguments by the prosecutor were not improper and, even if they were improper, they did not deprive the defendant of his rights to due process and a fair trial. We conclude that, even if we were to assume, without deciding, that the challenged comments were improper, the defendant failed to prove that they deprived him of his rights to due process and a fair trial. The following additional procedural history is relevant to this claim. During the state's rebuttal argument, the prosecutor made three sets of comments that the defendant claims amounted to prosecutorial impropriety. The first set of comments relates to the prosecutor's characterization of the testimony from Douglas Fox, a firearms expert who testified on behalf of the state, and how the defendant must have chambered two rounds in the gun in his possession before intentionally pulling the trigger. During her rebuttal, the prosecutor argued in relevant part: "[Fox] . explained to you how [the handgun used to shoot the victim] works, which is extremely important. You will determine that his testimony is important because he told you that firing that weapon takes a purposeful, physical action to make that weapon able to be fired. If you recall, he showed you that weapon, he showed you that you have to pull that slide back. That doesn't happen by accident. Those are not accidental movements, and it's certainly not accidental twice ." (Emphasis added.) She also argued: "[While the victim] is attacking [the defendant] . and struggling, struggling, struggling, and by accident the gun goes off-twice. [The defendant claims he] [d]idn't pull the trigger intentionally, certainly didn't pull the slide back intentionally, all accidental. Ask yourselves, ladies and gentlemen, does this story make any sense whatsoever?" The second set of comments relates to the prosecutor's characterization of the defendant's conduct immediately after the victim was shot. During her rebuttal, the prosecutor argued in relevant part: "[The defendant claimed] he was so concerned about all of the injuries, on how bad [the victim] was hurt, and the blood and he felt horrible. What did he do as soon as he left? Did he call 911-this is an accident, according to him. Did he call 911 and get him help? Do you recall what he said? He called his lawyer ." (Emphasis added.) The third and final set of comments are those previously set forth in part I of this opinion concerning the defendant's presence at trial and his corresponding opportunity to generally tailor his testimony. We now set forth the relevant legal principles governing our review. It is often said that " '[w]hile [the prosecutor] may strike hard blows, [s]he is not at liberty to strike foul ones. It is as much [her] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.' " State v. Rowe , 279 Conn. 139, 159, 900 A.2d 1276 (2006), quoting Berger v. United States , 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Although the defendant did not object to the remarks he challenges on appeal, we still review his claims because "a defendant who fails to preserve claims of prosecutorial [impropriety] need not seek to prevail under the specific requirements of [ Golding ], and, similarly, it is unnecessary for a reviewing court to apply the four-pronged Golding test.... "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. Whether that impropriety was harmful and thus caused or contributed to a due process violation involves a separate and distinct inquiry.... "[O]ur determination of 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 whether that [impropriety] was objected to at trial.... These factors include: [1] the extent to which the [impropriety] was invited by defense conduct or argument . [2] the severity of the [impropriety] . [3] the frequency of the [impropriety] . [4] the centrality of the [impropriety] to the critical issues in the case . [5] the strength of the curative measures adopted . [6] and the strength of the state's case." (Citations omitted; internal quotation marks omitted.) State v. Payne , supra, 303 Conn. at 560-61, 34 A.3d 370. "The question of whether the defendant has been prejudiced by prosecutorial [impropriety] . depends on whether there is a reasonable likelihood that the jury's verdict would have been different absent the sum total of the improprieties." (Internal quotation marks omitted.) State v. Ross , 151 Conn. App. 687, 700, 95 A.3d 1208, cert. denied, 314 Conn. 926, 101 A.3d 272, 272 (2014). "Under the Williams general due process standard, the defendant has the burden to show both that the prosecutor's conduct was improper and that it caused prejudice to his defense." State v. A.M. , supra, 324 Conn. at 199, 152 A.3d 49. "The two steps of [our] analysis are separate and distinct, and we may reject the claim if we conclude that the defendant has failed to establish either prong." State v. Danovan T. , 176 Conn. App. 637, 644, 170 A.3d 722 (2017), cert. denied, 327 Conn. 992, 175 A.3d 1247 (2018) ; see also State v. Aviles , 154 Conn. App. 470, 486, 106 A.3d 309 (2014) ("[b]ecause we assume, without deciding, that the challenged comments were improper, we move directly to the second step of the analysis and address whether the prosecutor's remarks were harmful"), cert. denied, 316 Conn. 903, 111 A.3d 471 (2015). The defendant claims that each of the three separate sets of comments by the prosecutor deprived him of his rights to due process and a fair trial. With respect to the first set of remarks, the defendant argues that the prosecutor improperly suggested that the firearm in his possession could not have fired accidentally twice during his struggle with the victim. According to the defendant, the prosecutor improperly "implie[d] that the defendant had to pull the slide [of the gun] back before each shot, and had to pull the trigger intentionally twice." As to the second set of remarks, the defendant contends that the state improperly argued that, instead of calling 911 immediately after the shooting, he chose to call his lawyer. His argument for this set of remarks is twofold. First, he maintains that the state "implie[d] that [he] had the means to call 911 at or shortly after leaving [the victim's] house, a fact not in evidence," and second, that "[i]t also implie[d] that [he] called his lawyer as soon as he left." According to him, the state's remarks "both misstated the evidence and implied that only guilty people call their lawyers." Finally, as an alternative to his claim presented in part I of this opinion, the defendant reframes the prosecutor's "generic tailoring" remarks as a general prosecutorial impropriety claim. Even if we assume, without deciding, that these remarks were improper, on the basis of our evaluation of the Williams factors, we conclude that the defendant has failed to prove that he was deprived of his rights to due process and a fair trial. A First and Second Sets of Remarks With respect to the first and second set of remarks, we initially note that trial counsel for the defendant did not invite either set of remarks by the prosecutor. The first Williams factor therefore favors the defendant. At the same time, however, the remarks were not severe enough to influence the jury improperly. Defense counsel did not object to either set of remarks at trial, and "it [is] highly significant that defense counsel failed to object to any of the improper remarks, request curative instructions, or move for a mistrial." State v. Thompson , 266 Conn. 440, 479, 832 A.2d 626 (2003) ; see also State v. Payne , supra, 303 Conn. at 568, 34 A.3d 370 ("[w]hen no objection is raised at trial, we infer that defense counsel did not regard the remarks as 'seriously prejudicial' at the time the statements were made"). The second Williams factor favors the state. The allegedly improper remarks were also isolated. The prosecutor's remarks regarding the firearm occurred twice during a lengthy rebuttal argument. See, e.g., State v. Ross , supra, 151 Conn. App. at 701, 95 A.3d 1208 (frequency factor under Williams favored state where "the claimed improprieties were not pervasive throughout the trial, but were confined to, and constituted only a small portion of, closing and rebuttal argument"). As for the remarks on the defendant's call to his lawyer, the prosecutor, during cross-examination, asked a single, follow up question regarding the defendant's statement that he called his lawyer after he shot the victim; at the end of her closing, the prosecutor made a passing reference to that call. Cf. State v. Angel T. , 292 Conn. 262, 290-91, 973 A.2d 1207 (2009) (state improperly addressed defendant's decision to seek aid of counsel prior to arrest by eliciting evidence through two witnesses and "then discussed the evidence at length during both its opening and rebuttal summations"). Nor do we view any of these remarks as egregious under the circumstances. See State v. Thompson , supra, 266 Conn. at 480, 832 A.2d 626 ("[g]iven the defendant's failure to object, only instances of grossly egregious [impropriety] will be severe enough to mandate reversal"). The third Williams factor weighs in favor of the state. It is also significant that neither set of alleged improprieties went to critical issues in the case. Because the defendant was charged with felony murder, his intent to shoot or murder the victim was not at issue. See, e.g., State v. Johnson , 165 Conn. App. 255, 269-70, 138 A.3d 1108 (no requirement under felony murder statute that defendant intend to murder victim; state need only prove death in course of and furtherance of felony), cert. denied, 322 Conn. 904, 138 A.3d 933 (2016). The prosecutor's remarks about whether chambering a round in the defendant's handgun or firing it was "accidental" therefore did not go to a critical issue in the case. Nor did the state's case require that it prove that the defendant possessed a guilty conscience. See State v. Montoya , 110 Conn. App. 97, 109, 954 A.2d 193 (prosecutor's statements were not central to critical issue in case where subject of statements "was not an element of [the charged offense]"), cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008). Moreover, contrary to the defendant's claim on appeal, the state's case against the defendant did not hinge on a credibility contest between him and Coutermash. Cf. State v. Angel T. , supra, 292 Conn. at 290, 973 A.2d 1207 (state's case "turned largely" on credibility contest between defendant and victim "and the impropriety gave the clear impression that the defendant, who was not speaking to the police and had retained an attorney in connection with the investigation, had something to hide"). The fourth Williams factor favors the state. With respect to the fifth Williams factor, the defendant's failure to object at trial deprived the court of the opportunity to adopt tailored curative measures. See, e.g., State v. Ross , supra, 151 Conn. App. at 702, 95 A.3d 1208 ("by failing to bring [the claimed improprieties] to the attention of the trial court, [the defendant] bears much of the responsibility for the fact that these claimed improprieties went uncured" [internal quotation marks omitted] ). The court, nonetheless, did instruct the jury that arguments of counsel were not evidence. See State v. Montoya , supra, 110 Conn. App. at 110, 954 A.2d 193 ("[w]hen [any] impropriety is brief and isolated . the court's general instructions to the jury to decide the case on the facts before it and not on the arguments of counsel serve to minimize harm from impropriety"). The fifth Williams factor therefore weighs in favor of the state. Finally, the sixth Williams factor weighs heavily in favor of the state. The evidence of guilt was overwhelming. This factor, standing alone, is sufficient to demonstrate that the remarks of the prosecutor, even if we assume for the sake of analysis that they were improper, were not so serious as to deprive the defendant of his rights to due process and a fair trial. See, e.g., State v. Aviles , supra, 154 Conn. App. at 487-88, 106 A.3d 309 (strength of state's case against defendant can outweigh other Williams factors favoring defendant). Accordingly, we conclude that in the context of the entire trial, the defendant has failed to prove that the first and second sets of challenged remarks deprived him of his rights to due process and a fair trial. B "Generic Tailoring" Remarks As an alternative to his claim presented in part I of this opinion, the defendant reframes his challenge to the prosecutor's "generic tailoring" remarks as a claim that these remarks deprived him of his general due process right to a fair trial. See, e.g., State v. A.M. , supra, 324 Conn. at 198-99, 152 A.3d 49 ; State v. Payne , supra, 303 Conn. at 562-63, 34 A.3d 370. We initially note that defense counsel did not object to the prosecutor's purported "generic tailoring" remarks. See, e.g., State v. Payne , supra, at 568, 797 A.2d 1088 ; cf. State v. Cassidy , supra, 236 Conn. at 122, 132, 672 A.2d 899 (defendant moved for mistrial and requested curative instructions in response to prosecutor's generic tailoring argument). Additionally, in part I of this opinion, we discussed the strength of the state's case against the defendant. See State v. Payne , supra, 303 Conn. at 561, 34 A.3d 370 (sixth Williams factor is "the strength of the state's case" [internal quotation marks omitted] ). This factor, standing alone, demonstrates that the remarks of the prosecutor, even if we assume for the sake of analysis that they were improper, were not so serious as to deprive the defendant of his rights to due process and a fair trial. See, e.g., State v. Aviles , supra, 154 Conn. App. at 487-88, 106 A.3d 309. The other Williams factors also weigh in favor of the state. As to the first Williams factor, defense counsel stated during closing argument in relevant part: "I have to do my best to anticipate [the state's] arguments.... [The state ] may argue that [the defendant ] is trying to save himself by concocting this story . My response to that is, refer back to the undisputed evidence. Which version is a concoction, and which one is closer to reality, based on the evidence?" (Emphasis added.) Defense counsel's remarks, even if to a slight degree, invited the prosecutor to respond by arguing how the defendant might be "trying to save himself by concocting [his] story" to the jury. See, e.g., State v. Payne , supra, 303 Conn. at 567, 34 A.3d 370 (defense counsel's comments on defendant's credibility invited state's attack on defense counsel's ethics). The prosecutor's comments on the defendant's presence at trial-i.e., "to sit there and listen to and come up with his version [of events]"-were limited to two brief instances during her rebuttal and were not severe. Cf. State v. A.M. , supra, 324 Conn. at 206, 152 A.3d 49 (remarks by prosecutor were "particularly severe" because prosecutor violated General Statutes § 54-84 [a] by explicitly commenting on defendant's failure to testify). Additionally, the trial court instructed the jury that arguments of counsel were not evidence. See State v. Payne , supra, 303 Conn. at 567, 34 A.3d 370 ("the trial court cured any harm by instructing the jury that the arguments of counsel were not evidence on which the jurors could rely"); see also State v. Collins , 299 Conn. 567, 590, 10 A.3d 1005 ("[w]e presume the jury . followed [the court's instruction] in the absence of any indication to the contrary"), cert. denied, 565 U.S. 908, 132 S.Ct. 314, 181 L.Ed.2d 193 (2011). Thus, the second, third, and fifth Williams factors weigh in favor of the state. Finally, although the defendant's credibility was important to the jury's resolution of the case, the state's case did not hinge on a credibility contest between Coutermash and the defendant. Cf. State v. A.M. , supra, 324 Conn. at 211-13, 152 A.3d 49 (state's case against defendant, accusing him of committing various sexual assault and risk of injury to child offenses, rested entirely on victim's credibility; prosecutor's improper remarks bolstered victim's credibility and diminished defendant's credibility). Coutermash testified that both men went to the victim's home with the intent to rob him. See, e.g., State v. Pranckus , 75 Conn. App. 80, 87-88, 815 A.2d 678 ("[i]t is the [jury's] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses" [internal quotation marks omitted] ), cert. denied, 263 Conn. 905, 819 A.2d 840 (2003). At the same time, the defendant testified that he went to the victim's apartment "looking to get a few bucks" and, after entering the apartment with a gun in his hand, told the victim to "just give [Coutermash] his money ." According to Vivian and Ashante, a lone intruder entered their apartment and demanded that the victim hand over money and pills. Scientific testing revealed that the defendant's DNA was on both the grey sweatshirt and the tan hat recovered next to the victim's body. On the basis of the defendant's own testimony, the testimony from Vivian and Ashante, and the scientific evidence, the jury reasonably could have inferred-without regard to Coutermash's testimony-that the defendant unlawfully entered or remained in the victim's apartment with the intent to rob him. See, e.g., State v. Thompson , supra, 266 Conn. at 483, 832 A.2d 626 (fourth and fifth Williams factors weighed in favor of state because "[that case was] not a case that rested solely on the credibility of witnesses"); State v. Carter , supra, 47 Conn. App. at 648, 708 A.2d 213 (even if prosecutor's remarks were improper under Cassidy , they were harmless beyond reasonable doubt because, inter alia, defendant's credibility "was not critical due to the existence of independent evidence of the crime"). Accordingly, we conclude that in the context of the entire trial, the defendant has failed to prove that the challenged "generic tailoring" remarks deprived him of his rights to due process and a fair trial. The judgment is affirmed. In this opinion the other judges concurred. Article first, § 8, of the constitution of Connecticut, as amended by articles seventeen and twenty-nine of the amendments, provides in relevant part: "In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . [and] to be confronted by the witnesses against him . No person shall be compelled to give evidence against himself, nor be deprived of . liberty . without due process of law ." The state charged Coutermash with various crimes in connection with the victim's death. Prior to the defendant's trial, Coutermash pleaded guilty to accessory to manslaughter in the first degree and accessory to burglary in the first degree. He testified on behalf of the state pursuant to a cooperation agreement. During direct examination, the defendant testified that, on October 19, 2014, Coutermash told him to "[t]ake a ride with me; I gotta go collect some money" but that Coutermash did not say from whom he was going to be collecting money. On cross-examination, the defendant also testified that "[Coutermash] told me [that] he had to collect some money and if he got it he would throw me a few bucks," and agreed that he "was looking to get a few bucks" when he went to the victim's apartment. Coutermash denied going to the victim's apartment "to collect a $400 debt" and testified that the victim did not owe him money. James Samperi, Jr., a witness for the state who was familiar with the defendant, also testified that the defendant occasionally carried a knife. During direct examination, the defendant admitted to struggling with the victim over the gun in his possession and that the gun "went off" twice during the struggle. "DNA stands for deoxyribonucleic acid and comprises a person's inherited genetic material." State v. Aviles , 154 Conn. App. 470, 483 n.4, 106 A.3d 309 (2014), cert. denied, 316 Conn. 903, 111 A.3d 471 (2015). Investigators cross-referenced the DNA retrieved from the grey sweatshirt with DNA contained in the CODIS database, a national repository of DNA for convicted felons. See, e.g., State v. Webb , 128 Conn. App. 846, 852-83 n.3, 19 A.3d 678 (generally describing national CODIS database), cert. denied, 303 Conn. 907, 32 A.3d 961 (2011). Lana Ramos, an employee of the state forensics laboratory, testified that testing the evidence from the tan hat revealed a mixture of DNA in which the victim and the defendant "are included as contributors to the DNA profile [from the second swab of the tan hat]." According to Ramos, "[t]he expected frequency of individuals who could be a contributor to the DNA profile from [the second swab of the tan hat] is approximately 1 in 4.6 million in the African-American population; approximately 1 in 2.6 million in the Caucasian population; and approximately 1 in 3.8 million in the Hispanic population." At trial, both Samperi and Jason Marini, who also was familiar with the defendant and testified on behalf of the state, identified the defendant as the individual observed in the surveillance footage. During closing argument, trial counsel for the defendant conceded that the defendant was guilty of criminal possession of a firearm. "Generic tailoring arguments occur when the prosecution attacks the defendant's credibility by simply drawing the jury's attention to the defendant's presence at trial and his resultant opportunity to tailor his testimony." Martinez v. People , 244 P.3d 135, 141 (Colo. 2010). Our Supreme Court previously held that such arguments violated a defendant's sixth amendment rights under the federal constitution. See State v. Cassidy , 236 Conn. 112, 127-28, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S.Ct. 273, 136 L.Ed.2d 196 (1996), overruled in part by State v. Alexander , 254 Conn. 290, 299-300, 755 A.2d 868 (2000). Following the decision by the United States Supreme Court in Portuondo v. Agard , 529 U.S. 61, 67-69, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000), however, our Supreme Court reversed its holding in Cassidy . See State v. Alexander , 254 Conn. 290, 296, 755 A.2d 868 (2000). The defendant argues, in accordance with State v. Geisler , 222 Conn. 672, 610 A.2d 1225 (1992), that the Connecticut constitution provides greater protection than the federal constitution with respect to "generic tailoring" arguments. See id., at 684-86, 610 A.2d 1225 (setting forth six factors courts consider when determining whether state constitution provides greater protection than federal constitution). Both parties address this claim under the framework of Golding , so we follow their lead. We note, however, that a defendant generally does not need to satisfy the four-pronged Golding test to prevail on a prosecutorial impropriety claim. See State v. A.M. , 324 Conn. 190, 198 n.2, 152 A.3d 49 (2016) ; State v. Payne , 303 Conn. 538, 560, 34 A.3d 370 (2012). Where a defendant claims that prosecutorial impropriety infringed a specifically enumerated constitutional right, "the defendant initially has the burden to establish that a constitutional right was violated.... If the defendant establishes the violation, however, the burden shifts to the state to prove that the violation was harmless beyond a reasonable doubt." (Citation omitted.) State v. A.M. , supra, at 199, 152 A.3d 49. The test is the functional equivalent of applying Golding 's third and fourth prongs. We do not decide whether the defendant has demonstrated that a constitutional violation exists on this record. We assume, simply for the sake of argument, that the defendant met his burden and conclude that the state has demonstrated that the alleged violation was harmless beyond a reasonable doubt. Furthermore, because we assume, without deciding, that the state's alleged "generic tailoring" argument violated the defendant's rights under the state constitution, we do not address the Geisler factors. Additionally, we note that, on June 21, 2018, State v. Weatherspoon , AC 40651, was transferred to our Supreme Court. The defendant in Weatherspoon also raises the issue of whether article first, § 8, of the Connecticut constitution prohibits "generic tailoring" arguments. See State v. Weatherspoon , SC 20134. We limit our analysis to the state's argument that the overwhelming evidence of guilt renders the constitutional violation, if any, harmless beyond a reasonable doubt. In similar circumstances, after concluding that the prosecutor, during rebuttal, violated a defendant's rights under the fifth amendment to the federal constitution, our Supreme Court applied the factors set forth in State v. Williams , 204 Conn. 523, 540, 529 A.2d 653 (1987), to determine whether the state proved that such violation was harmless beyond a reasonable doubt. See State v. A.M. , supra, 324 Conn. at 205, 152 A.3d 49. Nonetheless, the court noted that "[it was] not required to do a complete Williams analysis due to the nature of the right infringed "; (emphasis added) id. ; and that "the Williams standard applies only when a defendant claims that a prosecutor's conduct did not infringe on a specific constitutional right, but nevertheless deprived the defendant of his general due process right to a fair trial." Id., at 199, 152 A.3d 49, citing State v. Payne , 303 Conn. 538, 562-63, 34 A.3d 370 (2012). With respect to the felony murder charge, "[f]elony murder occurs when, in the course of and in furtherance of another crime, one of the participants in that crime causes the death of a person who is not a participant in the crime.... The two phrases, in the course of and in furtherance of, limit the applicability of the statute with respect to time and causation.... The phrase in the course of focuses on the temporal relationship between the murder and the underlying felony.... We previously have defined the phrase in the course of for purposes of § 53a-54c to include the period immediately before or after the actual commission of the crime ." (Citation omitted; internal quotation marks omitted.) State v. Johnson , 165 Conn. App. 255, 290-91, 138 A.3d 1108, cert. denied, 322 Conn. 904, 138 A.3d 933 (2016) ; see also General Statutes § 53a-54c. The state accused the defendant of committing burglary as the underlying felony for this charge, and alleged that "in the course of and in furtherance of such crime, he or another participant caused the death of [the victim] ." With respect to the burglary in the first degree charge, "[a] person is guilty of burglary in the first degree when . such person enters or remains unlawfully in a building with intent to commit a crime therein and is armed with . a deadly weapon ." General Statutes § 53a-101 (a) (1). Finally, § 53a-217 provides in relevant part: "(a) A person is guilty of criminal possession of a firearm . when such person possesses a firearm . and (1) has been convicted of a felony committed prior to, on or after October 1, 2013, or of a violation of section 21a-279, 53a-58, 53a-61, 53a-61a, 53a-62, 53a-63, 53a-96, 53a-175, 53a-176, 53a-178 or 53a-181d committed on or after October 1, 2013 ." As previously stated, counsel for the defendant conceded during closing argument that the defendant was guilty of criminal possession of a firearm. See footnote 10 of this opinion. The defendant alternatively argues that we should "prohibit generic tailoring" arguments under our supervisory authority "and . apply that ruling to [the present] case." "[A]n appellate court may invoke its supervisory authority [over the administration of justice] to reverse a criminal conviction when the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper.... Such a sanction generally is appropriate, however, only when the [prosecutor's] conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal." (Internal quotation marks omitted.) State v. Thompson , 266 Conn. 440, 485, 832 A.2d 626 (2003). We conclude that this is not an appropriate case for our supervisory authority because we do not believe that the prosecutor's arguments in the present case, even if assumed for the sake of argument to have been improper, were so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal. Cf. State v. Payne , 260 Conn. 446, 463, 797 A.2d 1088 (2002) ; id., at 466, 797 A.2d 1088 (reversing conviction under supervisory authority where prosecutor committed numerous improprieties, which were part of pattern of misconduct throughout closing argument, in disregard of trial court rulings; "[m]erely to reprimand a prosecutor [under such circumstances] would not sufficiently convey our strong disapproval of such tactics"). We also conclude that the defendant cannot prevail on his claim of plain error. The defendant concedes that his fully briefed state constitutional claim "is an issue of first impression" and that the prosecutor's "generic tailoring" argument is permissible under the federal constitution. See State v. Alexander , supra, 254 Conn. at 299-300, 755 A.2d 868. The alleged error therefore is not "plain in the sense that it is patent [or] readily [discernible] on the face of a factually adequate record, [and] also . obvious in the sense of not debatable." (Internal quotation marks omitted.) State v. Jamison , 320 Conn. 589, 596, 134 A.3d 560 (2016) ; see also State v. Fagan , 280 Conn. 69, 88, 905 A.2d 1101 (2006) (defendant's plain error claim addressing sentence enhancement under General Statutes § 53a-40b presented issue of first impression and, therefore, Supreme Court "[could not] conclude that the trial court committed a clear and obvious error by exercising its discretion under the express provisions of a presumptively valid statute"), cert. denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed.2d 236 (2007). Nor is the alleged error "so harmful or prejudicial that it resulted in manifest injustice." State v. Jamison , supra, at 599, 134 A.3d 560. This is especially so where the state presented overwhelming evidence of guilt, and its case did not hinge on a credibility contest between the defendant and Coutermash. See State v. Sanchez , 308 Conn. 64, 84, 60 A.3d 271 (2013) ("[t]o find plain error without regard to the evidence in the case would be inconsistent with the requirement of showing manifest injustice"). The defendant generally asserts that "[i]f this court concludes that the state committed improprieties in its closing argument, it then considers whether the defendant was deprived of his federal and state rights to due process and [a fair trial]." (Emphasis added.) The defendant does not independently analyze this claim under the state constitution. We therefore deem any state constitutional claim abandoned. See, e.g., State v. Bennett , 324 Conn. 744, 748 n.1, 155 A.3d 188 (2017). Our opinion should not be understood to suggest in any way that the prosecutor committed impropriety at any time during her rebuttal. We recognize 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." (Internal quotation marks omitted.) State v. Thompson , 266 Conn. 440, 458, 832 A.2d 626 (2003). We simply assume, solely for the sake of argument, that the prosecutor's remarks were improper. In relevant part, the prosecutor cross-examined the defendant as follows: "Q. All right. Did you call 911 when you left [the victim's apartment], sir? "A. No, I called my lawyer. "Q. You called your lawyer? "A. Not right afterward, but after I found out about the warrant. "Q. When- "A. Not Glenn Conway. "Q. My question is, when you were so upset about [the victim] being shot, did you call 911? "A. No." The prosecutor did not revisit the defendant's call to his lawyer during cross-examination. In addition to the remarks referenced in part I of this opinion, the prosecutor, when comparing the testimony of Coutermash and the defendant, also argued in relevant part: "[The defendant] had the opportunity to look at all of this evidence here.... Coutermash didn't have that opportunity." The defendant argues on appeal that "[t]his case was largely a credibility contest between Coutermash and [him]." According to the defendant, "[he] entered [the victim's] house to stop the fight [between Coutermash and the victim], without an intent to commit a felony , and was [therefore] not guilty of burglary or felony murder." (Emphasis added.) In other words, he focuses his argument on what the state needed to prove with respect to the burglary charge by contending that he did not enter or remain in the victim's apartment with an intent to commit a crime. See General Statutes § 53a-101 (a) (1).

12511348

DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee v. Joseph R. PONGER et al.

Deutsche Bank Nat'l Trust Co. v. Ponger

2019-07-02

AC 41014

495

499

213 A.3d 495

213

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:58:09.224733+00:00

Fastcase

DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee v. Joseph R. PONGER et al.

DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee v. Joseph R. PONGER et al. AC 41014 Appellate Court of Connecticut. Argued November 29, 2018 Officially released July 2, 2019 Colin B. Connor, for the appellant (defendant Theresa Ponger). Christopher J. Picard, Hartford, for the appellee (plaintiff). DiPentima, C. J., and Moll and Sullivan, Js.

2317

14115

SULLIVAN, J. The defendant Theresa Ponger appeals from a judgment of strict foreclosure rendered by the trial court. On appeal, the defendant's principal claim is that the court erred when it concluded that the plaintiff, Deutsche Bank National Trust Company, as Trustee, in Trust, for Registered Holders of Long Beach Mortgage Loan Trust 2006-WL3, Asset-Backed Certificates, Series 2006-WL3, had provided notice of default and acceleration to her when it sent notice to the subject property addressed to her former spouse, Joseph R. Ponger (Ponger), who no longer resided at the property. Because the court correctly held that the notice requirement under the mortgage was satisfied because notice to one joint tenant or joint obligor constitutes notice to the others, we affirm the judgment of the trial court. The parties stipulated to the following relevant facts. On September 7, 2005, Ponger executed a note in favor of Long Beach Mortgage Company in the principal amount of $420,000. The note was endorsed in blank and supplied to the plaintiff prior to the commencement of this action. Also on September 7, 2005, Ponger and the defendant executed a mortgage deed in favor of Long Beach Mortgage Company on property located at 23 Macintosh Road, Norwalk. The mortgage was recorded in the Norwalk land records on September 13, 2005. The plaintiff is the present holder of the note. On or about December 6, 2013, by letter addressed to Ponger at 23 Macintosh Road, Norwalk, Connecticut 06857, the plaintiff advised him that the note and mortgage were in default due to his failure to make the required monthly payments. Notice of the aforementioned default was not addressed to the defendant. In the absence of a cure of the default, the plaintiff elected to accelerate the amount due under the note. On April 15, 2014, the plaintiff provided Ponger and the defendant notice of their rights under the General Statutes as they relate to the Emergency Mortgage Assistance Program. See General Statutes § 8-265cc et seq. The record further indicates that Ponger failed to make payments pursuant to the note from July 1, 2013, to the date of the joint stipulation, May 9, 2017. The present action was commenced on October 13, 2015, approximately eighteen months after the Emergency Mortgage Assistance Program notice was mailed to the subject property. On May 5, 2016, after the expiration of the court approved foreclosure mediation period, the defendant filed a timely answer asserting, as a special defense, that the plaintiff had failed to provide her with proper notice of default and acceleration. Thereafter, on June 2, 2016, the plaintiff filed a motion for summary judgment as to both Ponger and the defendant. The court granted the motion with respect to Ponger but denied the motion with respect to the defendant. On May 16, 2017, the parties filed a joint stipulation of facts with the court as to the remaining issues in dispute. On September 6, 2017, the court issued its memorandum of decision finding in favor of the plaintiff. The court determined that "[r]esolution of this issue is controlled squarely by Citicorp Mortgage, Inc. v. Porto , 41 Conn. App. 598, 600-604, 677 A.2d 10 (1996)," and, thus, concluded in relevant part that the "notice of default and acceleration was sent to [the defendant] as a joint tenant of the mortgaged property and a joint obligor on the mortgage deed." Thereafter, the court rendered judgment of strict foreclosure against both Ponger and the defendant, and set the law day for January 16, 2018. This appeal followed. Additional facts and procedural history will be set forth as necessary. The defendant's principal claim on appeal is that the court erred when it concluded that the notice requirement provision of the subject mortgage had been satisfied as to the defendant when the plaintiff provided notice addressed exclusively to Ponger. Specifically, the defendant claims that, because she is a "[b]orrower" under the terms of the mortgage, and because the notice provision of the mortgage requires notice of default and acceleration to be given to the "[b]orrower," the plaintiff was required to provide her individually with notice. The defendant further claims that the court improperly applied the legal principles set forth in Citicorp Mortgage, Inc. v. Porto , supra, 41 Conn. App. at 600, 677 A.2d 10, because the present case is distinguishable, and, as a result of the improper application of Citicorp Mortgage, Inc. , a necessary condition precedent to the foreclosure action was not met. We disagree. As an initial matter, we note that the defendant's claim presents a mixed question of law and fact. "Where the question whether proper notice was given depends upon the construction of a written instrument or the circumstances are such as lead to only one reasonable conclusion, it will be one of law, but where the conclusion involves the effect of various circumstances capable of diverse interpretation, it is necessarily one of fact for the trier." (Internal quotation marks omitted.) Sunset Mortgage v. Agolio , 109 Conn. App. 198, 202, 952 A.2d 65 (2008). Because the plaintiff claims "that the facts found were insufficient to support the court's legal conclusion, this issue presents a mixed question of law and fact to which we apply plenary review." Winchester v. McCue , 91 Conn. App. 721, 726, 882 A.2d 143, cert. denied, 276 Conn. 922, 888 A.2d 91 (2005). We begin by addressing the defendant's claim that the court erred when it applied the legal principles set forth in Citicorp Mortgage, Inc. , to the present case. In Citicorp Mortgage, Inc. , this court addressed whether notice to one joint tenant constituted notice to the others under similar, but not identical, circumstances. There, the defendant and his spouse were living apart, and neither the defendant nor the spouse resided at the subject property at the time notice was delivered. Similar to the notice provision in the present case, the relevant notice provision provided: "Unless applicable law requires a different method, any notice that must be given to me under this note will be given by delivering it or by mailing it first class to me at the property address above or at a different address if I give the note holder notice of my different address." (Internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Porto , supra, 41 Conn. App. at 600 n.4, 677 A.2d 10. Unlike like the present case, in which the defendant is a signatory only on the subject mortgage, the defendant in Citicorp Mortgage, Inc. , was both a signatory on the note and a signatory on the corresponding mortgage. This court concluded that, although "proper notice of acceleration is a necessary condition precedent to an action for foreclosure . the plaintiff provided the defendant with proper notice by mailing the notice of acceleration to [a joint tenant of the defendant]." Id., at 603, 677 A.2d 10. This court further concluded that, "[w]hile it appears that service of a notice upon one tenant in common is not usually regarded as binding upon the others, unless they are engaged in a common enterprise, the rule is different where the relation is that of a joint tenancy. In such a case, it is said that notice to one of them is binding upon all. 20 Am. Jur. 2d, Cotenancy and Joint Ownership § 113 (1995)." (Internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Porto , supra, 41 Conn. App. at 603, 677 A.2d 10. Largely informed by our Supreme Court's decision in Katz v. West Hartford , 191 Conn. 594, 600, 469 A.2d 410 (1983), which reaffirmed long-standing precedent that "[i]n the case of cofiduciaries [and joint tenants] notice to one is deemed to be notice to the other," this court's decision in Citicorp Mortgage, Inc. , also restated the long-standing principle that "[n]otice to one of two joint obligors conveys notice to the other with respect to matters affecting the joint obligation. United States v. Fleisher Engineering & Construction Co. , 107 F.2d 925, 929 (2d Cir. 1939)." (Emphasis added.) Citicorp Mortgage, Inc. v. Porto , supra, 41 Conn. App. at 603-604, 677 A.2d 10. Despite the foregoing, the defendant claims that the trial court misapplied the aforementioned standards because, unlike the defendant in Citicorp Mortgage, Inc. , who was both a signatory on the note and corresponding mortgage, she was not a signatory on the subject note. We find the defendant's claim unpersuasive. In a recent decision, this court addressed a similar claim. See Citibank, N.A. v. Stein , 186 Conn. App. 224, 199 A.3d 57 (2018), cert. denied, 331 Conn. 903, 202 A.3d 373 (2019). In Citibank, N.A. , the defendant argued that, because he was a signatory on the subject mortgage but not a signatory on the corresponding note, notice to his former spouse, who was the sole signatory on the note, was not effective as to him. Id., at 250 n.21, 199 A.3d 57. This court held that, because the defendant signed the mortgage instrument, thereby pledging the property as security for the debt obligation created by the note, which was signed by the former spouse, the defendant was a joint obligor as to the mortgage and that the notice provided to his former spouse, despite their contrasting endorsements, satisfied the notice requirements under the mortgage. Id., at 249-50, 250 n.21, 199 A.3d 57. Critically, at oral argument before this court, the defendant conceded that, at all relevant times, she and Ponger were joint tenants with respect to the subject property. See Katz v. West Hartford , supra, 191 Conn. at 600, 469 A.2d 410. Furthermore, it is not in dispute that the defendant and Ponger continued as joint obligors under the subject mortgage. See Citicorp Mortgage, Inc. v. Porto , supra, 41 Conn. App. at 603-604, 677 A.2d 10. Further still, the defendant has not challenged the stipulation or otherwise disputed that her signature is on the mortgage. Accordingly, we conclude that the present case falls squarely within the ambit of this court's decision in Citicorp Mortgage, Inc. , and, therefore, the notice to Ponger constituted notice to the defendant. The judgment is affirmed and the case is remanded for the purpose of setting new law days. In this opinion the other judges concurred. Joseph R. Ponger was also a defendant at trial but does not appeal from the judgment of strict foreclosure. In this opinion, we refer to Theresa Ponger as the defendant and to Joseph R. Ponger as Ponger. Several subsequent encumbrancers also were named as defendants, but they are not parties to this appeal. By virtue of assignments of the mortgage from Long Beach Mortgage Company to Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Trust 2006-WL3, dated April 7, 2010, and recorded June 11, 2010, in volume 7200 at page 113 of the Norwalk land records, and thereafter from Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Trust 2006-WL3 to the plaintiff, dated August 20, 2015, and recorded October 9, 2015, in volume 8244 at page 101 of the Norwalk land records, the plaintiff became the mortgagee of record. The notice provision of the subject mortgage provides in relevant part: "Any notice to Borrower provided for in this Security Instrument shall be given by delivering it or by mailing it by first class mail unless applicable law requires use of another method. The notice shall be directed to the Property Address or any other address Borrower designates by notice to Lender." The subject mortgage defines the "[b]orrower" as "Joseph Ponger and Theresa Ponger.'' Relatedly, the defendant claims that the court erred when it concluded that the plaintiff's admission that notice was not individually addressed to the defendant did not preclude judgment of strict foreclosure. Because the plaintiff's admission is not legally significant as to the defendant's claim on appeal, we decline to address it. The principal issue before the trial court essentially was identical to the issue now presented on appeal, namely, whether the plaintiff was required to provide the defendant with individual notice of default and acceleration pursuant to the notice provision in the subject mortgage. In addition, the defendant claims that, even assuming arguendo that she received the notice sent by the plaintiff to Ponger, the notice failed to comply with certain requirements set forth in the mortgage deed and, thus, was deficient. The defendant failed to raise this distinct claim before the trial court and, therefore, we decline to review it. See DiMiceli v. Cheshire , 162 Conn. App. 216, 229-30, 131 A.3d 771 (2016) ("Our appellate courts, as a general practice, will not review claims made for the first time on appeal. We repeatedly have held that [a] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one . [A]n appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level.... [B]ecause our review is limited to matters in the record, we [also] will not address issues not decided by the trial court." [Internal quotation marks omitted.] ). Additionally, in her brief the defendant argues that the court erred when it concluded that she and Ponger were joint tenants as to the subject property. At oral argument, however, the defendant conceded that, at all relevant times, she remained a joint tenant to the subject property. Citibank, N.A. v. Stein , supra, 186 Conn. App. at 224, 199 A.3d 57, was officially released two days prior to oral argument. We note that neither the plaintiff nor the defendant chose to submit invited post argument memoranda to address its relevancy. See Practice Book § 67-10. See footnote 7 of this opinion.

12492655

Brenda I. TIRADO v. CITY OF TORRINGTON

Tirado v. City of Torrington

2018-01-09

AC 39273

258

266

179 A.3d 258

179

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.410267+00:00

Fastcase

Brenda I. TIRADO v. CITY OF TORRINGTON

Brenda I. TIRADO v. CITY OF TORRINGTON AC 39273 Appellate Court of Connecticut. Argued October 24, 2017 Officially released January 9, 2018 Brenda I. Tirado, self-represented, the appellant (plaintiff). Jaime M. LaMere, corporation counsel, for the appellee (defendant). Keller, Elgo and Bear, Js.

4317

26054

BEAR, J. The plaintiff, Brenda I. Tirado, appeals from the judgment of dismissal rendered by the trial court for lack of subject matter jurisdiction. The dispositive issue in this appeal is whether the court improperly dismissed the plaintiff's action for lack of subject matter jurisdiction due to her failure to (1) file her complaint within one year of the tax assessment pursuant to General Statutes § 12-119, and (2) exhaust available administrative remedies prior to filing an action pursuant to General Statutes § 12-117a. We agree that the court lacked subject matter jurisdiction because the plaintiff failed to exhaust her administrative remedies prior to filing suit pursuant to § 12-117a, and, accordingly, we affirm the judgment of the trial court. The following facts and procedural history are relevant to this appeal. On March 22, 2010, the city of Waterbury issued a certificate of change for the 2004 grand list, removing the plaintiff's motor vehicle therefrom, after receiving information from the plaintiff that she resided in Torrington on October 1, 2004. The city of Waterbury forwarded its certificate of change to the defendant, the city of Torrington. On March 24, 2010, after receiving the Waterbury certificate of change, the defendant's tax assessor issued a certificate of change and added the plaintiff's motor vehicle to its 2004 grand list. On February 10, 2014, the plaintiff filed a complaint in the judicial district of Waterbury, claiming that the defendant issued a certificate of change after the three year statutory limit set forth in General Statutes § 12-57. On March 3, 2014, the defendant filed an answer, denying that the expiration of any limitations period required the defendant's tax assessor's office to remove the plaintiff's name from the list of individuals owing taxes to the defendant. On October 20, 2015, the plaintiff filed a certificate of closed pleadings and a claim for trial. On February 8, 2016, the court, Shapiro, J. , granted the defendant's motion to transfer the matter to the judicial district of Litchfield because an aggrieved taxpayer must bring an application for relief in the judicial district where the town or city is located. See General Statutes § 12-117a and 12-119. On April 26, 2016, the plaintiff filed a motion for summary judgment and a memorandum in support thereof, claiming that the defendant acted without authority when it added the plaintiff's motor vehicle to its 2004 grand list on March 24, 2010, pursuant to General Statutes § 12-60. On April 27, 2016, the defendant objected to the plaintiff's motion for summary judgment, arguing that the certificate of change was issued pursuant to § 12-57 (b), not § 12-60. On April 28, 2016, the plaintiff filed a reply brief in further support of her motion for summary judgment, but she withdrew her summary judgment motion on May 4, 2016. Thereafter, on May 12, 2016, the plaintiff filed a motion to strike the defendant's answer, which the court, Shah, J. , denied on May 17, 2016, on the grounds that the motion was untimely filed more than two years after the filing of the defendant's answer and did not contain an accompanying memorandum that was required pursuant to Practice Book § 10-39. A one day bench trial took place on May 17, 2016. Following trial, the court rendered a judgment of dismissal for lack of subject matter jurisdiction because "[t]he plaintiff failed to exhaust available administrative remedies before she filed the present action pursuant to . § 12-117a.... She also failed to file her complaint within one year of the assessment if she had proceeded under . § 12-119." (Citations omitted.) This appeal followed. We begin by setting forth our standard of review. "A determination regarding a trial court's subject matter jurisdiction is a question of law. When . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Stones Trail, LLC v. Weston , 174 Conn. App. 715, 735, 166 A.3d 832, cert. dismissed, 327 Conn. 926, 171 A.3d 59 (2017). In the present case, the issue of subject matter jurisdiction was raised by the court sua sponte, as it was entitled to do. "[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time.... Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) Id., at 736, 166 A.3d 832. "[W]henever it is found . that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33. Because our determination of whether the court erred in dismissing the plaintiff's case for lack of subject matter jurisdiction depends, in part, on whether § 12-119 or § 12-117a applies to the plaintiff's claim, we first address the plaintiff's argument on appeal that § 12-119 and 12-117a do not apply to an appeal of a tax assessment under § 12-57 and 12-60. We agree with the plaintiff that the court erred in ruling that § 12-119 was applicable to her claim, and that she violated § 12-119, but we disagree with her that the court erred in ruling that § 12-117a was applicable to her claim. "When a taxpayer is aggrieved by the assessment of his property, there are statutory procedures in place for the taxpayer to challenge the assessment. [T]he legislature has established two primary methods by which taxpayers may challenge a town's assessment or revaluation of their property. First, any taxpayer claiming to be aggrieved by an action of an assessor may appeal, pursuant to General Statutes § 12-111, to the town's board of [assessment appeals]. The taxpayer may then appeal, pursuant to . § [12-117a], an adverse decision of the town's board of [assessment appeals] to the Superior Court. The second method of challenging an assessment or revaluation is by way of § 12-119." (Footnote omitted; internal quotation marks omitted.) Interlude, Inc. v. Skurat , 253 Conn. 531, 537, 754 A.2d 153 (2000). Our Supreme Court has defined the applicability of § 12-119 as follows: "[ Section] 12-119 allows a taxpayer one year to bring a claim that the tax was imposed by a town that had no authority to tax the subject property, or that the assessment was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of [the] property . The first category in the statute embraces situations where a tax has been laid on property not taxable in the municipality where it is situated . The second category consists of claims that assessments are (a) manifestly excessive and (b) . could not have been arrived at except by disregarding the provisions of statutes for determining the valuation of the property." (Citation omitted; internal quotation marks omitted.) Id., at 537-38, 754 A.2d 153. Thus, "[§] 12-119 addresses two different types of cases: (1) When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set; and (2) a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and [must] have been arrived at . by disregarding the [proper] . valuation of such property ." (Internal quotation marks omitted.) Id., at 538, 754 A.2d 153. In the present case, the plaintiff filed an action, claiming that the defendant acted without authority when it issued a certificate of change for the 2004 grand list because it was prohibited from doing so by the three year statute of limitations in § 12-57 (a). We agree with the plaintiff that this claim does not fall within the scope of the categories of claims available under § 12-119. The first category of § 12-119 does not apply because the plaintiff admitted that she lived in Torrington on October 1, 2004, and she thus is not claiming that the tax in question "has been laid on property not taxable in the town or city in whose tax list such property was set ." (Internal quotation marks omitted.) Interlude, Inc. v. Skurat , supra, 253 Conn. at 538, 754 A.2d 153 ; cf. Hotshoe Enterprises, LLC v. Hartford , 284 Conn. 833, 836-37, 937 A.2d 689 (2008) (owners of condominium hangar units at airport brought action pursuant to § 12-119, claiming that property was tax exempt as "land . held in trust . for state-owned airport"); Faith Center, Inc. v. Hartford , 192 Conn. 434, 435, 472 A.2d 16 (religious organization brought action pursuant to § 12-119, claiming that its property was tax exempt), cert. denied, 469 U.S. 1018, 105 S.Ct. 432, 83 L.Ed.2d 359 (1984). The second category of § 12-119 does not apply because the plaintiff does not claim that the tax is "manifestly excessive" in that it "disregard[s] the [proper] . valuation of [the] property ." (Internal quotation marks omitted.) Interlude, Inc. v. Skurat , supra, at 538, 754 A.2d 153 ; cf. Wheelabrator Bridgeport, L.P. v. Bridgeport , 320 Conn. 332, 340-41, 133 A.3d 402 (2016) (plaintiff brought action pursuant to, inter alia, § 12-119, claiming that "valuations were excessive"); Griswold Airport, Inc. v. Madison , 289 Conn. 723, 728, 961 A.2d 338 (2008) (airport brought action pursuant to § 12-119, claiming that assessment was "manifestly excessive"). On the basis of the foregoing, we agree with the plaintiff that § 12-119 does not apply to her claim that the defendant acted without authority when it issued a certificate of change and added her motor vehicle to its 2004 grand list. See, e.g., Second Stone Ridge Cooperative Corp. v. Bridgeport , 220 Conn. 335, 343, 597 A.2d 326 (1991) (finding that, where plaintiff's claim did not satisfy category requirements under § 12-119, "an appeal under § 12-119 was not authorized"). In contrast to § 12-119, "[§] 12-117a . provide[s] a method by which an owner of property may directly call in question the valuation placed by assessors upon his property ." (Internal quotation marks omitted.) Konover v. West Hartford , 242 Conn. 727, 734, 699 A.2d 158 (1997). Pursuant to General Statutes § 12-111 (a), "[a]ny person . claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to the board of assessment appeals." If the taxpayer is not satisfied with the board's decision, "[§] 12-117a . allows taxpayers to appeal the decisions of municipal boards of [assessment appeals] to the Superior Court ." Konover v. West Hartford , supra, at 734, 699 A.2d 158. "In a § 12-117a appeal, the trial court performs a two step function. The burden, in the first instance, is upon the plaintiff to show that he has, in fact, been aggrieved by the action of the board in that his property has been overassessed.... Only after the court determines that the taxpayer has met his burden of proving that the assessor's valuation was excessive and that the refusal of the board . to alter the assessment was improper, however, may the court then proceed to the second step in a § 12-117a appeal and exercise its equitable power to grant such relief as to justice and equity appertains ." (Citations omitted; internal quotation marks omitted.) Id., at 734-35, 699 A.2d 158. In the present case, the plaintiff did "call in[to] question the valuation placed by [the defendant's assessor] upon [her] property ." (Internal quotation marks omitted.) Id., at 734, 699 A.2d 158. The plaintiff claimed that the defendant acted without authority when it issued a certificate of change and added her motor vehicle to its 2004 grand list beyond the three year statute of limitations that the plaintiff alleged was applicable. On the basis of her claim that she was "aggrieved by the doings of the [defendant's] assessors"; General Statutes § 12-111 (a) ; that claim was appealable to the defendant's Board of Assessment Appeals and then, if she was dissatisfied with the board's decision, to the Superior Court. See General Statutes § 12-117a ; see also Interlude, Inc. v. Skurat , supra, 253 Conn. at 537, 754 A.2d 153. Having concluded that § 12-117a applies to the plaintiff's claim, we next address the plaintiff's argument that the trial court "misappl[ied] the law" in "dismissing the case for lack of subject matter jurisdiction." Specifically, the plaintiff claims that the court erred in dismissing the case because a question of statutory interpretation is a question of law for the court. We disagree. The court dismissed the plaintiff's case for lack of subject matter jurisdiction because the plaintiff failed to exhaust her available administrative remedies prior to filing the action pursuant to § 12-117a, which contemplates that a taxpayer must challenge a municipality's tax assessment to the board of assessment appeals prior to appealing to the Superior Court. See General Statutes § 12-117a. "It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." (Internal quotation marks omitted.) Fairchild Heights Residents Assn., Inc. v. Fairchild Heights, Inc. , 310 Conn. 797, 808, 82 A.3d 602 (2014) ; accord LaCroix v. Board of Education , 199 Conn. 70, 83-84, 505 A.2d 1233 (1986). "In the absence of exhaustion of [an available administrative] remedy, the action must be dismissed." (Internal quotation marks omitted.) Piteau v. Board of Education , 300 Conn. 667, 678, 15 A.3d 1067 (2011). Because the plaintiff never appealed the defendant's 2004 grand list tax assessment to the defendant's Board of Assessment Appeals, she therefore failed to exhaust her available administrative remedies prior to filing her action. Accordingly, the court properly determined, pursuant to § 12-117a and established precedent, that it lacked subject matter jurisdiction. Finally, the plaintiff claims for the first time on appeal that she did not receive notice of the certificate of change and the defendant's tax assessment, and that by the time she learned about them years later, it was too late to challenge the defendant's tax assessment pursuant to § 12-117a and 12-119. The plaintiff did not raise the issue of lack of notice in the trial court. Because the plaintiff did not raise this issue in the court proceedings, we decline to consider it on appeal. See, e.g., Chief Disciplinary Counsel v. Rozbicki , 326 Conn. 686, 695, 167 A.3d 351 (2017) ("[t]o permit a party to raise a claim on appeal that has not been raised at trial-after it is too late for the trial court or the opposing party to address the claim-would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party" [internal quotation marks omitted] ); State v. Hilton , 45 Conn. App. 207, 222, 694 A.2d 830 ("[w]e are not bound to consider claims of law not properly raised at trial"), cert. denied, 243 Conn. 925, 701 A.2d 659 (1997), cert. denied, 522 U.S. 1134, 118 S.Ct. 1091, 140 L.Ed.2d 147 (1998). In summary, § 12-119 does not apply to the plaintiff's claim, and, therefore, "an appeal under § 12-119 was not authorized." Second Stone Ridge Cooperative Corp. v. Bridgeport , supra, 220 Conn. at 343, 597 A.2d 326. An appeal under § 12-117a also could not be maintained by the plaintiff because she failed to exhaust available administrative remedies before filing her action pursuant to that statute. See Piteau v. Board of Education , supra, 300 Conn. at 678, 15 A.3d 1067. Accordingly, the court properly dismissed the plaintiff's action for lack of subject matter jurisdiction. The judgment is affirmed. In this opinion the other judges concurred. The plaintiff also claims on appeal that the trial court erred in (1) allowing the defendant, the city of Torrington, "to raise a special defense and evidence outside of the defendant's pleading [in violation of Practice Book § 10-3 (a) ]," (2) finding that General Statutes § 12-57 (b) is the applicable section for issuing a certificate of change for a motor vehicle, and (3) denying her motion to strike on the grounds that it was untimely and it did not contain an accompanying memorandum as required by Practice Book § 10-39. Because the issue of subject matter jurisdiction is dispositive of this appeal, we do not address the plaintiff's other claims. See, e.g., Heinonen v. Gupton , 173 Conn. App. 54, 55 n.1, 162 A.3d 70, cert. denied, 327 Conn. 902, 169 A.3d 794 (2017) ; see also Bailey v. Medical Examining Board for State Employee Disability Retirement , 75 Conn. App. 215, 223, 815 A.2d 281 (2003) ( "[h]aving determined that the Superior Court properly found that it lacked subject matter jurisdiction, we do not reach the plaintiff's second claim"). At trial, the defendant's tax assessor testified as follows: "At some point it was discovered, by information provided to the assessor's office in Waterbury, proof that [the plaintiff's] residency was not in Waterbury on October 1, 2004, but [that she] was [a] resident of Torrington on . October 1, 2004 ." In its memorandum of law in opposition to the plaintiff's motion for summary judgment, the defendant alleged that the information the city of Waterbury received came from the plaintiff: "The plaintiff provided two forms of written proof to the city of Waterbury that she lived in the city of Torrington on October 1, 2004: (1) a Connecticut Light & Power bill dated [September 2, 2004] and (2) a statement from Michael F. Wallace Middle School in Waterbury that the plaintiff's son attended Forbes Elementary School in the city of Torrington during the 2004-2005 school year.... Based [on] this information, the city of Waterbury issued a certificate of change removing the vehicle from its 2004 motor vehicle grand list." At trial, the plaintiff was questioned more than once as to how the two forms of proof of residence came into the possession of the assessor in the city of Waterbury, but each time the plaintiff stated that she did not know or did not remember. The tax for the Waterbury 2004 grand list was assessed at $301.14. The city of Waterbury issued a tax credit to the plaintiff for $301.14. The tax for the Torrington 2004 grand list was assessed at $182.80. Although the plaintiff refers generally to § 12-57 in her complaint, her quotation of the statutory language indicates that she is asserting that her claim pertains to subsection (a), which provides in relevant part that "[w]hen it has been determined by the assessors of a municipality that tangible personal property has been assessed when it should not have been, the assessors shall, not later than three years following the tax due date relative to the property, issue a certificate of correction removing such tangible personal property from the list of the person who was assessed in error ." General Statutes § 12-57 (a). As the court set forth in its memorandum of decision, however, subsection (a) pertains to tangible personal property; subsection (b) is applicable to motor vehicles, the property at issue in this matter, and there is no statute of limitations for issuing a certificate of change for a motor vehicle. See General Statutes § 12-57 (b). The court also noted in its memorandum of decision that "§ 12-57 (b) allows a municipality to issue a certificate of correction at any time upon receipt of notice of a vehicle that the municipality should have assessed in any tax year. If the court had jurisdiction and reached a decision on the merits, the court would have found for the defendant. The plaintiff is liable for the tax assessment on her motor vehicle for the 2004 tax year based on her admission that she lived in the city of Torrington in 2004 and was subject to applicable taxes." In her principal brief on appeal to this court, the plaintiff states in her statement of issues that the trial court erred in raising the issue of subject matter jurisdiction sua sponte, but she fails to analyze that claim. She thus is deemed to have abandoned it. See, e.g., Clelford v. Bristol , 150 Conn. App. 229, 233, 90 A.3d 998 (2014) ("[a]ssignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court" [internal quotation marks omitted] ). Although subject matter jurisdiction may be raised at any time, a court is limited in its ability to raise, sua sponte, the issue of lack of subject matter jurisdiction for a plaintiff's failure to timely commence an action, where the statute of limitations "is procedural and personal rather than substantive or jurisdictional and is thus subject to waiver." L. G. DeFelice & Son, Inc. v. Wethersfield , 167 Conn. 509, 513, 356 A.2d 144 (1975) (holding that court erred by sua sponte raising one year statute of limitations in § 12-119 because defendant had waived statute of limitations defense by not pleading it). Thus, if the plaintiff's claim was brought pursuant to § 12-119, the court improperly raised, sua sponte, the issue of the one year statute of limitations imposed by § 12-119 because the defendant in the present case waived a statute of limitations defense by not raising it. See id. If, however, the plaintiff's claim was brought pursuant to § 12-117a, the court properly raised, sua sponte, the issue of subject matter jurisdiction because the plaintiff failed to exhaust her administrative remedies prior to filing the action, which required dismissal. See Piteau v. Board of Education , 300 Conn. 667, 678, 15 A.3d 1067 (2011) ("[i]n the absence of exhaustion of [an available administrative] remedy, the action must be dismissed" [emphasis added; internal quotation marks omitted] ). As set forth in greater detail in footnote 4 of this opinion, the plaintiff incorrectly cites to § 12-57 (a), which contains a three year statute of limitations for assessing a tax on tangible personal property. See General Statutes § 12-57 (a). Pursuant to § 12-57 (b), the applicable section for motor vehicles, there is no statute of limitations for issuing a certificate of change for a motor vehicle. See General Statutes § 12-57 (b). General Statutes § 12-117a provides in relevant part: "Any person . claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom . with respect to the assessment list . to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court." General Statutes § 12-117a. We note that even if we were to agree with the plaintiff's claim that the court improperly concluded that there was a lack of subject matter jurisdiction under both § 12-119 and 12-117a, we would remand with direction to the court to render judgment in favor of the defendant in accordance with its statement that it would do so if it were able to reach the merits of the plaintiff's claim. On the basis of our review of the record, the court correctly noted as a matter of law in its memorandum of decision following trial that "§ 12-57 (b) allows a municipality to issue a certificate of correction at any time upon receipt of notice of a vehicle that the municipality should have assessed in any tax year.... The plaintiff is liable for the tax assessment on her motor vehicle for the 2004 tax year based on her admission that she lived in the city of Torrington in 2004 and was subject to applicable taxes." (Emphasis added.) At oral argument before this court, the plaintiff stated that the defendant's tax assessor sent the tax bill to her former Torrington address, despite the fact that she gave her current Waterbury address to the tax assessor, and she thus did not receive notice of the change until two years after the notice was sent. Though she did not frame it as an issue on appeal, the plaintiff also states in her principal brief that she had not "received the tax bill nor the certificate of change [because] it was sent to an address in Torrington that the plaintiff hadn't lived at in over five years by the Torrington tax assessor." At trial, in contradiction to her statements on appeal, the plaintiff testified: "In . 2010 I received a letter from Torrington stating that . I owed back taxes . back from . 2004 or something like that." Her sworn testimony at trial thus conflicts with her unsworn statements in this appeal. Further, as set forth in footnote 2 of this opinion, it appears that the change from Waterbury to Torrington was made at the plaintiff's request, after she provided Waterbury with two forms of proof that she lived in Torrington on October 1, 2004, also undercutting her argument as to lack of notice. The plaintiff's claims at trial were that the three year statute of limitations under which the assessor could issue a certificate of change had run, that she had paid her taxes, and that the certificate of change form incorrectly listed § 12-60, instead of § 12-57, at the top. At no point during trial, or in her pleadings, did the plaintiff allege a lack of notice of the 2010 tax assessment.

12492654

Kate L. DOYLE, et al. v. ASPEN DENTAL OF SOUTHERN CT, PC, et al.

Doyle v. Aspen Dental of S. CT, PC

2018-01-30

AC 39325

249

258

179 A.3d 249

179

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.410267+00:00

Fastcase

Kate L. DOYLE, et al. v. ASPEN DENTAL OF SOUTHERN CT, PC, et al.

Kate L. DOYLE, et al. v. ASPEN DENTAL OF SOUTHERN CT, PC, et al. AC 39325 Appellate Court of Connecticut. Argued October 17, 2017 Officially released January 30, 2018 Scott D. Camassar, for the appellants (plaintiffs). Beverly Knapp Anderson, with whom was Craig A. Fontaine, for the appellee (defendant Brandon Kang). Sheldon, Keller and Bishop, Js.

4361

27146

BISHOP, J. This appeal arises out of a dental malpractice action brought by the plaintiffs, Kate L. Doyle and Brendan Doyle, against the defendants, Aspen Dental of Southern CT, PC, and Aspen Dental Management, Inc. (Aspen Dental), and Brandon Kang, DDS, in connection with a dental implant procedure performed by Kang. The plaintiff appeals from the judgment rendered by the trial court dismissing her action against the defendant on the basis of her failure to comply with General Statutes § 52-190a(a), which required the plaintiff to attach to her complaint an opinion letter authored by a "similar health care provider," as defined in General Statutes § 52-184c(c). On appeal, the plaintiff argues that the court erred in concluding that the opinion letter written by a general dentist was not authored by a "similar health care provider" and that an opinion letter from an oral and maxillofacial surgeon was required instead. In support of this claim, the plaintiff alleges that she had no method of discovering or verifying that the defendant was an oral and maxillofacial surgeon in addition to being a licensed general dentist because there was no authentic public record from which the plaintiff could have determined that the defendant had training and experience as an oral and maxillofacial surgeon. We conclude that the court properly determined that because the defendant did, in fact, have training and experience in the specialty of oral and maxillofacial surgery, the opinion letter submitted by the plaintiff was not authored by a "similar health care provider." Accordingly, we affirm the judgment of the trial court. The plaintiff's complaint, filed on August 19, 2015, contained the following factual allegations, the truth of which the court was required to assume for purposes of deciding the defendant's motion to dismiss. On March 15, 2011, the plaintiff underwent an examination and treatment at Aspen Dental for a broken crown on one of her front teeth. The tooth was removed on March 29, 2011, after which the plaintiff, under sedation, received a dental implant for the missing tooth on July 29, 2011. By December 21, 2012, however, the plaintiff's implant was failing, allegedly because it had been placed at an improper angle. It penetrated the nasal floor, resulting in bone loss along the sides of the implant. The plaintiff alleged that the defendant knew or should have known that the implant was failing, but failed to inform her of this circumstance. On August 4, 2013, the defendant performed a bone grafting procedure. At that time, the defendant informed the plaintiff that the implant might have to be removed at a later date. The plaintiff commenced the present dental malpractice action, alleging medical negligence by the defendant, by complaint dated August 19, 2015. As required by § 52-190a and 52-184c, the plaintiff attached to the complaint a certificate of reasonable inquiry by the plaintiff's attorney and an opinion letter prepared by Andrew Mogelof, a general dentist, who the plaintiff claimed to be a "similar health care provider" to the defendant. On October 27, 2015, the defendant filed a motion to dismiss the action against him for lack of personal jurisdiction on the basis of the plaintiff's failure to provide a proper opinion letter, as required by § 52-190a(a), authored by a similar health care provider, as defined in § 52-184c(c). Specifically, the defendant claimed that "the author of the opinion letter must be a board certified, trained and experienced oral and maxillofacial surgeon because the defendant is trained and experienced in the specialty of oral and maxillofacial surgery and holds himself out as an oral and maxillofacial surgeon.... [Because] the [plaintiff] attached an opinion letter authored by a general dentist . [she has] failed to comply with . [ § 52-190a(a) ]." In support of his motion to dismiss, the defendant submitted an affidavit dated October 22, 2015, in which he averred that: "After obtaining my dental degree in 2004, I completed a four year residency program in [o]ral [and] [m]axillofacial [s]urgery, which is one of the dental specialties recognized by the American Dental Association. This four year training certificate program covered the full scope of [o]ral and [m]axillofacial [s]urgery. Rotations included . [thirty-six] months on service with [o]ral and [m]axillofacial [s]urgery.... At all times while working at Aspen Dental, I represented myself to patients as an oral and maxillofacial surgeon. . All of the treatment that I rendered to [the] plaintiff . was in my capacity as an oral and maxillofacial surgeon. The consent form signed by [the] plaintiff was entitled 'Consent for Oral Surgery and Anesthesia.' " On December 14, 2015, the plaintiff filed a memorandum of law in opposition to the defendant's motion to dismiss. In support of her opposition, the plaintiff attached an affidavit from Mogelof, which stated, in relevant part, that he is "experienced in all of the relevant services provided by . [the defendant] in the case of [the plaintiff]." In this affidavit, Mogelof also acknowledged that he is "not trained as an oral and maxillofacial surgeon." Mogelof further stated that "the failure to properly place and treat [the plaintiff's] dental implant was due to a failure to meet the standards of care of basic general surgery and diagnosis, which standards were required to have been met not only by general dentists but also oral surgeons such as [the defendant]." Oral argument on the defendant's motion to dismiss took place on December 21, 2015. Subsequently, the parties filed supplemental briefs and affidavits on December 31, 2015. Oral argument on the defendant's motion to dismiss continued on January 14, 2016. On May 5, 2016, the court, Wenzel, J. , granted the defendant's motion to dismiss. In its memorandum of decision, the court held that "there is significant evidence . that the treatment afforded to the plaintiff fell into the area of oral and maxillofacial surgery.... [The defendant] began treating the plaintiff immediately after her referral to 'the oral surgeon.' Moreover, the records which detailed the treatment of [the] plaintiff were reviewed and quoted by the opinion author, including this very notation [referencing an oral surgeon]. Of the three criteria which can trigger a specialist level of evaluation, the court finds that the evidence submitted in support of this motion by the [defendant] proves that . [1] [the defendant] was in fact trained and experienced in the area of oral surgery and [2] was referred to and held out as an oral surgeon.... Accordingly, having determined that . the author of the opinion letter submitted was not a similar health care provider having not been board certified in [the defendant's] specialty, the court grants the [defendant's] motion to dismiss." On May 18, 2016, the plaintiff filed a motion to reargue or reconsider, which the court denied on June 6, 2016. This appeal followed. On appeal, the plaintiff argues that the court erred in dismissing her malpractice action for her failure to attach to the complaint an opinion letter authored by a board certified specialist in oral and maxillofacial surgery. Specifically, the plaintiff argues that she "met the requirement of [ § 52-190a(a) ] because counsel made a good faith inquiry into whether or not there was dental malpractice, and found a 'similar health care provider' in accordance with the [d]efendant's credentials on file with the public health authorities." We are unpersuaded. We first set forth our standard of review. "The court granted the [defendant's] motion to dismiss for lack of personal jurisdiction on the ground that the . opinion letter [attached to the plaintiff's complaint] was not legally sufficient." Gonzales v. Langdon , 161 Conn. App. 497, 503, 128 A.3d 562 (2015). In reviewing "a challenge to a ruling on a motion to dismiss... [w]hen the facts relevant to an issue are not in dispute, this court's task is limited to a determination of whether, on the basis of those facts, the trial court's conclusions of law are legally and logically correct.... Because there is no dispute regarding the basic material facts, this case presents an issue of law, and we exercise plenary review." (Internal quotation marks omitted.) Helfant v. Yale-New Haven Hospital , 168 Conn. App. 47, 56, 145 A.3d 347 (2016) ; see also Torres v. Carrese , 149 Conn. App. 596, 608, 90 A.3d 256 ("[o]ur review of a trial court's ruling on a motion to dismiss pursuant to § 52-190a is plenary"), cert. denied, 312 Conn. 912, 93 A.3d 595 (2014). "[D]ismissal is the mandatory remedy when a plaintiff fails to file an opinion letter that complies with § 52-190a(a)." Bennett v. New Milford Hospital, Inc. , 300 Conn. 1, 28, 12 A.3d 865 (2011) ; see also General Statutes § 52-190a(c) ("[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action"); Morgan v. Hartford Hospital , 301 Conn. 388, 401, 21 A.3d 451 (2011) (failure to attach a proper opinion letter constitutes lack of jurisdiction over the person). " Section 52-190a(a) provides in relevant part that, prior to filing a [malpractice] action against a health care provider, the attorney or party filing the action . [must make] a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.... To show the existence of such good faith, the claimant or the claimant's attorney . shall obtain a written and signed opinion of a similar health care provider, as defined in [§] 52-184c . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." (Internal quotation marks omitted.) Gonzales v. Langdon , supra, 161 Conn. App. at 504, 128 A.3d 562. "Pursuant to [ § 52-184c ], the precise definition of similar health care provider depends on whether the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist." (Internal quotation marks omitted.) Id. General Statutes "§ 52-184c(b) establishes the qualifications of a similar health care provider when the defendant is neither board certified nor in some way a specialist, and § 52-184c(c) [establishes] those qualifications when the defendant is board certified, trained and experienced in a medical specialty, or holds himself out as a specialist." (Internal quotation marks omitted.) Wilkins v. Connecticut Childbirth & Women's Center , 314 Conn. 709, 725, 104 A.3d 671 (2014). In the present case, it is undisputed that the defendant is trained and experienced in the specialty of oral and maxillofacial surgery. Pursuant to § 52-184c(c), "[i]f the defendant health care provider . is trained and experienced in a medical specialty . a 'similar health care provider' is one who: (1) [i]s trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty." Thus, to satisfy the requirements of § 52-190a(a) and 52-184c(c), the plaintiff was required to obtain an opinion letter from one who was (1) "trained and experienced in" oral and maxillofacial surgery and (2) "certified by the appropriate American board in" oral and maxillofacial surgery. See General Statutes § 52-190a(a) and 52-184c(c). The plaintiff attached to her complaint an opinion letter authored by a general dentist. It is undisputed that Mogelof was not board certified in the specialty of oral and maxillofacial surgery. In his affidavit dated November 12, 2015, Mogelof acknowledged that he is "not trained as an oral and maxillofacial surgeon." Thus, although Mogelof claimed to have knowledge of the procedure performed by the defendant, and the relevant standard of care applicable to that procedure, the possession of such knowledge, alone, is insufficient to meet the credentialing requirements of § 52-184c(c). See Gonzales v. Langdon , supra, 161 Conn. App. at 505, 128 A.3d 562 ("Our precedent indicates that under § 52-184c [c], it is not enough that an authoring health care provider has familiarity with or knowledge of the relevant standard of care.... A similar health care provider must be trained and experienced in the same specialty and certified by the appropriate American board in the same specialty." [Citation omitted; emphasis added; internal quotation marks omitted.] ). Given that Mogelof was not trained and experienced, or board certified, in the defendant's specialty of oral and maxillofacial surgery, as required by § 52-184c(c), the opinion letter submitted by the plaintiff was not legally sufficient under § 52-190a(a). Despite the defendant's training and experience in oral and maxillofacial surgery, the plaintiff maintains that an opinion letter from a general dentist was sufficient in the present case because "there was no authentic public record by which to determine or verify that [the defendant] had training as an oral and maxillofacial surgeon" and she could verify only that the defendant was a licensed general dentist. More specifically, the plaintiff argues that because the defendant's profile on the website of the Department of Public Health (department) did not indicate that he was a board certified oral and maxillofacial surgeon, she was not required to obtain an opinion letter from a board certified oral and maxillofacial surgeon. In response, the defendant argues that "there is no statutory requirement that the defendant's specialty training be verifiable on the website of a public health authority." We agree with the defendant. As an initial matter, we reject the plaintiff's reliance on Gonzales v. Langdon , supra, 161 Conn. App. at 497, 128 A.3d 562, to support her argument that she could rely solely on the information available on the department's website to determine the defendant's credentials. This court previously has rejected that argument. In Gonzales , "[t]he plaintiff argue[d] that she was only required to obtain an opinion letter authored by a board certified dermatologist because that was the only certification that was listed on [the defendant's] profile on the [department's] website." Id., at 503, 128 A.3d 562. This court disagreed, concluding that the plaintiff had failed to obtain an opinion letter from a similar health care provider. See Gonzales v. Langdon , supra, at 503, 128 A.3d 562. Nevertheless, the plaintiff in the present case claims that this court, in Gonzales , described reliance on the department's website as a "good faith effort . to attach an opinion letter authored by a similar health care provider." Id., at 515, 128 A.3d 562. Our review of the case reveals that the plaintiff takes this quote out of context. In Gonzales , this court was simply explaining why the situation it confronted, where "the plaintiff made a good faith effort in her original complaint to attach an opinion letter authored by a similar health care provider"; id., at 515, 128 A.3d 562 ; by looking at the department's website, differed from the situation in New England Road, Inc. v. Planning & Zoning Commission , 308 Conn. 180, 189, 61 A.3d 505 (2013), where "the plaintiff failed to comply in any fashion with one or more of the process requirements." (Internal quotation marks omitted.) Gonzales v. Langdon , supra, 161 Conn. App. at 515, 128 A.3d 562. More importantly, the reference to the plaintiff's "good faith effort" in Gonzales is found in this court's analysis of whether the trial court in that case improperly denied the plaintiff's request for leave to amend the complaint, not whether the plaintiff's reliance on the department's website rendered the opinion letter legally sufficient in the first place. Id., at 509, 515, 128 A.3d 562. Accordingly, we find the plaintiff's reliance on Gonzales unavailing. The plaintiff argues that, aside from the department's website, she had no way of verifying the defendant's training in oral and maxillofacial surgery, and she "cannot be expected to match credentials that [she has] no way of discovering and verifying." We disagree. We first note that the plain language of § 52-190a(a) requires that a plaintiff, prior to filing a medical malpractice action against a health care provider, make "a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant." (Emphasis added.) General Statutes § 52-190a(a). As part of that reasonable inquiry, a plaintiff "shall obtain a written and signed opinion of a similar health care provider, as defined in [§] 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section. ." See General Statutes § 52-190a(a). Our legislature amended § 52-190a(a) in 2005 to include this requirement that a plaintiff obtain "the written opinion of a similar health care provider that there appears to be evidence of medical negligence . [as] part of a comprehensive effort to control significant and continued increases in malpractice insurance premiums by reforming aspects of tort law, the insurance system and the public health regulatory system." (Citations omitted; internal quotation marks omitted.) Wilkins v. Connecticut Childbirth & Women's Center , supra, 314 Conn. at 728, 104 A.3d 671. Thus, to the extent that the plaintiff suggests that she should not be expected to conduct a reasonable inquiry for a defendant health care provider's credentials, we disagree because the plain language of § 52-190a(a) requires her to do so. Further, in focusing her argument solely on information that was available on the department's website, the plaintiff ignores the existence of other methods for ascertaining a defendant health care provider's credentials. She specifically could have asked Aspen Dental or the defendant for the defendant's credentials or resume, a simple request that she does not allege she undertook unsuccessfully in her affidavit in opposition to the defendant's motion to dismiss. Even if the defendant was not forthcoming with the plaintiff's requests for information on the defendant's credentials, the plaintiff could have filed a bill of discovery. See, e.g., Journal Publishing Co., Inc. v. Hartford Courant Co. , 261 Conn. 673, 680-81, 804 A.2d 823 (2002) ("The bill of discovery is an independent action in equity for discovery, and is designed to obtain evidence for use in an action other than the one in which discovery is sought.... As a power to enforce discovery, the bill is within the inherent power of a court of equity . [and] is well recognized . [B]ecause a pure bill of discovery is favored in equity, it should be granted unless there is some well founded objection against the exercise of the court's discretion.... To sustain the bill, the petitioner must demonstrate that what he seeks to discover is material and necessary for proof of, or is needed to aid in proof of or in defense of, another action already brought or about to be brought.... Although the petitioner must also show that he has no other adequate means of enforcing discovery of the desired material, [t]he availability of other remedies . for obtaining information [does] not require the denial of the equitable relief . sought." [Internal quotations marks omitted.] ). In sum, the department's website is not, as the plaintiff suggests, the only reliable method of obtaining or verifying a defendant health care provider's credentials. The plaintiff's argument that she had no way of discovering or verifying the defendant's training and experience as an oral and maxillofacial surgeon is further undercut by Mogelof's identification, in his opinion letter, of notations in the medical file referring to the plaintiff's treatment by an "oral surgeon." Even if the plaintiff was unaware up to that point that the defendant had training as an oral and maxillofacial surgeon, she was put on notice once Mogelof identified the references in the medical file to treatment by an "oral surgeon." Moreover, if the plaintiff had become aware of the defect in the opinion letter before the statute of limitations had expired, she could have requested leave to amend the complaint and cured the defect. See Gonzales v. Langdon , supra, 161 Conn. App. at 510, 128 A.3d 562 ("if a plaintiff alleging medical malpractice seeks to amend his or her complaint in order to amend the original opinion letter, or to substitute a new opinion letter . the trial court . has discretion to permit such an amendment if the plaintiff seeks to amend within the applicable statute of limitations but more than thirty days after the return day"). On the basis of the foregoing, we reject the plaintiff's argument that she had no way of discovering or verifying the defendant's credentials in order to obtain an opinion letter authored by a similar health care provider. In sum, it is undisputed that the defendant is trained and experienced in oral and maxillofacial surgery. It is also undisputed that Mogelof is not trained and experienced in, or board certified in, the defendant's specialty of oral and maxillofacial surgery. Because Mogelof was not a "similar health care provider" as defined in § 52-184c(c), the opinion letter attached to the plaintiff's complaint was legally insufficient under § 52-190a(a), requiring dismissal of the case. See Bennett v. New Milford Hospital, Inc., supra, 300 Conn. at 28, 12 A.3d 865 ; General Statutes § 52-190a(c). Accordingly, the trial court properly granted the defendant's motion to dismiss for lack of personal jurisdiction. The judgment is affirmed. In this opinion the other judges concurred. Brendan Doyle's claim for loss of consortium is a derivative claim of Kate L. Doyle's claims. Therefore, we refer in this opinion to Kate L. Doyle as the plaintiff. On February 17, 2017, the plaintiff withdrew her appeal as to Aspen Dental of Southern CT, PC, and Aspen Dental Management, Inc. Accordingly, references herein to the defendant are to Kang. General Statutes § 52-190a(a) provides in relevant part: "No civil action . shall be filed to recover damages resulting from personal injury . in which it is alleged that such injury . resulted from the negligence of a health care provider, unless the attorney or party filing the action . has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.... To show the existence of such good faith, the claimant or the claimant's attorney... shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." General Statutes § 52-184c(c) provides: "If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a 'similar health care provider' is one who: (1) [i]s trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a 'similar health care provider.' " The plaintiff additionally claims on appeal that the court erred in concluding that the requirement in § 52-184c(c) to obtain an opinion letter from an oral and maxillofacial surgeon also was triggered because the defendant "held himself out" as an oral and maxillofacial surgeon. Specifically, the plaintiff claims that there was insufficient evidence that the defendant was "held out" as a specialist trained and experienced in oral and maxillofacial surgery at the time of her treatment. Because our resolution of the plaintiff's first claim is dispositive of this appeal, we do not address this claim. We also do not address the plaintiff's argument on appeal that "dismissal notwithstanding, the plaintiff still has a remedy under the accidental failure of suit statute, General Statutes § 52-592." As the plaintiff's counsel conceded at oral argument, this claim is not one that this court can address on appeal, as the plaintiff has not commenced an action pursuant to § 52-592. Attached to the defendant's supplemental memorandum of law in further support of his motion to dismiss was a supplemental affidavit, dated December 18, 2015, in which the defendant stated in relevant part: "Extractions, bone grafting procedures and implant placements are among the procedures that I was trained to perform during my post-graduate residency training program in oral and maxillofacial surgery. Extractions, bone grafting and implant placements are within the scope of practice of oral and maxillofacial surgery." To the extent that the plaintiff suggests that a plaintiff should not need to conduct an inquiry in order to ascertain a defendant health care provider's credentials prior to bringing an action, this may be a worthy issue for our legislature to address, but our role is not to contort legislation and is to apply its clear and unambiguous requirements and limitations. See Bennett v. New Milford Hospital, Inc. , supra, 300 Conn. at 15-16, 12 A.3d 865 ("[g]iven the legislature's specific articulations of who is a similar health care provider under § 52-184c [b] and [c], we have hewn very closely to that language and declined to modify or expand it in any way"). More generally, we also reject the plaintiff's argument that reliance on the information in a defendant health care provider's profile on the department's website is sufficient because such an interpretation would render meaningless the other two potential triggers of the requirements under § 52-184c(c) -trained and experienced in a medical specialty, or held out as a specialist-that our legislature has clearly defined. See Bennett v. New Milford Hospital, Inc. , supra, 300 Conn. at 15-16, 12 A.3d 865. In other words, if we were to agree with the plaintiff, only board certification would trigger the requirements of § 52-184c(c), since it is alleged that only board certification is available on that website.

12492653

STATE of Connecticut v. Kason U. ESQUILIN

State v. Esquilin

2018-01-30

AC 38762

238

249

179 A.3d 238

179

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.410267+00:00

Fastcase

STATE of Connecticut v. Kason U. ESQUILIN

STATE of Connecticut v. Kason U. ESQUILIN AC 38762 Appellate Court of Connecticut. Argued October 16, 2017 Officially released January 30, 2018 Steven B. Rasile, assigned counsel, for the appellant (defendant). David J. Smith, senior assistant state's attorney, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (state). Keller, Elgo and Bear, Js.

6345

39613

KELLER, J. The defendant, Kason U. Esquilin, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32 and imposing a four year prison sentence. On appeal, the defendant claims that the court deprived him of his right to due process by admitting into evidence reports of the results of drug tests performed on urine samples collected from the defendant, without requiring the state to introduce such results through the testimony of the analysts who performed the actual testing. We conclude, in accordance with State v. Polanco , 165 Conn. App. 563, 571, 140 A.3d 230, cert. denied, 322 Conn. 906, 139 A.3d 708 (2016), that this claim was not preserved and that the record is inadequate to review it pursuant to State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Accordingly, we affirm the judgment of the trial court. The following facts and procedural history are relevant to our resolution of the defendant's appeal. On April 28, 2008, the defendant was convicted of the underlying offense of the sale of hallucinogens/narcotics in violation of General Statutes § 21a-277(a). On June 17, 2008, he was sentenced to ten years incarceration, execution suspended after two years, and three years of probation. The defendant was released from incarceration on September 10, 2010, and his probationary period began. On March 21, 2012, the defendant was convicted of violating his probation pursuant to § 53a-32. He was sentenced to eight years incarceration, execution suspended after two years, and three years of probation. The terms of his probation, in addition to the standard conditions, required as special conditions, that the defendant (1) obey all federal and state laws, (2) not possess weapons, (3) submit to psychological evaluation and treatment, (4) take medications as prescribed, (5) submit to substance abuse evaluation and treatment, (6) not use or possess drugs and alcohol, (7) submit to random urine and alcohol sensor testing, (8) not associate with drug dealers, users, and gang members, (9) secure full time employment, and (10) pass a general education development course. On August 5, 2013, the defendant, after he reviewed the conditions of probation, acknowledged that he understood the conditions and would follow them. On August 27, 2013, the defendant again was released from incarceration and his probationary period commenced. On January 29, 2014, an arrest warrant for the defendant was issued charging him with a violation of probation on the grounds that the defendant violated the following standard conditions of his probation: (1) "[d]o not violate any criminal law of the United States, this state or any other state or territory" and (2) "[s]ubmit to any medical and/or psychological examination, urinalysis, alcohol and/or drug testing, and/or counseling sessions required by the [c]ourt or the [p]robation [o]fficer." The defendant also was charged with failing to comply with the following special conditions of his probation: (1) submit to substance abuse evaluation and treatment, (2) do not use or possess drugs or alcohol, (3) submit to random urine and alcohol sensor testing, (4) do not associate with drug dealers, users, or gang members, and (5) obey all federal and state laws. The defendant denied that he committed any violations and a probation revocation hearing was held on April 2, 2015. After hearing evidence and argument, the court found that the state had proven, by a preponderance of the evidence, that the defendant had violated his probation. The court found, in relevant part: "[Probation] Officer [Robert] Amanti of the Office of Adult Probation spoke with [the defendant] about the conditions of his probation, including his requirement that he successfully complete treatment and remain free of any illicit substance.... [The defendant] acknowledged those conditions.... [O]n August 15, 2013, the [defendant] was confronted about his substance abuse.... [The defendant] indicated he was proud of getting high and was referred for treatment at [the Southeastern Council on Alcoholism and Drug Dependence (rehabilitation facility) ].... [The defendant], while on probation with the previously noted conditions, rendered several dirty urines on at least seven occasions while on probation. One of the urines dated [August 27, 2013,] was positive for [tetrahydrocannabinol (THC) ] with a level of 757. The [defendant] did not successfully complete treatment at [the rehabilitation facility] and was unsuccessfully discharged. The court finds that he was then rereferred to [the rehabilitation facility] by probation, and again was unsuccessfully discharged.... "[P]robation elected to continue working with [the defendant] toward its intended goal of rehabilitation and did not submit a warrant for violation of probation, which would be a second violation of probation . [probation] continued to work with the [defendant] even after seven positive urines; and that the [defendant] eventually was arrested on [January 20, 2014].... [The defendant's] conduct included grabbing the hair of a pregnant victim, pulling out at least one of her braids.... The [defendant] struck this pregnant female in the face with an open hand, causing pain. . [The defendant] attempted to run away from the police and struggled with those police officers. [The defendant committed the] crimes of breach of peace, assault in the third degree on a pregnant victim, [and] interfering with an officer . [and demonstrated an] inability to successfully complete treatment or to remain sober . [Therefore] . the state . met its burden of proof by a preponderance of the evidence, and [proved that the defendant] violated conditions of his probation for the aforementioned conduct." (Footnotes added.) After the conclusion of the dispositional phase, the court revoked the defendant's probation and sentenced him to four years of incarceration. This appeal followed. The defendant's sole claim is that the court deprived him of his right to due process by admitting into evidence the reports of the results of drug tests performed on his urine samples without requiring the state to introduce such results through the testimony of the analysts who performed the actual testing. The following additional facts are relevant to the disposition of this appeal. At the defendant's probation revocation hearing, the state sought to present testimony from Amanti about the results of the drug tests performed on the defendant's urine and to introduce the reports of such results into evidence as an exhibit. The drug tests were performed on samples of the defendant's urine collected by both probation and the rehabilitation facility between August, 2013, and December, 2013. These samples were sent to out-of-state laboratories to be analyzed and the laboratories would fax reports of the results to the Office of Probation. The analysts who performed the drug tests and authored the reports of the drug tests were not present to testify at the defendant's probation revocation hearing. The identity of these analysts is not explicitly contained in the record, nor is there any indication that the defendant had the opportunity to cross-examine these analysts prior to his probation revocation hearing. During the state's direct examination of Amanti, the prosecutor asked him about the results of a drug test on one of the defendant's urine samples, collected on August 27, 2013. Before Amanti could answer, defense counsel objected on the basis that the report of the results of that drug test was not in evidence. Defense counsel argued that Amanti testifying about the drug test results was inadmissible because it was an unreliable form of double hearsay and a violation of the defendant's right to confrontation. With respect to the right to confrontation, defense counsel argued that admitting Amanti's testimony concerning the results of the drug test violated the defendant's right to confrontation as explicated by the Supreme Court in Bullcoming v. New Mexico , 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). The prosecutor responded that Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and its progeny do not apply to probation revocation hearings. In response, defense counsel specified that, on the basis of the reasoning set forth in Bullcoming , the results of the drug test were unreliable hearsay without testimony from the person who performed the actual testing and were, thus, inadmissible. Defense counsel never explicitly argued that the admission of the test results violated the defendant's right to due process, which is his sole claim on appeal. The court overruled defense counsel's objection, finding "that the testimony being elicited now and the use of the document is not just a testimonial variety of hearsay that's unsupported. This is a document that the state wishes to reference through the testimony of [Amanti] along the lines of what is clearly admissible under Connecticut law . So the court's going to at this point overrule the objection by the defense ." After the court ruled that Amanti could testify about the results of the drug test, the state opted to "skip a little ahead and do something a little different" by introducing the reports of the results of the drug tests as an exhibit at the hearing. Defense counsel objected to the admission of the reports as an exhibit, again arguing that pursuant to Bullcoming , the reports of the results of the drug test were inadmissible hearsay because Amanti did not conduct the actual testing. The court, overruling the defendant's objections, admitted the reports into evidence. All but one of the reports in the state's exhibit indicated that marijuana was detected in the defendant's urine samples collected while he was on probation. The prosecutor then asked Amanti whether the defendant's urine samples tested positive for THC, which is an indication of the use of marijuana, and Amanti answered that they did several times. The state argues that the defendant's due process claim was not preserved because, at the probation revocation hearing, the defendant did not object to the admission of the reports of the results of the drug tests as a violation of his right to due process. As a result, the state argues that the record is inadequate to review the defendant's claim that the admission of the results denied him of his right to due process. In response, the defendant argues that the claim was preserved or, if the claim is unpreserved, it is nonetheless reviewable pursuant to Golding . We agree with the state. We first turn to a brief review of the principles relating to probation and the defendant's rights at a probation revocation hearing. "[P]robation is, first and foremost, a penal alternative to incarceration . [Its] purpose . is to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable.... [P]robationers . do not enjoy the absolute liberty to which every citizen is entitled, but only . conditional liberty properly dependent on observance of special [probation] restrictions.... These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large.... "The success of probation as a correctional tool is in large part tied to the flexibility within which it is permitted to operate.... In this regard, modifications of probation routinely are left to the office of adult probation. When the court imposes probation, a defendant thereby accepts the possibility that the terms of probation may be modified or enlarged in the future pursuant to [General Statutes] § 53a-30.... To this end, probation officers shall use all suitable methods to aid and encourage [a probationer] and to bring about improvement in his [or her] conduct and condition.... "The due process clause of the fourteenth amendment to the United States constitution requires that certain minimum procedural safeguards be observed in the process of revoking the conditional liberty created by probation.... Among other things, due process entitles a probationer to a final revocation hearing . A revocation proceeding is held to determine whether the goals of rehabilitation thought to be served by probation have faltered, requiring an end to the conditional freedom obtained by a defendant at a sentencing that allowed him or her to serve less than a full sentence.... [T]he ultimate question [in the probation process is] whether the probationer is still a good risk . This determination involves the consideration of the goals of probation, including whether the probationer's behavior is inimical to his own rehabilitation, as well as to the safety of the public.... "On the other hand . a [probation] revocation proceeding . is not a criminal proceeding.... It therefore does not require all of the procedural components associated with an adversary criminal proceeding." (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Faraday , 268 Conn. 174, 180-83, 842 A.2d 567 (2004). As such, at a revocation proceeding, the state must prove each alleged violation of probation by a preponderance of the evidence in accordance with General Statutes § 53a-32 and Practice Book § 43-29. Id., at 183-84, 842 A.2d 567. "The due process clause of the fourteenth amendment mandates certain minimum procedural safeguards before that conditional liberty interest [of probation] may be revoked." State v. Polanco , supra, 165 Conn. App. at 570, 140 A.3d 230. Among these minimum procedural safeguards is the right to confrontation at a probation revocation hearing. See Morrissey v. Brewer , 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). With respect to the right to confrontation at a revocation of probation hearing, the Supreme Court has stated that minimum due process requires that the defendant be afforded "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation) ." Id. This court, with guidance from the Second Circuit Court of Appeals and the Federal Rules of Criminal Procedure, previously determined that whether there is good cause for not allowing confrontation should be determined by using a balancing test, which requires the court to balance, "on the one hand, the defendant's interest in confronting the declarant, against, on the other hand, the government's reasons for not producing the witness and the reliability of the proffered hearsay. United States v. Williams , 443 F.3d 35, 45 (2d Cir. 2006) ; see also United States v. Chin , 224 F.3d 121, 124 (2d Cir. 2000)." (Internal quotation marks omitted.) State v. Shakir , 130 Conn. App. 458, 468, 22 A.3d 1285, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011). This court recently concluded that a claim that a court denied a defendant's right to due process by admitting testimonial hearsay at a probation revocation hearing, without giving the defendant the opportunity to confront the declarant, was not preserved for appeal because the defendant, at the hearing, never argued to the trial court that it was required to conduct the balancing test discussed in Shakir to determine whether his right to due process had been violated. See State v. Polanco , supra, 165 Conn. App. at 571, 140 A.3d 230. Polanco controls our determination as to whether the defendant's claim is preserved in the present case. As the record reveals, in both the defendant's initial objection to the admission of the reports of the drug test results and in the ensuing colloquy between defense counsel and the prosecutor, the defendant never argued that the trial court was required to conduct the balancing test to determine whether the admission of the reports of the drug test results denied him the right to due process. Accordingly, this claim was not preserved for appellate review. The defendant contends that if his claim is unpreserved, it is nonetheless reviewable pursuant to State v. Golding , supra, 213 Conn. at 239-240, 567 A.2d 823. Golding review, as modified in In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015), allows this court to review an unpreserved claim when all of the following conditions are met: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Polanco , supra, 165 Conn. App. at 572, 140 A.3d 230. The appellate tribunal is free to respond to the defendant's claim by focusing on whichever Golding prong is most relevant. State v. Santana , 313 Conn. 461, 469-70, 97 A.3d 963 (2014). "[T]he inability to meet any one prong requires a determination that the defendant's claim must fail." (Internal quotation marks omitted.) State v. Soto , 175 Conn. App. 739, 755, 168 A.3d 605, cert. denied, 327 Conn. 970, 173 A.3d 953 (2017). We conclude that the defendant's claim does not satisfy the first Golding prong. Our Supreme Court discussed the first prong of Golding in State v. Brunetti , 279 Conn. 39, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007), and stated: "[T]he defendant may raise . a constitutional claim on appeal, and the appellate tribunal will review it, but only if the trial court record is adequate for appellate review. The reason for this requirement demands no great elaboration: in the absence of a sufficient record, there is no way to know whether a violation of constitutional magnitude in fact has occurred. Thus, as we stated in Golding , we will not address an unpreserved constitutional claim [i]f the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred ." (Footnotes omitted; internal quotation marks omitted.) Id., at 55-56, 901 A.2d 1. Our analysis of whether the defendant's claim satisfies the first Golding prong is guided by our precedent in Polanco and Shakir . Polanco and Shakir both held that an unpreserved claim that a court violated a defendant's right to due process by admitting testimonial hearsay at a probation revocation hearing without according the defendant the right to confront the declarant did not satisfy the first Golding prong because the defendant did not object to the admission of such hearsay as a violation of the right to due process during the probation revocation hearing. State v. Polanco , supra, 165 Conn. App. at 564-65, 576, 140 A.3d 230 (claim that court violated defendant's right to due process at probation revocation hearing by admitting laboratory test results without affording defendant opportunity to confront analyst who performed such tests was not reviewable pursuant to Golding because defendant did not object to admission of results as violation of his right to due process); State v. Shakir , supra, 130 Conn. App. at 460, 468, 22 A.3d 1285 (claim that court violated defendant's right to due process at probation revocation hearing by admitting videotape of social worker's interview with minor complainant without affording defendant opportunity to confront minor complainant was not reviewable pursuant to Golding because defendant did not object to admission of videotape as violation of his right to due process). Polanco and Shakir control our resolution of whether the defendant's claim in the present case is reviewable pursuant to Golding . Both cases held that in order for a claim that the admission of testimonial hearsay at a probation revocation hearing, without the opportunity to confront the declarant, is a violation of the right to due process to be reviewable pursuant to Golding , there must be an adequate record from the probation revocation hearing that enables the appellate tribunal to balance (1) the defendant's interest in confronting the witness against (2) the government's reasons for not producing the witness and the reliability of the proffered hearsay. State v. Polanco , supra, 165 Conn. App. at 575-76, 140 A.3d 230 ; State v. Shakir , supra, 130 Conn. App. at 468, 22 A.3d 1285. In order for the record to be adequate, the state must be given notice of the due process claim so that it can present its reasons for not producing the witness. See State v. Polanco , supra, at 575, 140 A.3d 230. In both Shakir and Polanco , the state was not given notice because the defendants did not object to the admission of testimonial hearsay at their probation revocation hearings on the grounds that it was a violation of their right to due process. See State v. Polanco , supra, at 575-76, 140 A.3d 230 ; State v. Shakir , supra, at 462, 468, 22 A.3d 1285. As a result, the record in each of those cases was inadequate for this court to balance the defendant's interest in confrontation against the state's reasons for not producing the witness and the reliability of the proffered hearsay. State v. Polanco , supra, at 576, 140 A.3d 230 ; State v. Shakir , supra, at 468, 22 A.3d 1285. Guided by our precedent, we conclude that the defendant in the present case failed to sustain his burden of providing this court with an adequate record to review his claim of a due process violation. The defendant, at the probation revocation hearing, did not object to the admission of the reports of the drug test results on the basis that the admission of such results violated his right to due process. Therefore, the state was not given adequate notice of the defendant's due process claim and, accordingly, did not provide the possible reasons for not calling the analysts who performed the drug tests. As a result, we are unable to balance the state's interest in not producing the persons who performed the drug tests against the defendant's interest in confronting those persons. Without this basis, we cannot determine whether a violation of due process occurred and, thus, the record is inadequate for Golding review of the defendant's claim. The judgment is affirmed. In this opinion the other judges concurred. Both parties have relied on the court's oral ruling of April 2, 2015. The record does not contain a signed transcript of the court's decision, as is required by Practice Book § 64-1(a), and the defendant did not file a motion pursuant to Practice Book § 64-1(b) providing notice that the court had not filed a signed transcript of its oral decision. Nor did the defendant take any additional steps to obtain a decision in compliance with Practice Book § 64-1(a). In some cases in which the requirements of Practice Book § 64-1(a) have not been followed, this court has declined to review the claims raised on appeal due to the lack of an adequate record. Despite the absence of a signed transcript of the court's oral decision or a written memorandum of decision, however, our ability to review the claims raised on the present appeal is not hampered because we are able to readily identify a sufficiently detailed and concise statement of the court's findings in the transcript of the proceeding. See State v. Brunette , 92 Conn. App. 440, 446, 886 A.2d 427 (2005), cert. denied, 277 Conn. 902, 891 A.2d 2 (2006). Amanti testified at the hearing that the defendant came to the Office of Adult Probation on August 15, 2013, for a scheduled visit. On that date, Amanti testified that the defendant stated that "he was proud of getting high and getting drunk." Amanti testified at the probation revocation hearing that because of the defendant's use of drugs and alcohol, a probation officer referred the defendant to submit to treatment at the rehabilitation facility. Amanti testified that, despite the defendant's awareness that submitting to treatment at the rehabilitation facility was a condition of his probation, probation officers learned that the defendant did not successfully complete the treatment program at the rehabilitation facility. Moreover, Amanti testified that because of his continued use of marijuana, the defendant was again referred to submit to treatment at the rehabilitation facility. Amanti testified that the defendant failed to complete the treatment program for a second time. The defendant's girlfriend, the female to whom the court refers, testified at the probation revocation hearing that, while she was pregnant, the defendant pulled her off a couch by grabbing her by the braids, took her phone, and physically prevented her from leaving their shared apartment and when she did attempt to leave the apartment, the defendant grabbed her by the hair and struck her in the face with an open palm. Charles Flynn, a New London police officer, testified at the probation revocation hearing about arresting the defendant after he struck his pregnant girlfriend. Flynn testified that as he approached the defendant's apartment building in a marked police car, the defendant ran inside the building when he saw the police arrive. Flynn testified that, after he and another officer searched the building, they found the defendant hiding in an unlit basement. Furthermore, Flynn testified that after the defendant attempted to flee from the officers, the defendant began to fight the officers as they arrested him, jeopardizing the officers' safety. In Bullcoming , the Supreme Court was presented with the question of "whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification-made for the purpose of proving a particular fact-through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification." Bullcoming v. New Mexico , supra, 564 U.S. at 652, 131 S.Ct. 2705. The Supreme Court held "that surrogate testimony of that order does not meet the constitutional requirement. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist." Id. In Crawford , the Supreme Court stated, in a criminal trial: "Where testimonial evidence is at issue . the Sixth Amendment demands . unavailability and a prior opportunity for cross-examination." Crawford v. Washington , supra, 541 U.S. at 68, 124 S.Ct. 1354. General Statutes § 53a-32 provides in relevant part: "(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. Any such warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court.... "(c) Upon notification by the probation officer of the arrest of the defendant or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which such defendant is alleged to have violated the conditions of such defendant's probation or conditional discharge, shall be advised by the court that such defendant has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in such defendant's own behalf. Unless good cause is shown, a charge of violation of any of the conditions of probation or conditional discharge shall be disposed of or scheduled for a hearing not later than one hundred twenty days after the defendant is arraigned on such charge. "(d) If such violation is established, the court may: (1) Continue the sentence of probation or conditional discharge; (2) modify or enlarge the conditions of probation or conditional discharge; (3) extend the period of probation or conditional discharge, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29; or (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. Any such lesser sentence may include a term of imprisonment, all or a portion of which may be suspended entirely or after a period set by the court, followed by a period of probation with such conditions as the court may establish. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence." Practice Book § 43-29 provides: "In cases where the revocation of probation is based upon a conviction for a new offense and the defendant is before the court or is being held in custody pursuant to that conviction, the revocation proceeding may be initiated by a motion to the court by a probation officer and a copy thereof shall be delivered personally to the defendant. All other proceedings for revocation of probation shall be initiated by an arrest warrant supported by an affidavit or by testimony under oath showing probable cause to believe that the defendant has violated any of the conditions of the defendant's probation or his or her conditional discharge or by a written notice to appear to answer to the charge of such violation, which notice, signed by a judge of the superior court, shall be personally served upon the defendant by a probation officer and contain a statement of the alleged violation. All proceedings thereafter shall be in accordance with the provisions of Sections 3-6, 3-9 and 37-1 through 38-23. At the revocation hearing, the prosecuting authority and the defendant may offer evidence and cross-examine witnesses. If the defendant admits the violation or the judicial authority finds from the evidence that the defendant committed the violation, the judicial authority may make any disposition authorized by law. The filing of a motion to revoke probation, issuance of an arrest warrant or service of a notice to appear, shall interrupt the period of the sentence as of the date of the filing of the motion, signing of the arrest warrant by the judicial authority or service of the notice to appear, until a final determination as to the revocation has been made by the judicial authority." We surmise that the defendant by citing to Crawford and its progeny is asserting that the due process right to confrontation equates to the sixth amendment right to confrontation at a criminal trial. Whether Crawford applies at a probation revocation hearing has not been addressed by a Connecticut appellate court. Although it is not necessary to address this issue in order to resolve this appeal, we observe that, since Crawford , an overwhelming majority of federal circuit and state appellate courts that have addressed this issue have concluded that Crawford does not apply to a revocation of probation hearing. See, e.g., United States v. Ferguson , 752 F.3d 613, 619 (4th Cir. 2014) (revocation of parole proceeding "does not involve the Sixth Amendment"); United States v. Lloyd , 566 F.3d 341, 343 (3d Cir. 2009) ("[the] limited right to confrontation [afforded at a revocation proceeding] stems from the Fifth Amendment's Due Process Clause, not from the Confrontation Clause of the Sixth Amendment"); United States v. Ray , 530 F.3d 666, 668 (8th Cir. 2008) ("[t]he Sixth Amendment only applies to 'criminal prosecutions,' and a revocation of supervised release is not part of a criminal prosecution"); United States v. Kelley , 446 F.3d 688, 691 (7th Cir. 2006) ("Crawford changed nothing with respect to [probation] revocation hearings" because the "limited confrontation right in revocation proceedings was explicitly grounded in considerations of due process, not the Sixth Amendment"); United States v. Rondeau , 430 F.3d 44, 47 (1st Cir. 2005) ("[n]othing in Crawford indicates that the Supreme Court intended to extend the Confrontation Clause's reach beyond the criminal prosecution context"); United States v. Hall , 419 F.3d 980, 985-86 (9th Cir.) ("[w]e . see no basis in Crawford or elsewhere to extend the Sixth Amendment right of confrontation to supervised release proceedings"), cert. denied, 546 U.S. 1080, 126 S.Ct. 838, 163 L.Ed. 2d 714 (2005) ; United States v. Kirby , 418 F.3d 621, 627 (6th Cir. 2005) ("Crawford does not apply to revocation of supervised release hearings"); United States v. Aspinall , 389 F.3d 332, 343 (2d Cir. 2004) ("[n]othing in Crawford , which reviewed a criminal trial, purported to alter the standards set by Morrissey /[Gagnon v. Scarpelli , 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) ] or otherwise suggested that the Confrontation Clause principle enunciated in Crawford is applicable to probation revocation proceedings"); State v. Carr , 216 Ariz. 444, 167 P.3d 131, 134 (App. 2007) ; People v. Loveall , 231 P.3d 408, 420 n.18 (Colo. 2010) (Eid, J., concurring in part and dissenting in part); Jenkins v. State , Docket No. 133, 2004, 2004 WL 2743556, *3 (Del. November 23, 2004) (decision without published opinion, 862 A.2d 386 [Del. 2004] ); Peters v. State , 984 So.2d 1227, 1227 (Fla. 2008), cert. denied, 555 U.S. 1109, 129 S.Ct. 917, 173 L.Ed. 2d 127 (2009) ; Ware v. State , 289 Ga.App. 860, 658 S.E.2d 441, 444 (2008) ; State v. Rose , 144 Idaho 762, 171 P.3d 253, 258 (2007) ; Reyes v. State , 868 N.E.2d 438, 440 n.1 (Ind. 2007) ; State v. Marquis , 292 Kan. 925, 257 P.3d 775, 777 (2011) ; State v. Michael , 891 So.2d 109, 115 (La. App.) writ denied, 904 So.2d 681 (La. 2005) ; Commonwealth v. Wilcox , 446 Mass. 61, 841 N.E.2d 1240, 1243 (2006) ; Blanks v. State , 228 Md.App. 335, 137 A.3d 1074, 1087 (2016) ; People v. Breeding , 284 Mich.App. 471, 772 N.W.2d 810, 812 appeal denied, 485 Mich. 917, 773 N.W.2d 261 (2009) ; State v. Johnson , 287 Neb. 190, 842 N.W.2d 63, 73 (2014) ; People v. Brown , 32 A.D.3d 1222, 1222, 821 N.Y.S.2d 348, appeal denied, 7 N.Y.3d 924, 860 N.E.2d 994, 827 N.Y.S.2d 692 (2006) ; Wortham v. State , 188 P.3d 201, 205 (Okla. Crim. App. 2008) ; State v. Gonzalez , 212 Or.App. 1, 157 P.3d 266, 266 (2007) ; State v. Pompey , 934 A.2d 210, 214 (R.I. 2007) ; State v. Pauling , 371 S.C. 435, 639 S.E.2d 680, 682 (App. 2006) ; State v. Divan , 724 N.W.2d 865, 870 (S.D. 2006) ; State v. Walker , 307 S.W.3d 260, 265 (Tenn. Crim. App. 2009) ; Trevino v. State , 218 S.W.3d 234, 239 (Tex. App. 2007) ; Henderson v. Commonwealth , 285 Va. 318, 736 S.E.2d 901, 905 (2013) ; State v. Abd-Rahmaan , 154 Wash.2d 280, 111 P.3d 1157, 1160-61 (2005). In Shakir , this court observed that the principles in Morrissey are codified in the Federal Rules of Criminal Procedure. State v. Shakir , supra, 130 Conn. App. at 467, 22 A.3d 1285. With respect to the right to confrontation, the Federal Rules mandate that at a probation revocation hearing the defendant should be afforded, "upon request, an opportunity to question any adverse witness, unless the judge determines that the interest of justice does not require the witness to appear." Fed. R. Crim. P. 32.1(b)(1)(B)(iii). The defendant neither distinguishes the present case from Shakir and Polanco , nor provides a basis for this court to conclude that those cases were wrongly decided. The defendant asserts that the determination of whether the admission of the reports of the drug test results, without allowing the defendant to confront the analysts who analyzed the defendant's urine, amounted to a violation of the defendant's due process rights only requires this court to make a legal conclusion. Yet, the defendant's argument is not persuasive because the legal conclusion the defendant requests requires the factual underpinnings as to why the analysts who performed the drug tests were not called to testify. Those facts are not contained in the record. At the probation revocation hearing, defense counsel cited State v. Giovanni P. , 155 Conn. App. 322, 338 n.14, 110 A.3d 442, cert. denied, 316 Conn. 909, 111 A.3d 883 (2015), when objecting to the admission of the reports of the drug test results. A footnote in that case states: "When the trial court ruled on the objection [to out-of-court statements], it addressed the defendant's objection as to the credibility of the witness and the reliability of the hearsay statements. Thus, the defendant's claim on appeal that the admission of [the out-of-court declarant's] testimony denied him the right to confront and cross-examine witnesses was not presented to the trial court. We further note that, under Golding , the defendant's claim cannot be reviewed because it fails to satisfy the first prong, which requires that the record is adequate to review the alleged claim of error. State v. Golding , [supra, 213 Conn. at 239, 567 A.2d 823 ]. Because the defendant failed to object to the admission of the testimony as a violation of his due process right to cross-examine an adverse witness, the court had no occasion to consider whether there was good cause not to allow confrontation. Therefore, the record is inadequate for review of that claim." (Internal quotation marks omitted.) State v. Giovanni P. , supra, 155 Conn. App. at 338 n.14, 110 A.3d 442. In the present case, during the hearing, defense counsel argued that "had there been an objection to hearsay . [in Giovanni P. ]-it was not lab result hearsay; it was testimony-[the Appellate Court] might have considered the question." Although the defendant does not now argue on appeal that citing to this case preserved his claim or developed an adequate record for review, we observe that at the defendant's probation revocation hearing, defense counsel misconstrued the language in Giovanni P. Giovanni P. does not, contrary to what defense counsel suggested, support the contention that objecting to the admission of testimonial hearsay on hearsay grounds alone at a probation revocation hearing creates an adequate record for an appellate tribunal to review a claim that the admission of such testimonial hearsay denies a defendant his due process right to confrontation. Moreover, defense counsel's incorrect interpretation of Giovanni P. neither alerted the court that it needed to balance the defendant's due process right to confrontation against the state's interest in not presenting the witness, nor developed an adequate record for appellate review of the defendant's claim pursuant to Golding .

12492649

James A. HARNAGE v. Racquel LIGHTNER et al.

Harnage v. Lightner

2018-03-06

SC 19806

212

217

179 A.3d 212

179

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:29.410267+00:00

Fastcase

James A. HARNAGE v. Racquel LIGHTNER et al.

James A. HARNAGE v. Racquel LIGHTNER et al. SC 19806 Supreme Court of Connecticut. Argued November 15, 2017 Officially released March 6, 2018 James A. Harnage, self-represented, the appellant (plaintiff). Michael A. Martone, assistant attorney general, with whom were Steven R. Strom, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Terrence M. O'Neill, assistant attorney general, for the appellees (defendants). Palmer, McDonald, Robinson, Mullins and Kahn, Js.

2423

15148

PER CURIAM. The self-represented plaintiff, James A. Harnage, appeals from the judgment of the Appellate Court; see Harnage v. Lightner , 163 Conn. App. 337, 362, 137 A.3d 10 (2016) ; affirming the judgment of the trial court, which dismissed his action against the defendant state employees in their individual capacities for lack of personal jurisdiction due to insufficient service of process. We granted the plaintiff's petition for certification to appeal, limited to the following question: "Did the Appellate Court properly conclude that the plaintiff's action against the defendants in their individual capacities properly was dismissed for lack of personal jurisdiction?" Harnage v. Lightner , 323 Conn. 902, 150 A.3d 683 (2016). We answer the certified question in the affirmative. The following undisputed facts and procedural history are set forth in the opinion of the Appellate Court. "The plaintiff is incarcerated at the MacDougall-Walker Correctional Institution. On February 11, 2014, the trial court found that the plaintiff was indigent and granted him a fee waiver for the entry fee, the filing fee, and the cost of service of process. The plaintiff then initiated this action against the defendants, in their official and individual capacities, alleging that [they] had violated his constitutional rights because they were deliberately indifferent to his medical needs. The plaintiff claimed, inter alia, that the defendants reused needles when administering insulin medication to inmates with diabetes... [and] refused to provide him with medical treatment for a serious hemorrhoid and an abdominal hernia. "On March 5, 2014, the plaintiff attempted to serve the defendants by leaving a copy of the writ of summons . and [the] complaint with the attorney general or his designee at the Office of the Attorney General. On or about April 15, 2014, the defendants mailed a letter to the plaintiff, requesting that he post a recognizance bond in the amount of $250 within ten days [in accordance with the provisions of General Statutes (Rev. to 2013) § 52-185 and 52-186]. That same day, the defendants also filed a motion to dismiss the complaint against the defendants in their individual capacities for lack of personal jurisdiction due to insufficient service of process, and against the defendants in their official capacities because the plaintiff had failed to post a recognizance bond. "The plaintiff subsequently filed an objection to the defendants' motion to dismiss. In his objection, the plaintiff argued that he had properly served the defendants in their individual capacities by leaving a copy of the process with the attorney general at the Office of the Attorney General in [the city of] Hartford. Furthermore, he claimed that the requirement of posting a recognizance bond pursuant to § 52-185 and Practice Book § 8-3 did not apply to him, and, even if it did, the amount of the recognizance bond was in the court's discretion and should be limited to the nominal amount of one dollar, which, in essence, is a request for a waiver. "On June 30, 2014, the court granted the defendants' motion to dismiss in part. Specifically, the court granted the motion to dismiss the claims against the defendants in their individual capacities because the plaintiff failed to properly serve the defendants in their individual capacities pursuant to [General Statutes] § 52-57 (a). The court also ordered the plaintiff to post a recognizance bond in the amount of $250 within two weeks or it would dismiss the case in its entirety upon reclaim of the motion. Because the plaintiff could not afford to post the $250 recognizance bond and desired to appeal from the court's decision, on November 10, 2014, he filed a motion for judgment, which the court subsequently granted." Harnage v. Lightner , supra, 163 Conn. App. at 340-42, 137 A.3d 10. The plaintiff appealed to the Appellate Court from the judgment of the trial court, claiming, first, that the trial court incorrectly concluded that the plaintiff had failed to properly serve the defendants in their individual capacities and, second, that the trial court improperly granted the defendants' motion to dismiss the claims brought against them in their official capacities due to the plaintiff's failure to post a recognizance bond. Id., at 342, 347, 137 A.3d 10. With respect to his first claim, the plaintiff maintained that, "in a civil action against state employees in their individual capacities, [General Statutes] § 52-64(a) permits service of process to be made by a proper officer leaving a copy of process with the attorney general at the Office of the Attorney General in Hartford." Id., at 342, 137 A.3d 10. The plaintiff also contended that " § 52-57(a) does not require him to serve the defendants in hand or at their place of abode because the phrase, '[e]xcept as otherwise provided,' contained in § 52-57(a), is a reference to § 52-64." Id. With respect to his second claim, the plaintiff claimed that, because of his indigency and status as an inmate, "the recognizance bond requirement does not apply to him, or, if it does, it is unconstitutional because it deprives him of his rights to due process and equal protection of the law under the federal constitution." Id., at 347, 137 A.3d 10. Regarding his constitutional claim, the plaintiff argued, more specifically, that the recognizance bond requirement "is unconstitutional, as applied to him, an indigent inmate, because it denies him his fundamental right of access to the courts, particularly his right to challenge the conditions of his confinement." Id., at 352, 137 A.3d 10. The Appellate Court rejected the plaintiff's first claim, explaining that it was foreclosed by well established precedent holding "that a plaintiff, who serves a state defendant pursuant to § 52-64(a) by leaving a copy of the process with the attorney general at the Office of the Attorney General, has properly served the defendant only in his or her official capacity and has failed to properly serve the defendant in his or her individual capacity." Id., at 344-45, 137 A.3d 10. The Appellate Court further explained that the plaintiff also could not prevail under § 52-57(a), which provides that, "[e]xcept as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." As the Appellate Court noted, subsections(b) through (f) of § 52-57"specifically [enumerate] exceptions to subsection (a), none of which provide[s] that it is permissible to serve process in cases against state employees in their individual capacities by leaving a copy of the process with the attorney general at the Office of the Attorney General. Thus, the legislature's use of the phrase, '[e]xcept as otherwise provided,' does not advance the plaintiff's claim because he has failed to identify any applicable statutory exception to § 52-57(a)." Id., at 346, 137 A.3d 10. With respect to the plaintiff's second contention, the Appellate Court determined that the plaintiff's failure to post a recognizance bond in accordance with § 52-185 and 52-186 did not necessarily require dismissal of his claims against the defendants in their official capacities. See id., at 362, 137 A.3d 10. Although concluding that the recognizance bond provisions applied to the plaintiff; id., at 347, 137 A.3d 10 ; the Appellate Court also observed that the plaintiff had raised "valid constitutional concerns regarding the recognizance bond requirement as applied to him, an indigent inmate"; id., at 354, 137 A.3d 10 ; because "[p]risoners possess a right of access not only to pursue appeals from criminal convictions or to bring a habeas action, but also to assert civil rights actions to vindicate their basic constitutional rights, including challenging the conditions of their confinement under the eighth [and fourteenth] amendment[s] to the federal constitution." Id., at 354, 137 A.3d 10. To alleviate these constitutional concerns, the Appellate Court placed an interpretative gloss on § 52-185 and 52-186 as authorizing a trial court to waive or significantly reduce a party's obligation to post a recognizance bond in light of that party's indigency and, as in the present case, status as an inmate. See id., at 359, 137 A.3d 10. The Appellate Court therefore reversed the trial court's judgment insofar as the plaintiff's action against the defendants in their official capacities was dismissed and remanded the case for a hearing on the issue of whether the plaintiff is entitled to a waiver of the recognizance bond requirement. Id., at 362, 137 A.3d 10. We granted the plaintiff's petition for certification to appeal solely on the issue of whether the Appellate Court correctly concluded that the trial court properly had dismissed the plaintiff's action against the defendants in their individual capacities for lack of personal jurisdiction. Harnage v. Lightner , supra, 323 Conn. at 902, 150 A.3d 683. Having examined the record on appeal and reviewed the parties' briefs and arguments, we conclude that the issue on which we granted certification was fully considered and properly resolved against the plaintiff in the thorough and well reasoned opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion contained therein beyond the summary already provided in this opinion. Accordingly, we affirm the judgment of the Appellate Court insofar as it pertains to the issue raised by the certified question. Ordinarily, our resolution of the certified question would end our inquiry. Thus, in the present case, we typically would have no occasion to address the Appellate Court's remand of the case to the trial court for a determination of whether the plaintiff is entitled to a waiver of the recognizance bond requirement of § 52-185 and 52-186 with respect to his action against the defendants in their official capacities. At oral argument before this court, however, the plaintiff clarified, in express and unequivocal terms, that, despite the contrary understanding of the Appellate Court, the trial court and the defendants; see footnote 2 of this opinion; it was never his intention to sue the defendants in their official capacities and that, in fact, he was raising no claims against the defendants in their official capacities. In light of that acknowledgement, the recognizance bond issue has been rendered moot, and, consequently, there is no reason for the case to be remanded to the trial court for a hearing on the plaintiff's entitlement to a waiver of the recognizance bond requirement. The judgment of the Appellate Court is affirmed with respect to the issue of whether the plaintiff's action against the defendants in their individual capacities properly was dismissed for lack of personal jurisdiction, the remand order of the Appellate Court directing the trial court to conduct a hearing on the issue of whether to waive the recognizance bond requirement is vacated, and the case is remanded to the Appellate Court with direction to remand the case to the trial court and to direct the trial court to render judgment dismissing the plaintiff's action. The defendants named in the plaintiff's complaint are nine state employees. Eight of the defendants were employed by the University of Connecticut Correctional Managed Healthcare Program and provided medical services to inmates at the MacDougall-Walker Correctional Institution; they are identified in the complaint as Racquel Lightner, Doctors Pillai, O'Hallaran, and Naqui, "CN Vecchairelli," "PA Rob," "LPN Francis," and Lisa Caldonero. The ninth defendant, identified as "Lieutenant Williams," was an employee of the Department of Correction. As the Appellate Court observed, "[t]he plaintiff's complaint specifically indicates that the plaintiff is suing the defendants in their individual capacities but is silent as to whether he is also suing them in their official capacities. The defendants and the trial court treated the complaint as if the defendants were being sued in both their official capacities and [their] individual capacities." Harnage v. Lightner , supra, 163 Conn. App. at 340-41 n.4, 137 A.3d 10. General Statutes (Rev. to 2013) § 52-185 (a) provides in relevant part: "If . in any civil action . it does not appear to the authority signing the process that the plaintiff is able to pay the costs of the action should judgment be rendered against him, the plaintiff shall enter into a recognizance to the adverse party with a financially responsible inhabitant of this state as surety, or a financially responsible inhabitant of this state shall enter into a recognizance to the adverse party, that the plaintiff shall prosecute his action to effect and answer all costs for which judgment is rendered against him...." Hereinafter, all references to § 52-185 are to the 2013 revision. General Statutes (Rev. to 2013) § 52-186 (a) provides in relevant part: "The court, upon motion of the defendant or on its own motion, may order a sufficient bond to be given by the plaintiff before trial . In determining the sufficiency of the bond to be given, the court shall consider only the taxable costs which the plaintiff may be responsible for under section 52-257 ." Hereinafter, all references to § 52-186 are to the 2013 revision. General Statutes § 52-57(a) provides: "Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." General Statutes § 52-64(a) provides: "Service of civil process in any civil action or proceeding maintainable against or in any appeal authorized from the actions of, or service of any foreign attachment or garnishment authorized against, the state or against any institution, board, commission, department or administrative tribunal thereof, or against any officer, servant, agent or employee of the state or of any such institution, board, commission, department or administrative tribunal, as the case may be, may be made by a proper officer (1) leaving a true and attested copy of the process, including the declaration or complaint, with the Attorney General at the office of the Attorney General in Hartford, or (2) sending a true and attested copy of the process, including the summons and complaint, by certified mail, return receipt requested, to the Attorney General at the office of the Attorney General in Hartford."

12492648

TOWN OF GLASTONBURY v. METROPOLITAN DISTRICT COMMISSION

Town of Glastonbury v. Metro. Dist. Comm'n

2018-03-06

SC 19843

201

212

179 A.3d 201

179

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:29.410267+00:00

Fastcase

TOWN OF GLASTONBURY v. METROPOLITAN DISTRICT COMMISSION

TOWN OF GLASTONBURY v. METROPOLITAN DISTRICT COMMISSION SC 19843 Supreme Court of Connecticut. Argued November 9, 2017 Officially released March 6, 2018 Jeffrey J. Mirman, with whom, on the brief, was Alexa T. Millinger, for the appellant (defendant). Proloy K. Das, with whom were Joseph B. Schwartz and Robert E. Kaelin, for the appellee (plaintiff). Palmer, Robinson, D'Auria, Mullins and Vertefeuille, Js. This appeal originally was argued before a panel of this court consisting of Justices Palmer, McDonald, Robinson, D'Auria, Mullins and Vertefeuille. Thereafter, Justice McDonald recused himself and did not participate in the consideration of this case.

5482

34641

PER CURIAM. The defendant in this declaratory judgment action, the Metropolitan District Commission, a quasi-municipal corporation that provides potable water to eight member and five nonmember towns in the greater Hartford area, appeals from the judgment rendered by the trial court in favor of the plaintiff, the town of Glastonbury. The plaintiff, one of the nonmember towns, brought this action, seeking a determination by the court that, prior to 2014, the defendant unlawfully had imposed surcharges on it and the other nonmember towns. Thereafter, the trial court denied the defendant's motion to strike the plaintiff's complaint on the ground that the plaintiff was required but failed to join the other nonmember towns as indispensable parties. While this action was pending, the legislature enacted No. 14-21 of the 2014 Special Acts (S.A. 14-21), which amended the defendant's charter by authorizing the defendant to impose a surcharge on nonmember towns in an amount not to exceed the amount of the customer service charge. Following the passage of S.A. 14-21, the defendant filed a motion to dismiss, claiming that the special act was retroactive and rendered the plaintiff's claim moot because it answered in the affirmative the question then pending before the court, namely, whether the defendant had the authority to impose a surcharge on nonmember towns. The trial court disagreed and denied the motion, concluding that S.A. 14-21 was not retroactive, and, therefore, it remained to be determined whether the plaintiff was entitled to relief because the surcharges imposed prior to the passage of the special act were unlawful. Thereafter, the parties filed motions for summary judgment, and the trial court concluded that the surcharges imposed on the plaintiff prior to the passage of S.A. 14-21 were unlawful, the plaintiff's claim was not barred by the equitable doctrine of laches, and the plaintiff's claim was justiciable because the plaintiff was entitled to reimbursement for the payments it had made to the defendant on account of the unlawful surcharges. In accordance with these conclusions, the trial court granted the plaintiff's motion for summary judgment and denied the defendant's motion for summary judgment. On appeal, the defendant claims that the trial court incorrectly determined that the plaintiff's claim was justiciable and not rendered moot by S.A. 14-21 or barred by the doctrine of laches. After examining the record and briefs and considering the arguments of the parties, we are persuaded that the judgment of the trial court should be affirmed. The issues raised by the parties in their motions for summary judgment were resolved properly in the thoughtful and comprehensive memorandum of decision filed by the trial court. Because that memorandum of decision also fully addresses the arguments raised in the present appeal, we adopt the trial court's well reasoned decision as a statement of the facts and the applicable law on those issues. See Glastonbury v. Metropolitan District Commission , Superior Court, judicial district of Hartford, Docket No. HHD-CV-14-6049007-S, 2016 WL 3179757 (May 12, 2016) (reprinted at 328 Conn. 245, 330, 177 A.3d 1157[2018] ). It would serve no useful purpose for us to repeat that discussion here. See, e.g., Tzovolos v. Wiseman , 300 Conn. 247, 253-54, 12 A.3d 563 (2011). The judgment is affirmed. APPENDIX This case concerns an action brought pursuant to General Statutes § 52-29 by the plaintiff, the town of Glastonbury, against the defendant, the Metropolitan District Commission, on February 21, 2014. The plaintiff seeks a declaratory judgment to establish that a surcharge imposed by the defendant on the plaintiff and other nonmember towns for water usage prior to October 1, 2014, was illegal. The complaint sets forth the following allegations. The plaintiff is a municipal corporation organized and existing under the laws of the state of Connecticut. The defendant is a quasi-municipal corporation, established in 1929 by the Connecticut General Assembly. See 20 Spec. Acts 1204, No. 511 (1929). The defendant provides drinking water, water pollution control, mapping and household hazardous waste collection to eight member towns. In addition, the defendant provides drinking water to residents and businesses in portions of Farmington, Glastonbury, East Granby, Portland and South Windsor. These towns are referred to as "[n]on-member" towns. Customers in the nonmembers towns receive only drinking water from the defendant. Approximately 9000 customers are located in the nonmember town areas. The plaintiff is a customer of the defendant. The plaintiff receives and pays for drinking water at various town facilities and properties. The powers, duties, and obligations of the defendant are compiled in the Charter of the Metropolitan District (charter). When authorizing the defendant to provide water to nonmember towns in 1931, the General Assembly expressly mandated that the defendant must charge customers in nonmember towns "rates uniform with those charged within said district ." 21 Spec. Acts 328, No. 358 (1931). The only additional charge the General Assembly authorized during this change was that the cost of pipe construction between the district and the nonmember town would be paid by the nonmember town. The plaintiff asserts that the defendant currently imposes a "nonmember surcharge" on recipients of water in nonmember towns, including the plaintiff. In 2011, the defendant added a nonmember surcharge of $52.68 to the annual bill of all water recipients in nonmember towns, irrespective of how much water, if any, was used. The surcharge was subsequently increased in 2013 to $423. In 2014, the amount was reduced to $198.96 after complaints from various nonmember towns. According to the defendant, it intended to offset the 2014 surcharge reduction by extending the time period during which it would be paid to twenty-five years. The plaintiff further asserts that, although the defendant's representatives have stated that the addition of the foregoing surcharges reflect costs associated with capital improvements necessary to provide or maintain water service to each particular nonmember town, other information from the defendant has indicated that the surcharges in fact were an attempt to recapture district wide costs long ago incurred for capital improvements to the defendant's water infrastructure, beyond those relating to providing or maintaining water service to a particular community. The plaintiff asserts that the General Assembly has not authorized the defendant to impose such surcharges, that the defendant does not have any legislative authority to impose these nonmember surcharges on the plaintiff, and, therefore, the surcharges are unlawful. Pursuant to § 52-29, the plaintiff seeks a declaratory judgment ruling that the defendant has acted unlawfully, exceeded its legislative authority, and acted to the detriment of the plaintiff. On May 7, 2014, the Senate passed No. 14-21 of the 2014 Special Acts (S.A. 14-21), amending the charter to allow for surcharges. On August 13, 2015, the plaintiff filed a motion for summary judgment on the ground that the defendant, as a matter of law, exceeded its statutory authority by imposing a nonmember surcharge on the plaintiff and cannot establish any of its special defenses. On December 11, 2015, the defendant filed a memorandum in opposition. That same day, the defendant filed its own motion for summary judgment on the ground that there is no justiciable case or controversy between the parties. On February 2, 2016, the plaintiff filed a brief in reply to the defendant's opposition and in opposition to the defendant's motion. The defendant filed a reply on February 10, 2016. The parties submitted evidence in support of their own motions and in opposition to the motions against them, which will be discussed below as necessary. Oral argument was held on the motions on February 11, 2016. I THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT The defendant's motion for summary judgment is premised on the ground that the plaintiff's claim is moot and otherwise nonjusticiable. Because this motion implicates the court's subject matter jurisdiction, it is addressed first. "Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable.... Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . (2) that the interests of the parties be adverse . (3) that the matter in controversy be capable of being adjudicated by judicial power . and (4) that the determination of the controversy will result in practical relief to the complainant.... A case is considered moot if [the trial] court cannot grant . any practical relief through its disposition of the merits ." (Citations omitted; footnote omitted; internal quotation marks omitted.) Valvo v. Freedom of Information Commission , 294 Conn. 534, 540-41, 985 A.2d 1052 (2010). The defendant argues that there is no practical or effective relief being sought by the plaintiff, or which could otherwise be awarded, because members of the plaintiff's town council were unable to identify the plaintiff's objectives in seeking a declaratory judgment. Additionally, the defendant argues that S.A. 14-21 clarified and affirmed the defendant's right to impose a nonmember surcharge on the plaintiff, such that the defendant, by imposing such surcharges prior to that legislation, was acting within its statutory authority. In opposition, the plaintiff argues there is practical relief available to it and that the statements of the town council members cannot be interpreted as an admission to the contrary. The defendant's argument concerning mootness arises from S.A. 14-21, which provides in relevant part: "The Metropolitan District is authorized to supply water to any town or city that is not a member town or city of the district, any part of which is situated not more than twenty miles from the state capitol at Hartford, or to the inhabitants thereof, or to any state facility located within such area, upon such terms as may be agreed upon, but all other sources belonging to any such town or city shall be developed by such consumer or made available for development by said district. Except as otherwise agreed between the district and a customer, the district shall supply water at water use rates and with customer service charges uniform with those charged within said district. Any nonmember town surcharge imposed on any such customer or inhabitant shall not exceed the amount of the customer service charge. The cost of constructing the pipe connection between the district and such town or city and the cost for capital improvements within such town or city shall be paid by such town or city or by the customers inhabiting such town or city. The cost of constructing the pipe connection between the district and any such state facility shall be paid by the state of Connecticut. Nothing herein shall authorize The Metropolitan District to supply any water in competition with any water system in any town or city, except by agreement." (Emphasis added.) The defendant raised a similar argument claiming mootness in a motion to dismiss, which was rejected by the court in a memorandum of decision filed on October 10, 2014. See Glastonbury v. Metropolitan District Commission , Superior Court, judicial district of Hartford, Docket No. HHD-CV-14-6049007-S (October 10, 2014) (59 Conn. L. Rptr. 108, 2014 WL 6427459). Despite the defendant's suggestion to the contrary, there is no basis for the court to revisit its previous ruling that S.A. 14-21 is not a clarifying amendment and, therefore, is not retroactive. As previously stated in the October 10, 2014 memorandum of decision, nothing in the 2014 amendment or its legislative history evidences a clear intent that the surcharge component be applied retroactively. "A statute should not be applied retroactively to pending actions unless the legislature clearly expressed an intent that it should be so applied." McNally v. Zoning Commission , 225 Conn. 1, 9, 621 A.2d 279 (1993) ; accord New Haven v. Public Utilities Commission , 165 Conn. 687, 726, 345 A.2d 563 (1974). "It is a rule of construction that statutes are not to be applied retroactively to pending actions, unless the legislature clearly expresses an intent that they shall be so applied.... 'The passage or repeal of an act shall not affect any action then pending.' General Statutes § 1-1 [u]." (Citations omitted.) New Haven v. Public Utilities Commission , supra, at 726, 345 A.2d 563. The defendant's remaining argument in support of its motion for summary judgment concerns a different matter of justiciability, namely, whether there is any practical or effective relief available to the plaintiff. Although this argument was also rejected by the court in its October 10, 2014 memorandum of decision, nonetheless, for the sake of completeness, the court further articulates as follows. "The test for determining mootness is not [w]hether the [plaintiff] would ultimately be granted relief . The test, instead, is whether there is any practical relief this court can grant the [plaintiff]." (Internal quotation marks omitted.) In re David L. , 54 Conn. App. 185, 189, 733 A.2d 897 (1999). Thus, while practical relief may be difficult to articulate or implement, if there is any practical relief available, then the court may exercise jurisdiction. See Pamela B. v. Ment , 244 Conn. 296, 313, 709 A.2d 1089 (1998) ("specter of difficulties in crafting 'practical relief' " did not bar court's assumption of jurisdiction). The plaintiff is seeking a declaration by the court that certain surcharges imposed by the defendant were unlawful. The plaintiff is not presently seeking damages and is not obligated to do so. See General Statutes § 52-29 (a) ; see also England v. Coventry , 183 Conn. 362, 364, 439 A.2d 372 (1981) (Superior Court has subject matter jurisdiction over suits for declaratory relief despite adequacy of other legal remedies). There is no question that if the surcharges are unlawful, then the plaintiff can demonstrate damages for those years the surcharges were imposed. It may be that the plaintiff has not articulated the specific legal theory under which it would recover those damages, and it is uncertain whether the plaintiff will seek to recover those damages at all. This does not mean, however, that as a matter of law, there is no practical relief available to the plaintiff. See, e.g., Memphis Light, Gas & Water Division v. Craft , 436 U.S. 1, 8-9, 98 S. Ct. 1554, 56 L.Ed. 2d 30 (1978) ("[a]lthough we express no opinion as to the validity of respondents' claim for damages, that claim is not so insubstantial or so clearly foreclosed by prior decisions that this case may not proceed" [footnote omitted] ). Rather, allegations of ascertainable damages in the form of a wrongfully imposed surcharge indicate that practical relief may be available. Finally, as this court has previously quoted in its October 10, 2014 memorandum of decision, "[a] plaintiff who wins a declaratory judgment may go on to seek further relief, even in an action on the same claim which prompted the action for a declaratory judgment. This further relief may include damages which had accrued at the time the declaratory relief was sought ." (Internal quotation marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light & Power Co. , 300 Conn. 325, 361, 15 A.3d 601 (2011) (Palmer , J. , dissenting), quoting 1 Restatement (Second), Judgments § 33, comment (c), p. 335 (1982). Accordingly, the court finds that the plaintiff's action for declaratory relief is justiciable. Thus, the defendant's motion for summary judgment must be denied. II THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT The plaintiff's motion for summary judgment asks the court to determine, as a matter of law, that the surcharges imposed by the defendant from 2011 to 2014 were unlawful. "Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership , 311 Conn. 301, 313, 87 A.3d 546 (2014). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America , 310 Conn. 304, 319-20, 77 A.3d 726 (2013). The plaintiff argues that, at the time the defendant imposed the surcharges, the General Assembly had not authorized the defendant to recover general or capital costs arising from maintenance of and improvements to the defendant's properties, facilities, and water supply infrastructure. Thus, the surcharges from 2011 to 2014 were unlawful. In its opposition, the defendant argues that it always possessed the authority to impose the surcharge. The defendant "is a political subdivision of the state, specially chartered by the Connecticut General Assembly for the purpose of water supply, waste management and regional planning." Martel v. Metropolitan District Commission , 275 Conn. 38, 41, 881 A.2d 194 (2005). "It is settled law that as a creation of the state, a municipality has no inherent powers of its own.... A municipality has only those powers that have been expressly granted to it by the state or that are necessary for it to discharge its duties and to carry out its objects and purposes.... This principle applies with equal force to quasi-municipal corporations." (Citations omitted; internal quotation marks omitted.) Wright v. WoodridgeLake Sewer District , 218 Conn. 144, 148, 588 A.2d 176 (1991). In order to determine what powers were granted to the defendant by the state, it is appropriate to examine the legislation that undergirded the defendant's claimed authority. Prior to the passage of S.A. 14-21, the General Assembly provided the defendant with the following powers: "The Metropolitan District is authorized to supply water, at rates uniform with those charged within said district, to any town or city, any part of which is situated not more than twenty miles from the state capitol at Hartford, or to the inhabitants thereof, or to any state facility located within such area, upon such terms as may be agreed upon, but all other sources belonging to any such town or city shall be developed by such consumer or made available for development by said district. The cost of constructing the pipe connection between the district and such town or city shall be paid by such town or city. The cost of constructing the pipe connection between the district and any such state facility shall be paid by the state of Connecticut. Nothing herein shall authorize The Metropolitan District to supply any water in competition with any water system in any town or city, except by agreement." Special Acts 1977, No. 77-62. Under certain circumstances the defendant was additionally empowered to assess additional costs pursuant to 25 Spec. Acts 1018, No. 272 (1949), which provided: "The Metropolitan District is authorized to assess the cost of laying water mains in streets or highways and the cost of laying or replacing water service pipes upon public or private property upon the land and buildings benefitted thereby in any town which is not a member of said district, but in which it shall have the right either under the terms of its charter or otherwise to supply or distribute water, and to secure payment thereof by lien. Such assessment and lien rights may be exercised by the water bureau of said district under procedure substantially similar to that for like assessments made upon property located within the territorial limits of said district." Thus, the defendant's authorization to impose fees on the plaintiff was limited to the following: (1) a charge for supplying water; (2) a charge for constructing the pipe connection between the district and the municipality; and (3) a charge for laying water mains and for laying or replacing water service pipes upon the land and buildings benefitted thereby. Nevertheless, beginning in 2011, the plaintiff saw a marked increase in the amount of the surcharge. In a February 15, 2013 letter from Scott Jellison, Deputy Chief Executive Officer of the defendant, the complained of increase was explained as reflecting the "fixed costs associated with producing drinking water," such as "watershed lands" and "treatment plants." The evidence indicates that, at least as of the time of the increase, the surcharge was not confined to the cost of laying and repairing water service pipes and water mains to benefit particular customers. Rather, it encompassed the defendant's costs in maintaining the entire water utility infrastructure, spread among all of its customers in nonmember towns. Moreover, the General Assembly authorized the defendant to recover costs associated with the construction and maintenance of water pipes only from those customers whose property was directly benefitted from those pipes. Because the General Assembly did not authorize the defendant to recover its water utility infrastructure or capital improvement costs, the surcharge included costs that the defendant was not authorized to impose upon the plaintiff, and, therefore, it was illegal as a matter of law. In light of the determination that the surcharge was illegal as a matter of law, the defendant is left to rely on its special defenses. As a bar to judgment, the defendant raises the defense of laches. "A conclusion that a plaintiff has been guilty of laches is one of fact for the trier and not one that can be made [as a matter of law], unless the subordinate facts found make such a conclusion inevitable . The defense of laches, if proven, bars a plaintiff from seeking equitable relief . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant.... The mere lapse of time does not constitute laches . unless it results in prejudice to the [opposing party] . as where, for example, the [opposing party] is led to change his position with respect to the matter in question." (Citations omitted; internal quotation marks omitted.) Caminis v. Troy , 112 Conn. App. 546, 552, 963 A.2d 701 (2009), aff'd, 300 Conn. 297, 12 A.3d 984 (2011). In support of the defense of laches, the defendant notes that the complained of surcharge on nonmember towns goes back to 1942. The defendant argues that the passage of almost seventy years between the first surcharge and the plaintiff's first objection in 2011 constitutes an unreasonable delay that has prejudiced the defendant. The plaintiff counters that its claim is limited to a declaration regarding the surcharges from 2011 to 2014 and does not concern the surcharges prior to 2011. Consequently, the defendant is not prejudiced by being asked to address such recent concerns. Finally, the plaintiff contends that its delay in complaining about the surcharge was not unreasonable because the surcharges before 2011 were for only nominal amounts, and the surcharges thereafter reflect substantial increases, which prompted the plaintiff to investigate the nature of the surcharge. The defendant has submitted evidence indicating that the plaintiff became a nonmember town in 1941 and that the nonmember town surcharge was first imposed in 1942. The surcharge was increased in the years 1949 and 1955, and then annually between 2006 and 2014. In the period from 2006 to 2011, the amount of the quarterly surcharges wavered between $10 and $13. The quarterly surcharge increased from $13.17 in 2011 to $39.54 in 2012. It jumped to $105.75 in 2013 before decreasing to $49.74 in 2014. The plaintiff did not complain about the surcharge until 2012. The defendant maintains that the surcharge provided stability and the foundation to equitably distribute the cost of maintenance and improvements to the system and that it is prejudiced by the plaintiff's untimely pursuit of this claim. According to the defendant, had the plaintiff made a complaint earlier, the defendant could have addressed it by making changes to the way customers were charged for water. Upon review of the evidence submitted by the defendant in support of its special defense of laches, the court finds, under all the circumstances, it was not unreasonable for the plaintiff to have delayed challenging the surcharge until 2014. For most of the time that the surcharge was in place, it was for a small amount. After remaining relatively stable for many years, it increased by nearly 300 percent in 2012 and nearly 800 percent in 2013. It was the sharp increase that prompted the plaintiff to complain about the surcharge and to investigate its origins. Upon concluding that there was no legal basis for the surcharge, the plaintiff swiftly set to challenge the defendant's interpretation of its assessment authority under the charter. Communications thereafter indicated that the recent increase in the surcharge included costs that were not within the defendant's power to impose. Additionally, other than its argument that an earlier complaint may have led to earlier action, the defendant has failed to demonstrate how it was led to change its position with respect to the imposition of the surcharge, as is necessary for a showing of prejudice. Therefore, based on the subordinate facts, the evidence presented by the defendant does not support a special defense of laches. Therefore, the special defense of laches does not bar the plaintiff's motion for summary judgment. III CONCLUSION The General Assembly did not provide the defendant with any express authority to impose a nonmember town surcharge until the enactment of S.A. 14-21, which amended the defendant's governing legislation. As discussed at length in the court's earlier decision denying the defendant's motion to dismiss, S.A. 14-21 does not apply retroactively so as to sanction the defendant's imposition of the nonmember town surcharge. Likewise, as noted elsewhere in the present memorandum of decision, S.A. 14-21 is not a confirmation or clarification of any implicit authority that the defendant already possessed. The defendant has otherwise failed to offer an interpretation of the governing legislation that supports its contention that it possessed the authority to impose the surcharge. Upon review of the grants of authority made to the defendant, the court is compelled to conclude that the surcharge, which encompassed general costs that the defendant was not expressly empowered to impose upon the plaintiff, was unlawful. For all the foregoing reasons, the court finds that (1) the plaintiff's action for declaratory relief is justiciable, (2) the surcharge imposed by the defendant on the plaintiff was illegal, and (3) none of the claimed special defenses serves to bar judgment. Accordingly, the defendant's motion for summary judgment is hereby denied and the plaintiff's motion for summary judgment is hereby granted. The defendant appealed to the Appellate Court from the judgment of the trial court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. Number 14-21, § 1, of the 2014 Special Acts provides in relevant part: "The Metropolitan District is authorized to supply water to any town or city that is not a member town or city of the district, any part of which is situated not more than twenty miles from the state capitol at Hartford, or to the inhabitants thereof, or to any state facility located within such area, upon such terms as may be agreed upon . Except as otherwise agreed between the district and a customer, the district shall supply water at water use rates and with customer service charges uniform with those charged within said district. Any nonmember town surcharge imposed on any such customer or inhabitant shall not exceed the amount of the customer service charge. The cost of constructing the pipe connection between the district and such town or city and the cost for capital improvements within such town or city shall be paid by such town or city or by the customers inhabiting such town or city. The cost of constructing the pipe connection between the district and any such state facility shall be paid by the state of Connecticut. Nothing herein shall authorize The Metropolitan District to supply any water in competition with any water system in any town or city, except by agreement." We note that the trial court's memorandum of decision on the parties' motions for summary judgment incorporated by reference that court's prior ruling on the defendant's motion to dismiss, in which the court rejected the defendant's contention that the plaintiff's claim was rendered moot by S.A.14-21. See Glastonbury v. Metropolitan District Commission , Superior Court, judicial district of Hartford, Docket No. HHD-CV-14-6049007-S (October 10, 2014) (59 Conn. L. Rptr. 108, 2014 WL 6427459). The defendant also claims that the trial court improperly denied its motion to strike because the plaintiff failed to join as indispensable parties the approximately 9000 individual customers in the nonmember towns. The defendant did not claim before the trial court that the 9000 individual customers in the nonmember towns were indispensable parties but claimed only that the nonmember towns themselves were indispensable parties. We decline to address the defendant's unpreserved challenge to the trial court's ruling on the motion to strike. See, e.g., Safford v. Warden , 223 Conn. 180, 189-90, 612 A.2d 1161 (1992) ("our general rule [is] that legal claims not raised at trial are not cognizable on appeal"). Member towns are Bloomfield, East Hartford, Hartford, Newington, Rocky Hill, West Hartford, Wethersfield and Windsor. General Statutes § 52-29 (a) provides: "The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment." The relevant portions of the letter provided as follows: "Generally, water bills for customers in our member and [nonmember] towns are the same with the exception of the [Nonmember] Town (NMT) charge. Per [the defendant's] ordinances, [nonmember] town customers may also pay a Special Capital Improvement Surcharge to reimburse the [defendant] for the cost of capital improvements necessary to provide or maintain water service to their specific community. These charges are applied, in whole or in part, to fairly distribute and offset operational, maintenance and infrastructure improvement costs which cannot be passed on to our member towns. "As a nonprofit municipal corporation, the [defendant] bases its water rates and projected revenue on anticipated consumption for the year in order to recover costs to produce drinking water. However, the fixed cost to maintain the water utility infrastructure, such as watershed lands, treatment plants, and pipes, typically increases annually, as we are subject to the same increases in price that consumers experience for electricity, fuel, natural gas, chemicals and other commodities. As with most water utilities across the country, declining water consumption makes it impossible to predict revenue for budgeting purposes to recover annual operating cost. Due to this decline, and upon recommendation of our rating agencies, the fixed costs associated with producing drinking water were shifted to the Water Customer Service Charge and NMT charges. These charges provide a more stable source of revenue than the Water Consumption Charge and are not subject to the same environmental and economic facts that affect consumption." The two other special defenses asserted by the defendant are either not viable or contingent on the defense of laches. The defendant's third special defense, that the plaintiff lacks standing to bring an action on behalf of the defendant's other customers, concerns an issue of subject matter jurisdiction. The plaintiff argues that it is not acting on behalf of the defendant's other customers and concedes that the court may limit the granting of declaratory relief to the plaintiff. This court has already determined that the plaintiff has standing to bring this action in its own name. Therefore, the third special defense does not bar summary judgment in favor of the plaintiff. The fourth special defense of equitable jurisdiction is derivative of the laches defense such that it rises and falls with the validity or invalidity of the laches defense.

12492632

David WEAVING v. COMMISSIONER OF CORRECTION

Weaving v. Comm'r of Corr.

2017-12-12

AC 39566

1272

1278

179 A.3d 1272

179

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.410267+00:00

Fastcase

David WEAVING v. COMMISSIONER OF CORRECTION

David WEAVING v. COMMISSIONER OF CORRECTION AC 39566 Appellate Court of Connecticut. Argued October 4, 2017 Officially released December 12, 2017 Samuel Allan Greenberg, assigned counsel, for the appellant (petitioner). Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Marc G. Ramia, senior assistant state's attorney, for the appellee (respondent). Keller, Elgo and Flynn, Js.

3617

22979

ELGO, J. The petitioner, David Weaving, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner contends that the habeas court abused its discretion by denying his petition for certification to appeal and by rejecting his claims that counsel at both his criminal trial and his first habeas proceeding rendered ineffective assistance. Having thoroughly reviewed the record, we conclude that the habeas court properly denied the petition for certification to appeal and, thus, dismiss the appeal. The facts underlying the petitioner's criminal conviction are set forth in this court's decision on his direct appeal. "Shortly before 7 p.m. on April 27, 2007, the [petitioner] was driving his motor vehicle south on Route 69 in Prospect. In Prospect, Route 69 is a residential, two lane road, with one northbound and one southbound lane of travel. Although it was a foggy evening and the road surface was damp, the [petitioner] was traveling at approximately 80 miles per hour, well in excess of the posted speed limit of 45 miles per hour. As he crested a small hill near Radio Tower Road, the [petitioner] came upon another car traveling in his lane at or below the posted speed limit. Approaching a permitted passing zone, the [petitioner] accelerated and began to cross over into the northbound lane in order to pass the slower moving vehicle. Just as he was doing so, the [petitioner] noticed a young boy standing on the pedals of a bicycle near the center of the northbound lane. The boy was dressed in dark clothing, the bicycle he was riding was black and there was no headlamp on the bicycle. The [petitioner] immediately applied his brakes and attempted to steer back into the southbound lane in an effort to avoid hitting the boy. The [petitioner's] speed, however, coupled with the conditions of the roadway, made avoiding the boy impossible. The [petitioner's] vehicle collided with the bicycle, throwing the boy onto the hood and windshield and tossing debris along the side of the road. Despite the efforts of emergency medical personnel and physicians, the boy died from his injuries. The [petitioner] subsequently was arrested and charged with manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3) and manslaughter in the second degree in violation of [General Statutes] § 53a-56(a)(1)." State v. Weaving , 125 Conn. App. 41, 43-44, 6 A.3d 203 (2010), cert. denied, 299 Conn. 929, 12 A.3d 569 (2011). At the petitioner's criminal trial, "a central tenet of the defense was that the [petitioner] was traveling at or near the posted speed limit of 45 miles per hour as he entered the northbound lane to pass the slower moving vehicle in front of him. Both parties presented expert testimony as to the [petitioner's] speed moments before the collision, focusing particularly on the time when the [petitioner] first applied his brakes. The state's expert, a specialist in accident reconstruction, testified that, according to his forensic and mathematical analyses, the [petitioner] 'was traveling at a minimal speed of 83 miles per hour.' This determination was based primarily on the length of skid marks caused by the [petitioner's] sudden braking, which measured over 360 feet, but also took account of the condition of the roadway at the time of the accident. The defense offered the expert testimony of a behavioral psychologist trained in principles of human reaction and response time. During recross-examination, the defense expert conceded that the length of the skid marks was consistent with a finding that the [petitioner] was traveling 83 miles per hour at the moment when he began braking." (Footnote omitted.) Id., at 44-45, 6 A.3d 203. At the conclusion of trial, the jury found the petitioner not guilty of manslaughter in the first degree and guilty of manslaughter in the second degree. This court affirmed that judgment of conviction on direct appeal. Id., at 57, 6 A.3d 203. On August 31, 2009, the petitioner commenced his first habeas action, with Attorney Andrew J. Cates serving as habeas counsel. His operative petition for a writ of habeas corpus advanced nineteen claims of ineffective assistance on the part of the petitioner's criminal trial counsel, Attorney Cheryl Heffernan. In particular, the petitioner alleged that Heffernan was deficient in failing to "properly vet the credentials" of both "the human factors expert whose testimony she presented at trial," and "the accident reconstructionist retained by her" to determine whether they were "truly qualified to render opinions which contradicted and/or impeached the testimony of the State's accident reconstructionist ." The petition also alleged that Heffernan "failed to instruct her accident reconstructionist to undertake an independent investigation into the accident, the conditions of the petitioner's motor vehicle, and the like ." A habeas trial followed, at which Heffernan testified. She explained that she had prior experience with accident reconstruction cases and was familiar with the techniques and methods utilized therein. Heffernan testified that, in handling such cases, she necessarily relies on experts. As she put it, "I am a lawyer.... I'm not an engineer. I'm not a reconstructionist. I have to rely on my experts." Prior to the petitioner's criminal trial, Heffernan obtained authorization from the state to procure experts on his behalf. She testified that she initially sought the assistance of Richard Hermance, an accident reconstruction expert, due to his solid reputation, and the fact that her law partner had utilized him "a number of times [and] found him to present very well [with] a tremendous amount of credibility and professionalism and skill ." After securing his services, Heffernan furnished Hermance with copies of all the evidence from the scene of the accident, including police reports, photographs and statements. Heffernan testified that, after Hermance reviewed the evidence, he notified her that he could not offer testimony to challenge the state's calculations with respect to the speed of the petitioner's vehicle. Heffernan nevertheless "talked to him numerous times and tried to see if [she] could work something out" to present his expert testimony. Although those efforts were unsuccessful, Hermance did suggest the retention of a human factors expert as the "best way" to proceed with the petitioner's defense. Heffernan then contacted Patrick McGuire, a human factors expert, who provided expert testimony at the petitioner's criminal trial that, irrespective of the speed of the petitioner's vehicle, the accident could not have been avoided. Heffernan's trial strategy was to rely on that testimony to establish that "regardless of the speed of [the] vehicle, that [the petitioner] could not have avoided striking this child because the child had been in the road improperly and it was a bad situation." In so doing, Heffernan sought to negate the elements of extreme indifference to human life and recklessness, which are essential to the charged offenses under § 53a-55(a)(3) and 53a-56(a)(1), respectively. As she testified, "[o]ur argument was that the speed is not what caused the accident. It was the circumstances that existed that were beyond [the petitioner's] control. He could not have reacted in time regardless of how fast he was going.... [T]hat's where the reaction time was relevant. So, [McGuire] was there to testify that [if the petitioner had been] driving at forty-five miles an hour, which . was the speed limit on that road, that he still would have hit this child." In addition, Heffernan confirmed in her habeas testimony that she consulted with Hermance, her accident reconstruction expert, in challenging the expert evidence offered by the state. She testified, and the record confirms, that a Porter hearing was held at her behest prior to the petitioner's criminal trial, at which the opinions offered by the state's accident reconstruction expert were scrutinized. At the conclusion of that hearing, the trial court concluded that the methodology of the state's expert was valid. In its memorandum of decision on the petitioner's first habeas action, the court determined, as to all nineteen allegations of ineffective assistance, that the petitioner had not established "that he was prejudiced in any way." The court also rejected the petitioner's contention that Heffernan was deficient in failing to properly vet the credentials of McGuire and Hermance. The court then addressed the petitioner's claim that Heffernan failed to instruct Hermance to perform an independent investigation of the accident, stating in relevant part: "[T]he court finds [that] [t]he petitioner has failed to prove any prejudice because the testimony by counsel was that after she consulted with her expert about the calculations and evidence and diagrams that she presented, the expert indicated [that he] would not be able to challenge the results of the state police. [Heffernan] also indicated that she and her investigator both went out and rechecked the measurements . that were provided by the . state police and the various diagrams, and the court took that testimony reasonably to indicate that since she raised no challenge, that she and her investigator also must have come up with similar or the same calculations.... [T]he petitioner has failed to present-and again, it's their affirmative obligation to provide and present evidence here that, if that evidence was presented, there would have been some different or more favorable result; the petitioner has failed to do that or to present that evidence, so either-again, for the reason that the petitioner has failed to present any evidence, the court finds the claim to be abandoned and it is dismissed. The small amount of evidence that was presented here all indicated that counsel had consulted thoroughly with her expert witness and simply was not able to get the results that the petitioner wanted, and the court finds that . there was no showing of deficient performance in counsel's respect on that issue." Weaving v. Warden , Superior Court, judicial district of Tolland, Docket No. CV-09-4003183-S, 2012 WL 6965414, *2 (October 2, 2012). In addition, the court addressed certain claims regarding Heffernan's investigation of the accident reconstruction prepared by the state. In concluding that those claims were without merit, the court noted that "in all of these issues or questions regarding the troopers and their qualifications . [Heffernan] filed and litigated an entire Porter hearing, and if that doesn't seek to call into question the qualifications and conclusions raised by the state's expert witness, I don't know what does. I mean, that's a claim by counsel that says this is junk science or these people aren't qualified to testify to the conclusions they're giving [and should not be admitted into evidence]; she litigated that motion, the court denied the motion. And so, going all the way back to the Porter hearing, the court frankly finds that it's [unsure] what else the petitioner claims counsel should have done; she sought to keep the testimony, frankly, out of trial, and the court overruled that after a lengthy hearing on the officer's qualifications and the conclusions he reached. And so, that's an additional basis why any and all of the claims related to counsel's failure to properly cross-examine or question the state's expert witnesses and the police officers, who testified about accident reconstruction, have failed to be proven." Id., at *4. Accordingly, the court denied the petition for a writ of habeas corpus. The petitioner did not appeal from that judgment. The petitioner commenced a second habeas action in 2013. His amended petition for a writ of habeas corpus contained two counts of ineffective assistance. The first alleged that Heffernan was deficient in failing to present the testimony of an accident reconstruction expert at his criminal trial. In the second count, the petitioner alleged that Cates was deficient in failing to advance that claim in the first habeas action. At the subsequent habeas trial, the petitioner presented the testimony of only one expert witness, Kent E. Boots, an accident reconstructionist from California. On the basis of certain assumptions that he made regarding the petitioner's vehicle at the time of the accident, Boots opined that its speed "at the area of impact was somewhat less than the . conclusion that the state police . came to." Utilizing his own friction value, Boots estimated that the petitioner's vehicle was "travelling approximately forty-nine miles per hour at impact." On cross-examination, Boots acknowledged, consistent with McGuire's expert testimony at the petitioner's criminal trial, that the accident would have occurred whether the vehicle was travelling forty-nine or eighty-three miles per hour. Boots further noted that, at the criminal trial, the petitioner had testified that he could not see over or around the vehicle in front of him just prior to the accident, and that he made the decision to pass that vehicle without being able to see if there was a hazard ahead. For that reason, Boots opined that, irrespective of the speed of the petitioner's vehicle, it would have been impossible for the petitioner to perceive the boy in the road when he attempted to pass in the opposite lane. On the basis of his training and experience as both a law enforcement officer and an accident reconstructionist, Boots also opined that it was not safe for the petitioner to enter the opposite lane in such circumstances. By memorandum of decision filed July 25, 2016, the habeas court rejected the petitioner's claims. It stated: "[T]he dispositive flaw in the petitioner's accusation of legal incompetence by Attorney Heffernan is that she did, in fact, consult with an experienced and well-regarded accident reconstructionist, [Hermance], a person whom her law firm had utilized in other cases. Hermance reviewed the pertinent materials concerning the fatal accident and concluded that the state's expert opinion as to the petitioner's speed of about eighty-three miles per hour was correct. Based on that unfavorable conclusion, Attorney Heffernan chose to rely exclusively on the expert testimony of McGuire that the collision was inevitable even if the petitioner was traveling at the speed limit; i.e., speed did not contribute to causing the fatality. The petitioner presented no criminal defense expert who criticized Attorney Heffernan's decision. The court is unaware of any professional obligation of defense counsel to keep consulting with different experts until one can be found whose opinions comport with those desired by the defense.... Attorney Heffernan sought advice from an appropriate source. She acted reasonably in relying on that advice, especially because Hermance's opinions matched those of the state's accident reconstructionist. Her approach of utilizing, instead, the human factor specialist appears to this court to have been professionally sound and resourceful and even a bit ingenious. Certainly, this tactic met or exceeded the skill possessed by ordinarily competent defense lawyers. Consequently, the court determines that the petitioner has failed to satisfy his burden of proving, by a preponderance of the evidence, that Attorney Heffernan's representation" was deficient. In light of that determination, the court also rejected the claim of ineffective assistance on the part of Cates. The court therefore denied the petition for a writ of habeas corpus. The petitioner then filed a petition for certification to appeal to this court, which the habeas court denied, and this appeal followed. At the outset, we note that "[t]he standard of review and legal principles that govern our consideration of the petitioner's claims on appeal are well settled. The use of a habeas petition to raise an ineffective assistance of habeas counsel claim . was approved by our Supreme Court in Lozada v. Warden , 223 Conn. 834, 613 A.2d 818 (1992). In Lozada , the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296(a) includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to challenge the effectiveness of habeas counsel is through a habeas petition.... [T]he court explained that [t]o succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective.... As to each of those inquiries, the petitioner is required to satisfy the familiar two-pronged test set forth in Strickland v. Washington , [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]. First, the [petitioner] must show that counsel's performance was deficient.... Second, the [petitioner] must show that the deficient performance prejudiced the defense.... Unless a [petitioner] makes both showings, it cannot be said that the conviction . resulted from a breakdown in the adversary process that renders the result unreliable.... In other words, a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice ." (Emphasis in original; internal quotation marks omitted.) Abreu v. Commissioner of Correction , 172 Conn. App. 567, 574-75, 160 A.3d 1077, cert. denied, 326 Conn. 901, 162 A.3d 724 (2017). Our Supreme Court has characterized that task as a "herculean" one. Lozada v. Warden , supra, at 843, 613 A.2d 818. Having reviewed the record of the present appeal, we can improve little on the habeas court's well reasoned analysis. As this court previously has observed, "[a] trial attorney is entitled to rely reasonably on the opinion of an expert witness . and is not required to continue searching for a different expert." (Citation omitted.) Stephen S. v. Commissioner of Correction , 134 Conn. App. 801, 816, 40 A.3d 796, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012). Moreover, it is well established that when a criminal defense attorney consults with "an expert in a relevant field" who thereafter apprises counsel that he or she cannot provide favorable testimony, counsel is "entitled to rely reasonably on [that] opinion . and [is] not required to continue searching for a different expert." Id., at 817, 40 A.3d 796 ; see also Brian S. v. Commissioner of Correction , 172 Conn. App. 535, 544, 160 A.3d 1110 ("[t]he fact that the petitioner later was able to present testimony at his habeas trial from . a different expert, perhaps more specialized than [the expert originally consulted by his criminal trial counsel] . did not establish that counsel's performance was deficient for relying on [the original] expert opinion in preparation for the petitioner's criminal trial"), cert. denied, 326 Conn. 904, 163 A.3d 1204 (2017). As the United States Supreme Court has explained in the context of ineffective assistance of counsel claims, "[t]he selection of an expert witness is a paradigmatic example of the type of 'strategic choic[e]' that, when made 'after thorough investigation of [the] law and facts,' is 'virtually unchallengeable.' " Hinton v. Alabama , 571 U.S. 263, 134 S.Ct. 1081, 1089, 188 L.Ed.2d 1 (2014) ; accord Brian S. v. Commissioner of Correction , supra, 172 Conn. App. at 543-44, 160 A.3d 1110 (rejecting claim of deficient performance when trial counsel consulted with expert, made strategic decision not to present his testimony at trial or to seek another opinion, and "strategized that the best course of action" was alternate theory of defense); Bharrat v. Commissioner of Correction , 167 Conn. App. 158, 170, 143 A.3d 1106 (rejecting claim of deficient performance when trial counsel consulted with expert but ultimately "made the reasonable, strategic decision not to call an expert witness at the underlying criminal trial"), cert. denied, 323 Conn. 924, 149 A.3d 982 (2016) ; Stephen S. v. Commissioner of Correction , supra, 134 Conn. App. at 817, 40 A.3d 796 (emphasizing that "trial counsel is entitled to make strategic choices in preparation for trial"). The record in the present case indicates that, after consulting with an expert in accident reconstruction and utilizing his expertise to challenge the state's expert testimony in a pretrial Porter hearing, Heffernan made a reasonable, tactical decision to pursue an alternate theory of defense, rather than offering that expert's unfavorable testimony. The record also indicates that Heffernan's representation of the petitioner ultimately resulted in an acquittal on the most serious charge before the jury. We conclude that the petitioner has failed to demonstrate that Heffernan rendered deficient performance at his criminal trial. He has not established that Heffernan's conduct was not reasonably competent, or that it fell outside the range of competence displayed by lawyers with ordinary training and skill in the criminal law. Accordingly, the petitioner cannot prevail on his claims that his criminal trial counsel and his first habeas counsel rendered ineffective assistance. See Abreu v. Commissioner of Correction , supra, 172 Conn. App. at 583, 160 A.3d 1077 ("because the petitioner failed to establish that he had a viable claim of ineffective assistance of trial counsel, his assertion that his prior habeas counsel provided ineffective assistance by failing to raise that claim similarly lacks merit"). We therefore conclude that the court did not abuse its discretion by denying the petition for certification to appeal. See Lozada v. Deeds , 498 U.S. 430, 432, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991) ; Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). The appeal is dismissed. In this opinion the other judges concurred. In her testimony, Heffernan acknowledged that, aided by an investigator, she conducted her own inspection of the scene of the accident, and the skid marks from the petitioner's vehicle in particular. She nonetheless testified that, because the scene had changed since the date of the accident and the skid marks had faded, that investigation was of no value. See State v. Porter , 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998).

12511326

Cristiane M. ALMEIDA v. Renato ALMEIDA

Almeida v. Almeida

2019-06-25

AC 41312

28

37

213 A.3d 28

213

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:58:09.224733+00:00

Fastcase

Cristiane M. ALMEIDA v. Renato ALMEIDA

Cristiane M. ALMEIDA v. Renato ALMEIDA AC 41312 Appellate Court of Connecticut. Argued March 5, 2019 Officially released June 25, 2019 David R. Peck, Hartford, with whom, on the brief, was Brittany Wallace, for the appellant (defendant). Giovanna Shay, with whom, on the brief, were Ramona Mercado-Espinoza, Hartford, and Enelsa Diaz, for the appellee (plaintiff). Keller, Elgo and Bishop, Js.

3978

24909

ELGO, J. In this postdissolution matter, the defendant, Renato Almeida, appeals from the judgment of the trial court granting the motion for clarification filed by the plaintiff, Cristiane M. Almeida. On appeal, the defendant claims that the court improperly modified the dissolution judgment when it rendered its clarification. We agree and, therefore, reverse the judgment of the trial court. The following facts and procedural history are relevant to this appeal. The parties' marriage was dissolved on October 16, 2015. In its memorandum of decision, the court, Ficeto , J. , found, inter alia, that "[t]he defendant acquired four properties during the course of the marriage. The property at 409 Sigourney Street, Hartford [property], is where the parties made their home and the defendant currently resides. It is a three family home; the defendant resides in one unit and rents two. [The defendant] listed the value of [the property] at $ 144,000 on his financial affidavit. He alleges [that] he is only a 50 percent owner of [the property] and that his business partner owns 50 percent through a business entity known as Talyah Home Improvement, LLC.... All properties were purchased with cash. Counsel for the plaintiff inquired how the defendant was able to acquire the . properties with no loans or mortgages. [The defendant] testified that a sister brought him $ 100,000 from Brazil and that he used it as seed money for 'flipping' houses. He alleges [that] the money was his and that he had saved it in Brazil. He was unable to provide documentation relative to the $ 100,000. The defendant testified relative to his business entity, Talyah Home Improvement, LLC. There was no evidence introduced relative to either the limited liability [company] or its members. [The defendant] vaguely testified about his partner, who has been in Brazil for the past year. [The defendant] alleges that he deals with his partner's 'people.' A review of the defendant's tax returns for the years 2010, 2011, 2012, and 2014 show[s] no schedules related to income from a business entity known as Talyah Home Improvement, LLC. . The court does not find credible [the defendant's] recitation relative to his financial affairs." (Footnote in original.) As part of its judgment of dissolution, the court ordered, inter alia, that "[t]he defendant shall forthwith vacate and quitclaim to the plaintiff all interest in [the property]. [The] [p]laintiff shall thereafter be responsible for all expenses relating to said [property], including, but not limited to, real estate taxes, insurance, and utilities, and shall indemnify and hold the defendant harmless in regard to the same." Subsequently, on December 4, 2015, the defendant signed a quitclaim deed, assigning his rights and interest in the property to the plaintiff. On February 2, 2016, the parties entered into an agreement, which provided, in relevant part, that the "[p]laintiff will execute a substitution of agent and interim change of member for Talyah Home Improvement, LLC, and [the] defendant will file said documents and pay the associated filing fees to the Connecticut Secretary of State. This will allow [the] plaintiff to lawfully collect rents at [the property] going forward." On September 21, 2017, the plaintiff filed a motion for contempt in which she claimed: "1. On October 16, 2015, the court ordered the defendant to vacate and quitclaim to the plaintiff all interest in [the property]. 2. On December 4, 2015, the defendant quitclaimed to the plaintiff [the property]; however, it has come to the plaintiff's attention that there was another person on the deed of the property. 3. The plaintiff is now being sued by Domingos, Joelson, in care of Salatiel De Matos through a power of attorney.... 4. During the divorce proceedings, the defendant never stated that he was only [one-half] owner of the aforementioned property. 5. As a result, the plaintiff may have to sell the aforementioned property and [lose one half] of the equity in the home. 6. The defendant is in violation and in contempt of the court orders." On December 4, 2017, the plaintiff filed a postjudgment motion for clarification, in which she argued that "[c]larification of the [dissolution] judgment [was] necessary to determine if the court intended for the defendant to make whatever arrangements were necessary with his business partner in Brazil to transfer 'all interest' in the [property] to the plaintiff, or if it was the court's intention to award the plaintiff with a 50 percent interest in the property and/or [the limited liability company]." On December 5, 2017, the court, Nastri , J. , entered an order, which provided that: "1. Upon agreement of the parties, [the] plaintiff will withdraw the motion for contempt . and pursue the more appropriate motion for clarification filed [on] December 4, 2017. 2. The plaintiff's new motion will be calendared at a later date. It will be appropriate for Judge Ficeto to hear the plaintiff's new motion, as she was [the] judge who issued the judgment memorandum on October 16, 2015." On January 5, 2018, without the motion ever being calendared, as ordered by Judge Nastri, the court entered an order granting the plaintiff's motion for clarification. That order stated in relevant part: "The court noted in its factual findings of October 16, 2015, that it did not find the defendant . credible relative to the ownership of the [property]. The defendant produced no evidence relative to the ownership of the property. He testified vaguely about a limited liability [company] and a partner in Brazil. He alleged that the partner resided in Brazil, so he dealt with the alleged partner's representative. The court did not find the testimony credible. The court ordered that the defendant quitclaim 'all interest' to the plaintiff. The court intended that the plaintiff . acquire 100 percent interest in [the property] and be the sole owner of said property. The defendant is ordered to take the necessary measures to effectuate the terms of the judgment." From that decision, the defendant appeals. On appeal, the defendant claims that the court improperly modified the dissolution judgment when it rendered its clarification order. In response, the plaintiff contends that the court's order was a proper clarification of its original judgment. We agree with the defendant. We begin by setting forth our standard of review and relevant legal principles. "It is well established that [t]he court's judgment in an action for dissolution of a marriage is final and binding [on] the parties, where no appeal is taken therefrom, unless and to the extent that statutes, the common law or rules of [practice] permit the setting aside or modification of that judgment. Under Practice Book [§ 17-4 ], a civil judgment may be opened or set aside . [when] a motion seeking to do so is filed within four months from the date of its rendition.... Absent waiver, consent or other submission to jurisdiction, however, a court is without jurisdiction to modify or correct a judgment, in other than clerical respects, after the expiration of [that four month period] . "Even beyond the four month time frame set forth in Practice Book § 17-4, however, courts have continuing jurisdiction to fashion a remedy appropriate to the vindication of a prior . judgment . pursuant to [their] inherent powers . When an ambiguity in the language of a prior judgment has arisen as a result of postjudgment events, therefore, a trial court may, at any time, exercise its continuing jurisdiction to effectuate its prior [judgment] . by interpreting [the] ambiguous judgment and entering orders to effectuate the judgment as interpreted . In cases in which execution of the original judgment occurs over a period of years, a motion for clarification is an appropriate procedural vehicle to ensure that the original judgment is properly effectuated.... "Although a trial court may interpret an ambiguous judgment . a motion for clarification may not . be used to modify or to alter the substantive terms of a prior judgment . and we look to the substance of the relief sought by the motion rather than the form to determine whether a motion is properly characterized as one seeking a clarification or a modification.... "In order to determine whether the trial court properly clarified ambiguity in the judgment or impermissibly modified or altered the substantive terms of the judgment, we must first construe the trial court's judgment. It is well established that the construction of a judgment presents a question of law over which we exercise plenary review.... In construing a trial court's judgment, [t]he determinative factor is the intention of the court as gathered from all parts of the judgment.... The interpretation of a judgment may involve the circumstances surrounding the making of the judgment.... Effect must be given to that which is clearly implied as well as to that which is expressed.... The judgment should admit of a consistent construction as a whole.... In addition . because the trial judge who issues the order that is the subject of subsequent clarification is familiar with the entire record and, of course, with the order itself, that judge is in the best position to clarify any ambiguity in the order. For that reason, substantial deference is accorded to a court's interpretation of its own order.... Accordingly, we will not disturb a trial court's clarification of an ambiguity in its own order unless the court's interpretation of that order is manifestly unreasonable." (Citations omitted; footnote in original; internal quotation marks omitted.) Bauer v. Bauer , 308 Conn. 124, 129-32, 60 A.3d 950 (2013). "[T]he purpose of a clarification is to take a prior statement, decision or order and make it easier to understand. Motions for clarification, therefore, may be appropriate where there is an ambiguous term in a judgment or decision . but, not where the movant's request would cause a substantive change in the existing decision. Moreover, motions for clarification may be made at any time and are grounded in the trial court's equitable authority to protect the integrity of its judgments." (Citation omitted.) In re Haley B. , 262 Conn. 406, 413, 815 A.2d 113 (2003). In the present case, the court, in its dissolution judgment memorandum of decision, ordered the defendant to quitclaim all interest in the property to the plaintiff, and the defendant subsequently signed a quitclaim deed, thereby assigning his interest to the plaintiff. Although the plaintiff essentially asked the court in her motion for clarification to clarify what it meant in its dissolution judgment order by "all interest" when it ordered the defendant to "quitclaim to the plaintiff all interest" in the property, she asserted that "[c]larification of the [dissolution] judgment [was] necessary to determine if the court intended for the defendant to make whatever arrangements were necessary with his business partner in Brazil to transfer 'all interest' in the [property] to the plaintiff ." (Emphasis added.) The court's dissolution judgment order, however, identified that the specific action the defendant was required to take was to quitclaim all interest in the property. The plaintiff's motion sought to change the substance of the judgment by asking the trial court to revisit its original judgment and effectuate its original intent by introducing a new element into its judgment-that the defendant not just quitclaim whatever interest in the property he was able to, but that he "make whatever arrangements were necessary" so as to be able to transfer his partner's interest as well. Accordingly, the plaintiff's motion more properly is characterized as a motion to modify because it "represent[s] an attempt to alter the substantive terms of the original judgment." Mickey v. Mickey , 292 Conn. 597, 606, 974 A.2d 641 (2009) ; see also In re Haley B. , supra, 262 Conn. at 414, 815 A.2d 113 (motion for clarification properly characterized as motion to alter or to modify original judgment when trial court changed, on basis of mistake made at trial, visitation order by reducing frequency of visitation from weekly to monthly visitation in order to effectuate intent of original judgment); Miller v. Miller , 16 Conn. App. 412, 416-17, 547 A.2d 922 (motion for clarification improperly modified original judgment, which allowed defendant to satisfy $ 500,000 lump sum alimony award by transferring securities to plaintiff, by subsequently ordering that any securities transferred to plaintiff in satisfaction of lump sum alimony award pay dividends of at least $ 50,000 per year), cert. denied, 209 Conn. 823, 552 A.2d 430 (1988). Moreover, by ordering in its clarification order that the defendant "take the necessary measures" so that the plaintiff could acquire a 100 percent interest in the property, the court did more than simply effectuate its existing judgment. In Lawrence v. Cords , 165 Conn. App. 473, 484, 139 A.3d 778, cert. denied, 322 Conn. 907, 140 A.3d 221 (2016), this court "explained the difference between postjudgment orders that modify a judgment rather than effectuate it. A modification is [a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact.... In contrast, an order effectuating an existing judgment allows the court to protect the integrity of its original ruling by ensuring the parties' timely compliance therewith." (Internal quotation marks omitted.) The court's clarification order in the present case introduced a new element into the details of the judgment because, when it became obvious that the defendant could not transfer 100 percent ownership interest to the plaintiff solely by his execution of a quitclaim deed, the court ordered the defendant to take additional steps beyond quitclaiming his interest in the property to the plaintiff. Accordingly, the court's order amounted to a modification of the dissolution judgment. As the plaintiff correctly notes, in construing a marital dissolution judgment, the court's judgment must be interpreted as a whole. See Bauer v. Bauer , supra, 308 Conn. at 131, 60 A.3d 950 ("The interpretation of a judgment may involve the circumstances surrounding the making of the judgment.... Effect must be given to that which is clearly implied as well as to that which is expressed.... The judgment should admit of a consistent construction as a whole." [Internal quotation marks omitted.] ). The plaintiff asserts that the court's original intent that the plaintiff receive a 100 percent interest in the property is evinced by the language in the dissolution judgment memorandum of decision. Specifically, she points our attention to the language within the court's factual findings wherein the court states that it did not find credible the defendant's "recitation relative to his financial affairs." She also refers to the language within the dissolution judgment orders, which provide that the plaintiff will be responsible for all expenses associated with the property, including real estate taxes, insurance, and utilities. Despite these statements, however, the court recognized that the defendant had testified that he owned a 50 percent interest in the property, as was indicated on his financial affidavit. While the court did not credit the defendant's testimony, it also did not find that the defendant owned a 100 percent interest in the property, and there was no testimony or evidence submitted that would have supported such a finding. Therefore, the court's subsequent order is premised on facts that it originally did not believe. "It is well established that disbelief of a witness is not the equivalent of proof." State v. Simmons , 188 Conn. App. 813, 843, 205 A.3d 569 (2019). Having not credited the defendant's testimony that he was only a 50 percent owner of the property, and having ordered the defendant to "take the necessary measures" so that the plaintiff could acquire a 100 percent interest in the property, the court substantively modified the dissolution judgment. We also are not persuaded by the plaintiff's argument that the present case is "analogous" to Bauer v. Bauer , supra, 308 Conn. at 124, 60 A.3d 950. In Bauer , the judgment of dissolution rendered by the trial court provided that its memorandum of decision was incorporated by reference. Id., at 126, 60 A.3d 950. Within its memorandum of decision, the court stated that the parties agreed to split equally the defendant's pension accounts. Id. When the court issued twelve orders at the end of its memorandum of decision, however, the court did not refer to the pension accounts. Id., at 127, 60 A.3d 950. Neither party appealed from the court's judgment. Id. Years later, the plaintiff filed a motion for clarification asking the court to "reconfirm its previous order requiring [that] the defendant equally split his [pension accounts] with the plaintiff ." (Internal quotation marks omitted.) Id. The court granted the motion for clarification; id. ; and explained that "[b]ecause there is an alleged ambiguity or incompleteness in the decision of the trial court . [the] court will clarify that, pursuant to the parties' stipulation: The defendant is ordered to split equally his . pension [accounts] ." (Internal quotation marks omitted.) Id., at 128, 60 A.3d 950. On appeal, our Supreme Court concluded that, given the discrepancy between the trial court's factual findings indicating that the parties would equally divide the defendant's pension accounts and the lack of a formal order to that effect, the judgment was ambiguous. Id., at 132, 60 A.3d 950. The court further concluded that "a motion for clarification was the proper method for resolving the ambiguity because the motion did not seek to change the terms or substance of the judgment, but merely sought to resolve the ambiguity in the judgment by reconciling the discrepancy between the court's factual findings and its orders.... The plaintiff sought to clarify that the pension accounts would be split equally by the parties rather than awarded in their entirety to the defendant-she did not seek to change the percentage of the amount that would be awarded to her." (Citation omitted.) Id., at 132-33, 60 A.3d 950. Our Supreme Court, thus, determined that "[n]ot only was [the trial court's] interpretation reasonable, but any other interpretation would have rendered the trial court's factual finding superfluous and inconsistent with its orders. Moreover, the clarification merely reiterated the factual finding as originally stated and, thus, did not change or modify the judgment." Id., at 135, 60 A.3d 950. The plaintiff correctly points out that the defendant in the present case, like the defendant in Bauer , did not raise on appeal any challenge to the trial court's factual findings. The plaintiff also contends that the present case is similar to Bauer because the court's clarification in the present case, like that in Bauer , "merely reiterated the factual finding[s] as originally stated and, thus, did not change or modify the judgment." Id. In making that analogy, however, the plaintiff misconstrues Bauer . In Bauer , the factual finding that was reiterated in the court's clarification was the court's statement that the parties agreed to split the pension accounts. Id., at 132, 60 A.3d 950. In its clarification, the court took its prior factual finding regarding that agreement and clarified that it was part of its orders. The facts of the present case are markedly different. Unlike Bauer , where the trial court stated that an agreement was reached by the parties as to the division of certain property in its factual findings and then reiterated that factual finding in its clarification; id., at 135, 60 A.3d 950 ; in the present case, after the defendant had already quitclaimed his interest in the property to the plaintiff pursuant to the court's dissolution judgment, the court's clarification adds that the defendant "is ordered to take the necessary measures to effectuate the terms of the judgment" so that the plaintiff may acquire a 100 percent interest in the property. Accordingly, the court's clarification is not a reiteration of its previous order, as the plaintiff suggests, but, rather, constituted a substantive change to the dissolution judgment that introduces an additional element. For the foregoing reasons, we conclude that the trial court improperly modified the dissolution judgment when it issued its clarification order. The judgment is reversed and the case is remanded with direction to deny the plaintiff's motion for clarification. In this opinion the other judges concurred. The defendant also claims that the trial court's order dated January 5, 2018, is unenforceable because the court had no authority to order the defendant to acquire an interest in property he did not have at the time of the dissolution. Because we agree with the defendant's first claim that the court improperly modified the dissolution judgment, we need not address this issue. "The 2013 tax returns were not submitted into evidence. The 2010, 2011, 2012 and 2014 tax returns contain a Schedule C Profit or Loss from Business for [another business entity]." Pursuant to General Statutes § 47-36f, "[a] deed entitled 'Quitclaim Deed,' when duly executed, has the force and effect of a conveyance to the releasee of all the releasor's right, title and interest in and to the property described therein except as otherwise limited therein, but without any covenants of title. A 'Quitclaim Deed' may be used as a release of a mortgage, attachment, judgment lien or any other interest in real property." "Practice Book § 17-4 provides in relevant part: '(a) Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the [S]uperior [C]ourt may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court....' " Bauer v. Bauer , 308 Conn. 124, 130, 60 A.3d 950 (2013). Throughout the trial, the defendant testified that the property was owned by Talyah Home Improvement, LLC, and that he was a co-owner of that company. The defendant, however, did not provide any evidence to support his testimony. In his financial affidavit dated September 11, 2015, his most recent financial affidavit before the trial began, the defendant listed the property as an asset owned "joint with other," and he indicated that the value of his interest was one half of the equity in the property. The defendant's financial affidavit also included Talyah Home Improvement, LLC, as a business interest, of which he indicated he owned 50 percent. Although the plaintiff's counsel questioned the defendant about the company and his business partner, the plaintiff did not provide any evidence to suggest that the defendant was not a 50 percent owner of the property through the company, as he had claimed. In her appellate brief, the plaintiff also explicates the facts in Ranfone v. Ranfone , 119 Conn. App. 341, 987 A.2d 1088 (2010), and Stewart v. Stewart , 157 Conn. App. 601, 117 A.3d 958 (2015), but she does not offer any analysis as to how they apply to the present case beyond the conclusory statements: "This case is similar to Bauer and Ranfone and Stewart . The trial court's clarification resolved a latent ambiguity in the language of the judgment, was based on its original factual findings, and sought to effectuate the trial court's intent in the original order." We note that, inexplicably, the plaintiff asserts that the court's clarification order "did not require [the defendant] to acquire a new interest in the property; rather, it reconfirmed that the trial court had rejected his claim that he could not transfer the assets of the [limited liability company], specifically, [the property], to the plaintiff." The fact that the defendant has executed a quitclaim deed to the plaintiff and has assigned his rights in Talyah Home Improvement, LLC, to the plaintiff, and yet a second owner to the property has brought an action to protect that interest, undermines that argument.

12503188

Frank BONGIORNO v. Joseph CAPONE

Bongiorno v. Capone

2018-10-02

AC 40205

1212

1229

196 A.3d 1212

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

Frank BONGIORNO v. Joseph CAPONE

Frank BONGIORNO v. Joseph CAPONE AC 40205 Appellate Court of Connecticut. Argued May 22, 2018 Officially released October 2, 2018 Richard J. Rapice, with whom, on the brief, were Peter V. Lathouris, Stamford, and Michael P. Longo, Jr., for the appellant (defendant). Mark F. Katz, for the appellee (plaintiff). Sheldon, Elgo and Flynn, Js.

8440

51648

SHELDON, J. The defendant, Joseph Capone, appeals from the judgment of the trial court, rendered in accordance with the second revised finding of facts and report of an attorney trial referee (referee) to whom this case was referred for trial, awarding the plaintiff, Frank Bongiorno: compensatory damages of $17,000 on the plaintiff's claim of breach of contract, plus statutory prejudgment interest on that sum, under General Statutes § 37-3a, at the rate of 10 percent per annum; and treble damages of $51,000 on the plaintiff's claim of statutory theft under General Statutes § 52-564, less $17,000 to avoid duplication of the damages awarded for breach of contract. The defendant claims that the court improperly: (1) concluded that the plaintiff had standing in his individual capacity to pursue claims of breach of contract and statutory theft against the defendant based upon his withdrawal of $17,000 from the checking account of AAA Advantage Carting & Demolition Service, LLC (company), a limited liability company in which the defendant had a 50 percent membership interest that he had agreed to sell to the plaintiff for $200,000 on the basis of a binding term sheet that did not authorize the challenged withdrawal; (2) rendered judgment in favor of the plaintiff on the merits of his breach of contract claim without making legal conclusions as to the applicability of the waiver-of-suit provisions in the contractual documents to that claim; and (3) rendered judgment in favor of the plaintiff on the merits of his statutory theft claim. We agree with the defendant that the plaintiff lacked standing, in his individual capacity, to bring an action against him in this case to recover damages for losses he allegedly caused to the company. On that basis, we conclude that both the plaintiff's statutory theft claim and that portion of his breach of contract claim, in which he sought compensatory damages for diminishing the value of his own preexisting 50 percent interest in the company, rather than the other 50 percent interest in the company that he agreed to purchase under the contract, must be dismissed for lack of subject matter jurisdiction. To the extent, however, that the plaintiff sought damages from the defendant for losses he personally suffered due to the defendant's withdrawal of $17,000 from the company's account based on the resulting diminution in value of the 50 percent interest in the company that the defendant had agreed to sell him in exchange for his payment of $200,000, we find that the plaintiff had standing to prosecute that claim. Even so, although the defendant admittedly failed to raise before the trial court, and thus to preserve for appellate review, his only present challenge to the merits of that judgment, we further conclude that the amount of that judgment on the plaintiff's breach of contract claim must be reduced, in light of our jurisdictional ruling, to reflect the true extent of the proven diminution in value of the company resulting from the defendant's $17,000 withdrawal from it that he had standing, in his individual capacity, to recover as damages in this case. Because the proven diminution of the company's aggregate value that resulted from the defendant's withdrawal was $17,000, the resulting diminution in value of the 50 percent interest in the company that he received from the defendant in consideration for his payment was only one half of that amount, or $8500. We, thus, reverse the court's judgment for the plaintiff on his breach of contract claim, as to damages only, and remand this case with direction to render judgment for the plaintiff on that claim in the modified amount of $8500, plus prejudgment statutory interest on that sum, of 10 percent per annum, from the date on which the defendant's transfer of interest to the plaintiff became final until the date of judgment. The following facts and procedural history are relevant to our review. The plaintiff and the defendant are brothers-in-law. For many years, both owned 50 percent interests in the company. In 2012, however, they decided to end their business relationship. To that end, the plaintiff and the defendant signed two documents by which they agreed that the defendant would convey his 50 percent interest in the company to the plaintiff for the sum of $200,000. The parties first signed a "binding term sheet" on August 28, 2012, which provided that the plaintiff would purchase the defendant's interest in the company for $200,000, and that their agreement to make purchase and sale became enforceable on that date. Pursuant to the term sheet, the parties agreed to execute a "settlement agreement" no later than September 7, 2012, at which time the plaintiff would pay the defendant the agreed upon purchase price, and the defendant would convey his 50 percent interest in the company to the plaintiff. Although the term sheet did not specifically define what was to be included in the company's assets as of that date, August 28, 2012, it did specify that the defendant's attorneys were to send to the plaintiff's attorneys a list of all of the defendant's personal property then located in the company offices, that the defendant must remove such property by September 1, 2012, and that the defendant must remove all confidential or trade secret information of the company from his personal files. The term sheet did not include a reference to any checking account belonging to the company. On September 7, 2012, the parties executed a settlement agreement, which expressly incorporated the term sheet and its provisions. The settlement agreement provided that, upon its execution, the plaintiff would purchase from the defendant, and the defendant would sell to the plaintiff, the defendant's 50 percent interest in the company for the purchase price of $200,000, and that upon the delivery of the purchase price to the defendant, he would execute and deliver to the plaintiff an assignment of his membership interest, irrevocably transferring his 50 percent interest in the company to the plaintiff. The settlement agreement further provided that the defendant would deliver certain specific property to the plaintiff at the time of transfer, or as soon as possible thereafter. The settlement agreement provided that, immediately following the transfer of his membership interest, the defendant would have no ownership or any other interest in the company and no authority to act on the company's behalf, and that he would be deemed to have resigned from any and all positions within the company. The settlement agreement also included provisions as to mutual special releases and remedies. The parties released each other from any and all actions against each other relating to the company, except with respect to any breach of the settlement agreement or the term sheet. The parties agreed that, should a party breach the settlement agreement or the term sheet, the nonbreaching party would not be prohibited from pursuing or being entitled to available redress, including the recovery of damages. On August 29, 2012, the day after the binding term sheet was signed, the defendant withdrew $17,000 from a checking account owned by the company. On September 7, 2012, the parties executed the settlement agreement, and the defendant signed an assignment of membership interest, conveying all of his rights, title and interest in his 50 percent membership interest in the company to the plaintiff in exchange for the purchase price of $200,000. The plaintiff commenced this action against the defendant by causing him to be served with a writ, summons and complaint on September 28, 2012. On December 10, 2012, in response to the defendant's request to revise, the plaintiff filed a revised complaint, which thereby became the operative complaint in this action. The operative complaint initially included the following claims: (1) breach of contract; (2) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. ; (3) conversion; (4) statutory theft in violation of § 52-564 ; and (5) breach of contract as to Diaz Boncap, LLC. The plaintiff later withdrew his claim under CUTPA and his breach of contract claim as to Diaz Boncap, LLC. In his first count, pleading breach of contract, the plaintiff alleged that all assets of the company, except for items of the defendant's personal property that were referenced in the term sheet, were to have remained the assets and property of the company when the defendant conveyed his 50 percent interest in the company to the plaintiff pursuant to the settlement agreement. He therefore claimed that the defendant had breached the provisions of the term sheet by withdrawing $17,000 from the company checking account on August 29, 2012. The defendant subsequently filed an answer in which he denied all material allegations of the operative complaint and asserted seven special defenses, including that the plaintiff had suffered no actual damages as a result of the defendant's challenged $17,000 withdrawal. The plaintiff denied all of the defendant's special defenses. The matter was ultimately referred for trial to a referee, who conducted the trial on June 24, 2015. The documentary evidence presented at trial included: the binding term sheet, the settlement agreement, a copy of the withdrawal slip for the $17,000, a list of personal items to be removed from the company by the defendant, a Sprint phone bill, a Sprint account history, and a spreadsheet of financial distributions from the company to the plaintiff and the defendant. The plaintiff and the defendant both testified at the trial. The plaintiff testified that he and the defendant had entered into an agreement on August 28, 2012, under which the defendant agreed to convey his 50 percent interest in the company to the plaintiff. He further testified that the document dated August 28, 2012, was a binding term sheet that memorialized generally his agreement with the defendant, and that another document, dated September 7, 2012, was a more formalized agreement in which he and the defendant agreed on the details of the transfer of the defendant's 50 percent interest. The plaintiff and the defendant arrived at the purchase price of $200,000 by considering "[t]he amount in the [company's] checkbook . the amount of receivables owed to the company, the amount of payables paid out, and [the value] of the equipment" prior to the sale of the company. The plaintiff testified that the term sheet provided that the defendant would be permitted to remove all of his personal property from the company's offices after he furnished a list of such property, and that the defendant had in fact come to the offices on August 28, 29 and 30, 2012, to clear out his computer and personal items. The defendant withdrew $17,000 from the company's account on August 29, 2012. The plaintiff never authorized the withdrawal, and the defendant never told the plaintiff that he intended to make the withdrawal. The plaintiff confirmed that the checking account from which the defendant made the withdrawal belonged to the company and was not the plaintiff's personal checking account. The plaintiff further testified that, pursuant to the term sheet, he believed that the defendant's ownership in the company had ended on August 28, 2012. He contended, on that basis, that the defendant's August 29, 2012 withdrawal constituted theft. According to the plaintiff, he and the defendant had adopted a standard business practice for making withdrawals from the company checking account. In accordance with that practice, he and the defendant would compensate themselves from the income of the company, as deposited in the account, by taking weekly disbursements of $1000, "if the checkbook . allow[ed] it," but they would not take such disbursements on the weeks when the company did not have sufficient funds in the account with which to make them. They did not pay themselves retroactively for any missed weeks. The plaintiff and the defendant also made withdrawals from the company account to support other property they jointly owned; the plaintiff characterized such withdrawals as capital contributions. Payments from the company account always were made equally to the plaintiff and the defendant, with the exception of reimbursements for minor business purchases that they made. At the end of the year, based upon their accountant's determination, the plaintiff and the defendant would issue a check from the company account to the defendant in an amount representing the taxes he was required to pay on his income from the company that year, and a check to the plaintiff in an identical amount. The plaintiff testified that these tax reimbursement withdrawals were not made in years when their tax burdens were very low. The plaintiff testified that the company's business financial records contained no entry documenting the defendant's $17,000 withdrawal from the company checking account. The plaintiff claimed that the effective date of the transfer of the defendant's interest in the company to him was August 28, 2012, pursuant to the binding term sheet. He confirmed, however, that the actual closing date for the sale of the defendant's 50 percent interest in the company to him was September 7, 2012. Although before the binding term sheet was signed, the defendant had taken care of the bills and finances of the company, after it was signed, the plaintiff's secretary took care of all deposits and the plaintiff's son wrote all the checks. The plaintiff reiterated that the defendant did not engage in the company business activity after August 28, 2012. In his testimony, the defendant admitted that, although he had signed the binding term sheet on August 28, 2012, he withdrew $17,000 from the company's checking account on August 29, 2012. The defendant confirmed that there was no mention of the $17,000, or of his right to receive that sum from the company, in either the binding term sheet or the settlement agreement. He testified that $9000 of the $17,000 he withdrew from the company account represented nine weeks of $1000 disbursements that he had taken retroactively to make up for weeks when no disbursements could be made because there were insufficient funds in the account with which to make them. He testified that the other $8000 of the $17,000 withdrawal had been taken to cover his estimated tax burden on income he had received from the company from January 1 through August 30, 2012. He claimed that it was a standard business practice for him to withdraw money from the account in this way for tax reimbursement purposes. According to the defendant, the account contained approximately $60,000 when he made the $17,000 withdrawal from it, but he did not tell the plaintiff about the withdrawal because he and the plaintiff were not communicating at the time. He claimed that he was still working for the company until sometime between August 29 and September 7, 2012. He also claimed that he was conducting normal business operations for the company, including making out checks, until September 7, 2012, and thus, that his duties at the company did not cease, and he was not out of the company, until that date. On November 5, 2015, the referee filed his first report and a motion for acceptance of the report and the entry of judgment in accordance therewith. In the report, the referee first found that, although the settlement agreement was executed approximately one week after the parties signed the term sheet, the provisions of the term sheet had become binding and enforceable as of August 28, 2012. The term sheet provided that the actual transfer of the defendant's interest in the company to the plaintiff was to occur no later than September 7, 2012. The referee further found that, at the time the term sheet was signed, on August 28, 2012, the price the parties had agreed to for the plaintiff's purchase of the defendant's 50 percent interest in the company had been based in material part upon a valuation of the company's assets on the date the term sheet became enforceable, which included all the cash in the company account from which the defendant made the $17,000 withdrawal on August 29, 2012. The referee found, on that basis, that the defendant had breached his contract with the plaintiff by taking money from the company account that he had agreed would remain the property of the company at the time his 50 percent interest in the company was transferred to the plaintiff. Reasoning further that, upon the completion of the sale pursuant to the parties' contract, the plaintiff would become the sole owner of the company and, thus, of all of its assets, the referee awarded the plaintiff the full value of the defendant's $17,000 withdrawal to compensate him for diminution in the value of the consideration he received from the defendant for his payment of $200,000, plus prejudgment statutory interest on that amount pursuant to § 37-3a, from the date of the withdrawal until the date of judgment at the rate of 10 percent per annum. Although acknowledging implicitly that the actual transfer of the defendant's interest in the company did not take place until September 7, 2012, when the settlement agreement was signed and the plaintiff paid the defendant the sum of $200,000, the referee found that the defendant's ownership rights in the company ceased to exist on August 28, 2012. Therefore, further finding that the defendant's actions in withdrawing the $17,000 had been taken with the intent to deprive the plaintiff, as the sole member of the company upon completion of the parties' contract, of the money so withdrawn, he found that the plaintiff met his burden of proof as to his claims of conversion and statutory theft, and he awarded the plaintiff treble damages of $51,000 for statutory theft, pursuant to § 52-564. The defendant filed an objection to the referee's report and a memorandum in opposition to the motion to accept that report on November 23, 2015, in which he argued, inter alia, that the referee had failed to file the report in compliance with Practice Book § 19-8 because the report was formatted as a memorandum of decision and did not set forth in separately and consecutively numbered paragraphs the ultimate facts found and the conclusions drawn therefrom; the conclusions of facts in the first report were not properly reached on the basis of the subordinate facts found; and the referee reached incorrect legal conclusions, including that the plaintiff had a sufficient personal property interest in the $17,000 withdrawn by the defendant to support his individual claims for damages. The defendant also filed a motion to dismiss the operative complaint for lack of subject matter jurisdiction, claiming that the $17,000 the defendant had withdrawn from the company account belonged to the company rather than to the plaintiff individually and, thus, that the plaintiff, who had brought suit in his individual capacity only, lacked standing to maintain any claim for damages based upon that withdrawal. By order and memorandum of decision dated February 22, 2016, the court declined to accept the referee's report. The basis for its ruling was that the report did not comply with the requirements of Practice Book § 19-8 for referee reports. The court therefore ordered the referee to redraft his report within 120 days of its order. By a separate memorandum of decision issued on that same day, the court denied the defendant's motion to dismiss, ruling that, by claiming that the plaintiff was not the proper party to commence or prosecute this action, "the defendant [had sought] a remedy more appropriate for a motion to strike, the failure to join the proper party." The court found that the only two parties to the contracts at issue were the plaintiff and the defendant, that each party had previously owned a 50 percent interest in the assets of the company, which included the checking account from which the defendant had withdrawn the $17,000, and thus, when the transaction by which the plaintiff purchased the defendant's interest in the company was completed, the plaintiff would own all the assets of the company, including the checking account in question. The court held for that reason that the plaintiff had pleaded a "colorable claim of direct injury" on the basis of the defendant's withdrawal, and so it denied the defendant's motion to dismiss. (Internal quotation marks omitted.) On May 26, 2016, the referee filed his revised findings of fact and report. On June 14, 2016, the defendant filed an objection to the revised report and a memorandum in support of his objection, claiming, inter alia, that the revised report failed to comply with Practice Book § 19-8 by failing to set forth facts sufficient for the court to make a determination on the plaintiff's first, third and fourth causes of action, and reiterating his claim that the plaintiff had failed to prove that he had a sufficient property interest in the $17,000 the defendant had withdrawn from the company account to support his individual claims for money damages against the defendant. By order and memorandum of decision dated August 3, 2016, the trial court declined to accept the revised report because it did not state the standard of proof the referee had used in rendering his factual findings on the plaintiff's claim of statutory theft and did not cite the legal authority upon which the referee was relying in recommending an award of statutory interest, or recommend a rate at which such interest should be awarded. The court therefore ordered the referee to submit a new report within 120 days after conducting whatever further proceedings he deemed necessary for that purpose. On October 20, 2016, the referee held a conference in which the parties' counsel both participated, during which the referee offered the defendant an opportunity to schedule a further hearing on the issue of prejudgment statutory interest. After counsel conferred with one another on the issue, they reported that the defendant would not request a further hearing on the issue of interest and, thus, asked the referee to prepare his second revised report based solely upon the evidence presented at trial. On December 2, 2016, the defendant filed a preemptive objection to the referee's second revised report, arguing that it would not be filed, as the court had ordered, within 120 days of August 3, 2016. The referee filed his second revised report on December 6, 2016, along with a motion for acceptance of the report and the entry of judgment in accordance therewith. On December 23, 2016, the defendant filed a second objection to the second revised report, claiming not only that the report had been filed beyond the court ordered deadline, but that it was objectionable in substance for the reasons stated in his objections to the referee's prior reports. On February 27, 2017, the court accepted the referee's second revised report and rendered judgment in favor of the plaintiff in accordance with that report. As for the defendant's objection based on timeliness, the court ruled that, although 120 days from August 3, 2016, was indeed December 1, 2016, the report had been timely filed because the 120 day period for filing it did not begin to run until October 20, 2016, the date of his final conference with counsel. As for the defendant's other objections, the court refused to revisit the issues decided in its earlier memorandum of decision denying the defendant's motion to dismiss, dated November 25, 2015. The court then adopted the referee's findings on the merits without independent analysis. The court therefore found that the facts found by the referee established the plaintiff's right to judgment in his favor on his claim of breach of contract, in the amount of $17,000 in compensatory damages, plus prejudgment statutory interest on that sum at the rate of 10 percent per annum, and on his claim of statutory theft, treble damages in the amount of $51,000, less $17,000 as duplicative of the damages awarded for breach of contract. Accordingly, it rendered judgment in the plaintiff's favor on those counts. This appeal followed. Additional facts will be set forth as necessary. I The defendant first claims that the court erred in determining that the plaintiff had standing to maintain this action. We conclude that the plaintiff had standing to maintain his breach of contract claim. We agree with the defendant, however, that the plaintiff lacked standing to bring a statutory theft claim on the facts of this case. "Standing is the legal right to set judicial machinery in motion." (Internal quotation marks omitted.) Ma'Ayergi & Associates, LLC v. Pro Search, Inc. , 115 Conn. App. 662, 667, 974 A.2d 724 (2009). "The issue of standing implicates a court's subject matter jurisdiction and is subject to plenary review.... Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.... The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]." (Citation omitted; internal quotation marks omitted.) Channing Real Estate, LLC v. Gates , 326 Conn. 123, 137, 161 A.3d 1227 (2017). "Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests." (Internal quotation marks omitted.) Ma'Ayergi & Associates, LLC v. Pro Search, Inc. , supra, at 667, 974 A.2d 724. "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Internal quotation marks omitted.) O'Reilly v. Valletta , 139 Conn. App. 208, 212-13, 55 A.3d 583 (2012), cert. denied, 308 Conn. 914, 61 A.3d 1101 (2013). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.... One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.... [A]s a general rule, a plaintiff lacks standing unless the harm alleged is direct rather than derivative or indirect.... "The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue.... Thus, to state these basic propositions another way, if the injuries claimed by the plaintiff are remote, indirect or derivative with respect to the defendant's conduct, the plaintiff is not the proper party to assert them and lacks standing to do so. [When], for example, the harms asserted to have been suffered directly by a plaintiff are in reality derivative of injuries to a third party, the injuries are not direct but are indirect, and the plaintiff has no standing to assert them." (Internal quotation marks omitted.) Padawer v. Yur , 142 Conn. App. 812, 816-17, 66 A.3d 931, cert. denied, 310 Conn. 927, 78 A.3d 145 (2013) ; see also O'Reilly v. Valletta , supra, 139 Conn. App. at 213-14, 55 A.3d 583. A "The elements of a breach of contract claim are the formation of an agreement, performance by one party, breach of the agreement by the other party, and damages." (Internal quotation marks omitted.) CCT Communications, Inc. v. Zone Telecom, Inc. , 327 Conn. 114, 133, 172 A.3d 1228 (2017). For a plaintiff to have standing to bring an action seeking damages for breach of contract, he must allege and prove that he was a party to the contract and, thus, was entitled to enforce the contract for his own benefit, and that the other party's breach of the contract caused him to suffer damages in his individual capacity. On appeal, the defendant argues that the plaintiff had no standing to bring this claim because it was the company, and not the plaintiff, that suffered any damages as a result of his $17,000 withdrawal. In his breach of contract claim, however, the plaintiff did not seek damages from the defendant for losses he allegedly caused to the company by making an unauthorized withdrawal of money from it, but rather sought damages for the resulting failure of the defendant to give him full consideration for the $200,000 he had paid for the defendant's 50 percent interest in the company, with the understanding that the company's aggregate assets at the time of transfer would be those owned by the company on August 28, 2012. The parties' contract for the defendant to sell that membership interest to the plaintiff was a personal undertaking between them to which the company was not itself a party. The membership interest thereby purchased was personal property that the defendant had the right to sell to the plaintiff, and the plaintiff had the right to receive, own, enjoy, and dispose of as he wished. See General Statutes (Rev. to 2011) § 34-169. Therefore, if and to the extent that the defendant, by taking unilateral action to diminish the value of that membership interest before transferring it to the plaintiff in exchange for his agreed upon payment for it, denied the plaintiff the benefit of his bargain under the contract, the plaintiff had standing, in his individual capacity, to sue the defendant for breach of contract to recover compensatory damages for that lost benefit. The referee found that the $17,000 withdrawn by the defendant from the company checking account was among the assets the parties had agreed, under the binding term sheet, would remain the property of the company at the time the defendant's 50 percent interest in the company was transferred to the plaintiff. To make the plaintiff whole for this failure of consideration, the court awarded the plaintiff the full amount of that withdrawal as compensatory damages for the company's lost value, plus prejudgment statutory interest on that sum, from the date of the withdrawal to the date of judgment. Because, however, the plaintiff's contract with the defendant was to purchase only a 50 percent interest in the company, the loss of consideration suffered by the plaintiff due to the company's loss of $17,000 in aggregate value was only one half of that amount, or $8500. The plaintiff's damages for breach of contract must, therefore, be reduced to $8500. Accordingly, we thus reverse the court's judgment for the plaintiff on his breach of contract claim as to damages only, and remand this case with direction to render judgment for the plaintiff on that claim in the amount of $8500, plus prejudgment interest of 10 percent per annum on that sum from the date the undervalued interest was transferred until the date of judgment. B " Section 52-564 provides: Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages. We consistently have held that [s]tatutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119.... A person commits larceny within the meaning of . § 53a-119 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 . An owner is defined, for purposes of § 53a-119, as any person who has a right to possession superior to that of a taker, obtainer or withholder. General Statutes § 53a-118 (a) (5)." (Citations omitted; emphasis added; internal quotation marks omitted.) Rana v. Terdjanian , 136 Conn. App. 99, 113-14, 46 A.3d 175, cert. denied, 305 Conn. 926, 47 A.3d 886 (2012). "A limited liability company is a distinct legal entity whose existence is separate from its members.... A limited liability company has the power to sue or to be sued in its own name; see General Statutes [Rev. to 2011] § 34-124 (b) and 34-186; or may be a party to an action brought in its name by a member or manager. See General Statutes [Rev. to 2011] § 34-187." (Citation omitted.) O'Reilly v. Valletta , supra, 139 Conn. App. at 214, 55 A.3d 583 ; see also Padawer v. Yur , supra, 142 Conn. App. at 817, 66 A.3d 931 ; Wasko v. Farley , 108 Conn. App. 156, 170, 947 A.2d 978, cert. denied, 289 Conn. 922, 958 A.2d 155 (2008). "General Statutes [Rev. to 2011] § 34-167 (a) clearly establishes that [p]roperty transferred to or otherwise acquired by a limited liability company is property of the limited liability company and not of the members individually and that [a] member has no interest in specific limited liability company property." (Internal quotation marks omitted.) Mukon v. Gollnick , 151 Conn. App. 126, 132, 92 A.3d 1052 (2014). "A member or manager . may not sue in an individual capacity to recover for an injury based on a wrong to the limited liability company.... [A] member or manager of a limited liability company is not a proper party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company, except where the object of the proceeding is to enforce a member's or manager's right against or liability to the limited liability company or as otherwise provided in an operating agreement ." (Internal quotation marks omitted.) Padawer v. Yur , supra, 142 Conn. App. at 817-18, 66 A.3d 931 ; see also O'Reilly v. Valletta , supra, 139 Conn. App. at 214-15, 55 A.3d 583 ; Wasko v. Farley , supra, 108 Conn. App. at 170, 947 A.2d 978. This court has repeatedly held that damages suffered by a limited liability company cannot be recovered by a member of the limited liability company bringing the case in an individual capacity. In Wasko v. Farley , supra, 108 Conn. App. at 170-71, 947 A.2d 978, because the plaintiff brought the action in her individual capacity and the limited liability company was not a party, damages incurred by the limited liability company were not at issue in the case, and we held that the court properly declined to instruct the jury on damages resulting from additional costs incurred by the limited liability company. In Ma'Ayergi & Associates, LLC v. Pro Search, Inc. , supra, 115 Conn. App. at 666, 974 A.2d 724, we disagreed with the plaintiff's argument that he had standing as an individual to assert all causes of action on behalf of his companies because he was the sole member of those companies. "[A] corporation is a separate legal entity, separate and apart from its stockholders.... It is an elementary principle of corporate law that . corporate property is vested in the corporation and not in the owner of the corporate stock.... That principle also is applicable to limited liability companies and their members." (Internal quotation marks omitted.) Id. In Padawer v. Yur , supra, 142 Conn. App. at 818, 66 A.3d 931, we held that "[a]lthough the plaintiff [was] the sole member of [the limited liability company], that [did] not impute ownership of the limited liability company's assets to the plaintiff," and that the plaintiff's position as the sole member "[did] not provide him with standing to recover individually for harm to the limited liability company." In O'Reilly v. Valletta , supra, 139 Conn. App. at 216, 55 A.3d 583, we held that the plaintiff "lacked the requisite direct personal interest in the lease, the leased premises or the restaurant business conducted by his [limited liability] company on those premises to confer standing on him to complain of any breach of the lease or of any harm to the business resulting therefrom" and, therefore, that "[t]he claim should have been dismissed for lack of subject matter jurisdiction ." In the present case, the statutory theft count is based entirely on the defendant's withdrawal of $17,000 from the company's checking account. The facts demonstrate that it is the company, and not the plaintiff, that would have standing to assert a statutory theft claim on the basis of the defendant's conduct. The plaintiff has not demonstrated a specific, personal and legal interest in the money separate from that of the company. The company owned the checking account from which the money was taken. The trial court's finding that the term sheet and the settlement agreement passed title to the company business assets from the defendant to the plaintiff is incorrect; only the defendant's membership interest in the company was thereby transferred. Under these allegations, the only injuries resulting from the defendant's conduct, as stated in the plaintiff's statutory theft count, were suffered by the company, not by the plaintiff personally. The company is a limited liability company and is, therefore, a distinct legal entity from the plaintiff, who is simply a member of that entity. Even after the plaintiff became the sole member of the company, the company remained a distinct legal entity. Because a member of a limited liability company cannot recover for an injury allegedly suffered by the limited liability company, we conclude that the plaintiff lacked standing to pursue a claim of statutory theft in this case. Accordingly, we conclude that the trial court lacked subject matter jurisdiction over the plaintiff's statutory theft claim. The court improperly rendered judgment for the plaintiff on the merits of his statutory theft claim. The claim should have been dismissed for lack of subject matter jurisdiction rather than decided on its substantive merits. The judgment for the plaintiff on his statutory theft claim is reversed because the plaintiff lacked standing to bring it in his individual capacity. This case is remanded with direction to dismiss that claim for lack of subject matter jurisdiction. II The defendant next claims that the trial court erred in rendering judgment in favor of the plaintiff on his breach of contract claim without making conclusions of law as to the applicability of the waiver-of-suit provisions in the contractual documents. The defendant contends that, pursuant to the settlement agreement, the parties agreed to "forever release, remise, acquit, waive and discharge . [the] other party . from any and all actions, causes of action, suits, debt, dues, sums of money . trespasses, damages . claims and demands whatsoever, in law or in equity, which against a party . [or another party] ever had, now have or hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the date of [the settlement] agreement . [except with respect to any breach of this agreement or the term sheet]." (Internal quotation marks omitted.); see footnote 6 of this opinion. He argues that the execution of the settlement agreement resulted in a waiver of any claims that relate to his conduct on or before September 7, 2012, and, thus, that the plaintiff would only have a cause of action against him if the plaintiff sought to enforce any claim made in a previous litigation or sought to enforce the provisions of the term sheet and the settlement agreement. The plaintiff argues that the defendant has failed to preserve this issue for appellate review by not filing a transcript of the hearing before the referee in accordance with Practice Book § 19-14. The defendant did file the transcript of the hearing before the referee on November 23, 2015. We conclude, however, that the defendant failed to preserve this issue for our review by not raising it before the trial court. After a thorough review of the record, we find that the defendant did not raise this defense at any time before the trial court. In his appellate brief, in fact, the defendant concedes that he did not raise this defense at the time of trial. He argues, however, that the trial court had a duty, sua sponte, to reject the allegedly incomplete factual finding of the referee regarding the alleged waiver-of-suit provisions of the contract documents. The defendant provides no legal basis for this assertion. Pursuant to Practice Book § 60-5, we are not bound to consider a claim that was not distinctly raised at trial. Thus, we decline to address this claim. The judgment is reversed in part and the case is remanded with direction to render judgment for the plaintiff on his claim of breach of contract in the modified amount of $8500, plus prejudgment statutory interest on that sum from the time the settlement agreement was executed until the time of judgment, at the rate of 10 percent per annum, and to render judgment dismissing the plaintiff's statutory theft claim for lack of subject matter jurisdiction; the judgment is affirmed in all other respects. In this opinion the other judges concurred. The plaintiff's complaint also pleaded claims of violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and breach of contract involving a separate company, Diaz Boncap, LLC. The plaintiff withdrew those claims prior to trial. Additionally, the plaintiff's complaint pleaded a claim of conversion. The trial court found that this claim was moot because damages for conversion and statutory theft cannot be separately awarded based upon the taking of the same sum of money; it therefore found for the defendant on that count. The plaintiff also claimed in his first count that the defendant had failed to transfer two cell phone numbers to him. The referee found in favor of the defendant on that claim, and the court upheld the decision. It is not an issue on appeal. In his brief, the defendant also claimed that the court erred in rendering judgment in favor of the plaintiff on the plaintiff's claim of conversion. This claim is unfounded, as the defendant makes no mention of conversion in his argument, and the court determined that the plaintiff's conversion claim was moot. See footnote 1 of this opinion. We do not address the defendant's third claim in this opinion because that claim is rendered unnecessary by our resolution of his first claim. The full provision provides as follows: "No later than 3:00 p.m. on Friday, August 31, 2012, [the defendant's] attorneys shall transmit to [the plaintiff's] attorneys a list of all personal property belonging to [the defendant] that [the defendant] intends to remove from [the company's] offices. [The defendant] shall have the right to remove all books and records of Boncap Realty, LLC, Boncap Recycling, LLC, and Plymouth Boncap, LLC, necessary for managing and operating such entities pursuant to Section 9 below. [The plaintiff] shall be entitled to copies of all such documents at the expense of the respective entity whose documents are copied. [The defendant] shall remove all such items from [the company's] offices no later than 5:00 p.m. on Saturday, September 1, 2012. [The plaintiff] may observe the removal. Thereafter, [the defendant] shall have no rights to occupy [the company's] offices. If there is a dispute as to what items [the defendant] may remove from [the company's] offices, such dispute shall be submitted to the Mediator for a final, binding and non-appealable decision to be rendered no later than [September 7, 2012]. [The defendant] shall remove any confidential or trade secret information of [the company] from his personal files. However, [the defendant] shall have access in the future to any [company] information necessary for tax, financial or legal purposes pertaining to the period of his ownership of [the company]." The settlement agreement included a handwritten addition here, initialed by both the plaintiff and the defendant, stating that $25,000 of the $200,000 "shall be held in escrow by the mediator, to be distributed to [the defendant] upon completion of the transfer of phone number 203-329-3878 to [the plaintiff]." This addition is not at issue in this appeal. The provision, in relevant part, provides as follows: "In addition, [the defendant] shall deliver, to the extent he has possession . custody or control, all customer lists, contracts, vehicle titles, passwords, computer codes, computer discs and sticks and backups, accounts, telephone equipment, files, books of account, bank records, correspondence, invoices, purchase orders, receipts and any and all other records, accounts, documents, or tangibles, without limitation, which are proprietary to [the company]; and [the defendant] shall not retain originals or copies of said items, whether such said copies are in electronic or any other form. The [company] telephone numbers and services, 203-329-3878, presently located at 31 Laurel Ledge Rd., Stamford, CT 06903, as well as telephone number 203-324-9961, shall be immediately (within one (1) business day) transferred to 79 Hardesty Rd., Stamford, CT 06903, and [the defendant] shall not use these numbers or services for any purpose whatsoever; password to the time clock; pass-code to reprogram security system at Diaz garage; IP Address and password to the West Ave. camera system; IP Address and password to camera system at Diaz Garage; any other needed passwords; the key schedule for Diaz building that [the defendant] took with him when he left; the two memory [backup] sticks that were used to back up [the company's] system nightly with the information still in them; company navigation in [the defendant's] possession; company digital camera in [the defendant's] possession; newly purchased company I-phone in [the defendant's] wife's possession; company mobile phone in [the defendant's] possession; letter from [the defendant] to credit card company, Sprint and any other company needed, as primary name on account, that he is no longer with the company . and that [the plaintiff] is the primary contact on the account; and any other documents needed to facilitate the transition." The provision includes the following, in relevant part: "Each Party . hereby forever releases, remises, acquits, waives and discharges each other Party . from any and all actions, causes of action, suits . trespasses, damages . claims and demands whatsoever, in law or equity, which against a Party or . another Party . ever had, now have or hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the date of this Agreement arising solely from or related to [the company], except with respect to any breach of this Agreement or the Term Sheet.... "It is understood by each Party that there is a risk that subsequent to the execution of this Agreement, a Party may discover facts different from or in addition to the facts which he now knows or believes to be true with respect to the subject matter of this Agreement . Each Party intends this Agreement to apply to all unknown or unanticipated results, as well as those known and anticipated, except such facts as may have been [wilfully] and intentionally withheld ." The relevant provision includes the following language: "Each of the Parties . agrees that, should a Party breach any of the provisions of this Agreement or the Term Sheet, the non-breaching Party will be irreparably harmed . Nothing shall be construed as prohibiting any non-breaching Party from pursuing or being entitled to any other available redress for such breach or threatened breach including the recovery of damages...." Diaz Boncap, LLC, was another company jointly owned by the plaintiff and the defendant. Provisions detailing the sale of the defendant's 50 percent interest in that company to the plaintiff were included in both the binding term sheet and the settlement agreement. The plaintiff later withdrew all claims regarding that company, and it is not at issue in this appeal. The plaintiff testified that "[the defendant] didn't have the readily available funds . or he didn't wanna to come out-of-pocket, so he wanted to know what part of his tax burden was attributed to [the company], so if [$]15,000 was attributed . to [the company], he would get a check for [$]15,000; because we were fifty-fifty partners, I would take a check for $15,000." We note that the record of distributions in 2012 from the company to both the defendant and the plaintiff, which was an exhibit at the trial, uphold the plaintiff's testimony as to the disbursements. This record makes no reference to either $8000 or $9000 paid to either the defendant or the plaintiff on August 29, 2012, and it shows that each payment that was made was in equal amounts to each party. The referee was not asked to make findings regarding the waiver-of-suit provisions to which the defendant refers on appeal, and, thus, he made no such findings. The referee's first report and second revised report both included the amount of statutory interest awarded to the plaintiff as well as its legal basis. The referee's second revised report contained factual findings identical to his first report as to the counts of breach of contract and statutory theft and the underlying facts. We note that chapter 613 of the General Statutes, § 34-100 through 34-242, was repealed, effective July 1, 2017. See Public Acts 2016, No. 16-97, § 110. We refer in this opinion to the statutory provisions in effect at the time of the alleged breach of contract and statutory theft. We note that, pursuant to Paulus v. LaSala , 56 Conn. App. 139, 150, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000), § 37-3a provides interest to the date final judgment is rendered. We also note that there is a discrepancy in the trial court's judgment awarding prejudgment statutory interest. The court adopted the referee's finding that the transfer of the defendant's 50 percent interest in the company was not executed until September 7, 2012. However, it awarded prejudgment statutory interest starting from August 29, 2012, the date of the withdrawal, until the date of judgment. On remand, prejudgment interest must be calculated from September 7, 2012, the date on which the defendant breached the contract by failing to provide full consideration to the plaintiff, as agreed to, in the form of a 50 percent membership interest in the company with all of the assets it had on the date the term sheet was signed and agreed to. See footnote 14 of this opinion. See footnote 14 of this opinion.

12503181

Charles GARNER v. COMMISSIONER OF CORRECTION

Garner v. Comm'r of Corr.

2018-12-04

SC 19927

1138

1147

196 A.3d 1138

196

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

Charles GARNER v. COMMISSIONER OF CORRECTION

Charles GARNER v. COMMISSIONER OF CORRECTION SC 19927 Supreme Court of Connecticut. Argued February 21, 2018 Officially released December 4, 2018 James E. Mortimer, assigned counsel, for the appellant (petitioner). Steven R. Strom, assistant attorney general, and Sarah Hanna, assistant state's attorney, with whom, on the brief, was George Jepsen, attorney general, for the appellee (respondent). Palmer, McDonald, Robinson, Mullins and Kahn, Js. The listing of justices reflects their seniority status on this court as of date of oral argument.

4766

30039

PALMER, J. Following his guilty plea to certain violent crimes that he committed on March 22, 2012, the petitioner, Charles Garner, was sentenced to a lengthy prison term. Thereafter, he commenced this habeas action against the respondent, the Commissioner of Correction, claiming that a 2013 amendment to General Statutes (Rev. to 2013) § 54-125a; see Public Acts 2013, No. 13-3, § 59 (P.A. 13-3), codified at General Statutes (Supp. 2014) § 54-125a; which eliminated risk reduction credit awarded pursuant to General Statutes § 18-98e from the calculation of a violent offender's initial parole eligibility date, as applied retroactively to him, violates the ex post facto clause of the United States constitution, because, under the version of § 54-125a in effect when he committed his offenses, he was entitled to have any such credit that he had earned applied to advance his initial parole eligibility date. The petitioner also claimed that defense counsel in his criminal case rendered ineffective assistance by failing to provide the sentencing court, Alexander, J. , with certain evidence in mitigation of his sentence. The habeas court, Fuger, J. , rejected the petitioner's ex post facto claim, concluding, inter alia, that the risk that the petitioner would suffer a longer period of incarceration as a result of the 2013 amendment was too remote because an award of risk reduction credit is discretionary and any such awarded credit may be revoked by the respondent for cause at any time. The habeas court also concluded that the petitioner could not prevail on his ineffective assistance claim because he did not establish that counsel's performance was either unreasonable or prejudicial. On appeal, the petitioner challenges both of these determinations by the habeas court. Although we reject the petitioner's ineffective assistance claim, we agree that the ex post facto clause bars the respondent from applying the 2013 amendment retroactively to the petitioner. Accordingly, we reverse in part the judgment of the habeas court. The following undisputed facts and procedural history are necessary to our resolution of the petitioner's appeal. In the early evening of March 22, 2012, the petitioner arrived at the home of the female victim, his former next-door neighbor whom he had known since childhood, to watch television with her. After spending the evening with the petitioner, the victim asked him to leave because she wanted to go to sleep. The petitioner then struck the victim on the head with a kitchen chair, knocking her unconscious and causing fractures to her eye socket and cheekbone, injuries that required the victim to undergo facial reconstruction and plastic surgery. Before fleeing, the petitioner stole money, credit cards and jewelry from the victim's home. The petitioner was arrested several days later, and, on September 18, 2012, in accordance with a plea agreement, he pleaded guilty under the Alford doctrine to one count of assault in the first degree and one count of burglary in the first degree. He was represented by Attorney William O'Connor. Under the plea agreement, the state agreed to a sentence not to exceed twenty years of imprisonment. The petitioner retained the right to argue at the time of sentencing that a portion of his sentence should consist of a term of special parole. At the petitioner's sentencing hearing on November 29, 2012, the state recommended that he receive the maximum sentence of twenty years of imprisonment. The state based its recommendation on the petitioner's criminal history, the severity of the assault, the petitioner's prior failure at rehabilitation, his "feigned remorse" for his actions, and a lack of compelling mitigation evidence. The victim also gave a statement to the sentencing court in which she discussed her twenty-nine year relationship with the petitioner, explaining that they first met when she and her husband moved next door to the home where the petitioner resided with his parents. The victim further explained that, although the petitioner had been a child with "impulse control problems and anger management issues" that ultimately led to criminal activity, she always endeavored to support him, and did so up to and including the evening of the attack, when he arrived at her door ostensibly seeking company and conversation. After describing the petitioner's assault on her and the medical and related challenges it had created, the victim implored the court to impose the maximum sentence. The victim's son also addressed the court, and he, too, requested that the petitioner receive the maximum sentence. The petitioner's attorney, O'Connor, presented the court with certain mitigation evidence, including the presentence investigative report, a memorandum to aid in sentencing prepared by a social worker employed by the Office of the Public Defender, and a mental health evaluation of the petitioner prepared by Andrew W. Meisler, a clinical and forensic psychologist. Each of these documents detailed the significant challenges that the petitioner had faced throughout his life, which included an alcoholic, physically abusive father, various mental health diagnoses including schizoaffective disorder, an instance of serious sexual abuse as a child, a lifelong struggle with addiction to alcohol and drugs, and difficulty maintaining employment. O'Connor also submitted several letters of support for the petitioner written by friends and family, all of whom described the petitioner as a kind and decent person whose attack on the victim was out of character and undoubtedly the result of his untreated mental illness. Although supporters of the petitioner attended his sentencing, none spoke on his behalf. Before imposing the petitioner's sentence, the court noted, first, that it had considered all of the sentencing materials that the parties had submitted. The court then discussed the "extremely violent" nature of the assault on the victim and the fact that the petitioner had inflicted violence on someone who had shown him compassion throughout his life. The court also disagreed with the petitioner's counsel and family members that the petitioner had never "displayed a degree of violence in the past," observing that, before the attack on the victim, the petitioner had exhibited "at least [a] propensity or proclivity to engage in conduct that creates a serious risk of injury to person ." Finally, the court expressed concern about the petitioner's "long history of . criminal conduct" and failure to comply with the treatment recommendations of various mental health professionals, including his failure to take the psychotropic medications that had been prescribed to him. In light of these considerations, the court sentenced the petitioner to a total effective prison term of eighteen years followed by two years of special parole, a sentence the court deemed necessary to protect society and to ensure that the petitioner's "rehabilitative efforts" are "strictly supervised in a correctional setting and then by special parole." The following additional facts, which are set forth in the companion case of Breton v. Commissioner of Correction , 330 Conn. 462, 196 A.3d 789, 2018 WL 6287923 (2018), also released today, are relevant to the petitioner's ex post facto claim. "In 2011, before the petitioner committed his offenses, the legislature passed No. 11-51 of the 2011 Public Acts (P.A. 11-51), § 22, codified at General Statutes § 18-98e. Section 18-98e (a) provides that certain inmates who were convicted of crimes committed on or after October 1, 1994, 'may be eligible to earn risk reduction credit toward a reduction of such person's sentence, in an amount not to exceed five days per month, at the discretion of the Commissioner of Correction .' In addition, in 2011, General Statutes (Rev. to 2011) § 54-125a (b) provided that a person convicted of a violent crime was ineligible for parole until such person served at least 85 percent of the definite sentence imposed. The legislature amended that provision in 2011 to allow the application of 'any risk reduction credit earned under the provisions of [ § 18-98e ]'; P.A. 11-51, § 25; to accelerate the date on which a violent offender would become eligible for parole. Accordingly, when the petitioner committed the offenses for which he is imprisoned, earned risk reduction credit was to be applied by the respondent both to reduce the length of a violent offender's sentence and to advance his or her initial parole eligibility date.... "In 2013, after the petitioner was sentenced, the legislature again amended § 54-125a (b) (2), this time by removing the phrase 'less any risk reduction credit earned under the provisions of [§] 18-98e.' P.A. 13-3, § 59. Thus, under the 2013 amendment, violent offenders are still eligible to earn risk reduction credit to reduce their definite sentence, but that credit is no longer applied to advance their initial parole eligibility date. Consequently, when P.A. 13-3, § 59, became effective on July 1, 2013, inmates convicted of a violent offense thereafter were required to complete 85 percent of their definite sentence before they became eligible for parole." (Citation omitted.) Breton v. Commissioner of Correction , supra, 330 Conn. at 467-68, 196 A.3d 789. On May 16, 2016, the petitioner filed an amended petition for a writ of habeas corpus, alleging that O'Connor had provided ineffective assistance of counsel by failing to arrange for the petitioner's cousin, William J. Brathwaite, Jr., to speak on his behalf at his sentencing hearing. The petitioner also claimed that the 2013 amendment to General Statutes (Rev. to 2013) § 54-125a (b) (2), as applied to him, violates the ex post facto clause because the amendment retroactively increases the amount of time he is required to serve before becoming eligible for parole. At his habeas trial, the petitioner testified in support of his claim of ineffective assistance of counsel that, prior to sentencing, he had provided O'Connor with the names of several individuals who he believed would be willing to write or address the court on his behalf, including his cousin, Brathwaite. The petitioner further testified that Brathwaite had told him that he would be willing to attend the sentencing hearing and to speak on the petitioner's behalf, and that he had expected O'Connor to arrange for Brathwaite's attendance. During his testimony at the habeas trial, Brathwaite explained that no one from O'Connor's office ever contacted him and that he would have attended and spoken at the sentencing hearing if he had known about it. Brathwaite further testified that the petitioner was raised primarily by his sister and "had a . really lousy childhood [due to] a largely absentee father who forbade most contact with his mother.... [H]is father's upbringing . was extremely violent, and he visited that upon his family, and his attitude was, I survived it-you know, now you have to, too." Brathwaite also testified that the petitioner had lived with and worked for him for many years prior to his attack on the victim and that, during that period of time, the petitioner was an exemplary employee and was otherwise "fully functional." According to Brathwaite, the petitioner appeared normal, conversant and lucid in the days before the offense, and his attack on the victim was "completely out of character for him." O'Connor also testified and stated that the petitioner knew that the court, in accordance with the petitioner's plea agreement, would impose a twenty year sentence but that the petitioner would have the right to argue that a portion of that sentence should consist of a term of special parole. O'Connor further explained that, prior to sentencing, he had informed the petitioner's family that it was extremely important that they obtain letters of support for the petitioner to present to the sentencing court. Five such letters ultimately were submitted to the court on the petitioner's behalf. Finally, in support of his ex post facto claim, the petitioner presented the testimony of Michelle Deveau, a records specialist with the Department of Correction (department), who testified that, although discretionary, risk reduction credit is awarded by the respondent routinely and that each month, the department's computer system automatically posts it to the timesheets of eligible inmates. The petitioner also adduced testimony from Heidi Palliardi, a supervisor with the department's Sentence Calculation and Interstate Management Unit, who explained that the petitioner has been and remains fully eligible for risk reduction credit and that, at the time of the habeas trial, already had earned 192 such credits. She also testified that earned risk reduction credit is subject to forfeiture, in the discretion of the respondent and after notice and a hearing, for failure to comply with institutional rules. It is undisputed, however, that the petitioner has been awarded all of the risk reduction credits for which he was eligible up to the time of the habeas trial, and there is nothing in the record to suggest that the petitioner was unlikely to continue to earn such credit. The habeas court rejected both of the petitioner's claims. With respect to the ineffective assistance claim, the court found that O'Connor had appropriately "reached out to the petitioner's family members to rally their support . at the sentencing" and that his failure also to contact Brathwaite was in no way unreasonable. More specifically, the court stated that "[t]here was nothing presented at the habeas trial that was new or substantively different from what was presented to the sentencing court" and that Braithwaite's habeas trial testimony was merely "repetitive or duplicative" of "what was presented to the sentencing court in letters from the petitioner's family members." The habeas court also concluded that the petitioner had failed to establish an ex post facto violation because, inter alia, the risk that the petitioner will suffer increased punishment as a result of the 2013 amendment to General Statutes (Rev. to 2013) § 54-125a (b) (2), the necessary predicate to his ex post facto claim, is entirely speculative due to the fact that the award of risk reduction credit is discretionary and the fact that such credit may be revoked by the respondent at any time for cause. On appeal, the petitioner claims that the habeas court incorrectly determined that he had failed to establish his ineffective assistance claim because there is a reasonable probability that he would have received a lesser sentence if Brathwaite had addressed the court on his behalf. In particular, he contends that Brathwaite's statement to the court would have "humaniz[ed]" him in ways that the other mitigation evidence did not, and that it also would have "[cast] doubt" on the state's characterization of him as "strung out on drugs and searching for . drug money" at the time of the offense. With respect to his contention under the ex post facto clause, the petitioner reasserts his claim that there is a sufficient likelihood that the 2013 amendment to General Statutes (Rev. to 2013) § 54-125a, if applied to him, would result in a later parole eligibility date than would be the case upon application of the version of § 54-125a in effect when he committed the crimes for which he is now imprisoned. I EX POST FACTO CLAIM The petitioner's ex post facto claim is controlled by our decision today in Breton v. Commissioner of Correction , supra, 330 Conn. at -, 196 A.3d 789, in which we address precisely the same ex post facto claim as we do in the present case and conclude, contrary to the determination of the habeas court, that the ex post facto clause prohibits the respondent from applying the 2013 amendment to General Statutes (Rev. to 2013) § 54-125a (b) (2) to violent offenders who, like the petitioner, committed their offenses between the effective dates of the 2011 and 2013 amendments to that statutory provision. See id., at -, 196 A.3d 789. The ex post facto clause prohibits the retroactive application of laws, including laws governing early release and parole eligibility, that impose a more onerous punishment on a defendant than the laws in existence at the time of the commission of the offense. Id., at -, -, 196 A.3d 789. As we explain in Breton, "it is unconstitutional to apply a statute that alters, to the defendant's disadvantage, the terms under which eligibility for [parole] is calculated, if that statute was enacted after the date of the underlying offense" (internal quotation marks omitted) id., at 473, 196 A.3d 789 ; and "it cannot reasonably be argued that the 2013 amendment to General Statutes (Rev. to 2013) § 54-125a (b) (2) does not alter the calculation of when [the petitioner] is eligible for parole . It clearly does so by eliminating risk reduction credit from that calculation. Indeed, the petitioner has consistently earned the maximum number of risk reduction credits that were available to him, and the respondent has provided no reason to believe either that the petitioner will be denied risk reduction credit in the future or that any credit that he earns or already has earned is likely to be revoked. In such circumstances, it strikes us as quite speculative to conclude that the petitioner's release date will not be adversely affected by retroactively applying the 2013 amendment to him." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., at 478, 196 A.3d 789. Accordingly, we agree with the petitioner that the 2013 amendment to General Statutes (Rev. to 2013) § 54-125a (b) (2), as applied retroactively to him, violates the ex post facto clause. II INEFFECTIVE ASSISTANCE OF COUNSEL The petitioner also asserts that the habeas court incorrectly concluded that O'Connor did not render ineffective assistance by virtue of his failure to arrange for Brathwaite to speak on the petitioner's behalf at the sentencing hearing. According to the petitioner, if Brathwaite had addressed the court, there is a reasonable probability that the petitioner would have received a lesser sentence. We disagree. "The issue of whether the representation that a defendant received at trial was constitutionally inadequate is a mixed question of law and fact.... As such, the question requires plenary review unfettered by the clearly erroneous standard.... "The sixth amendment [to the United States constitution] provides that in all criminal prosecutions, the accused shall enjoy the right to the effective assistance of counsel. . Under the two-pronged . test [set forth in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], a defendant can . prevail on an ineffective assistance of counsel claim [only] if he proves [both] that (1) counsel's performance was deficient, and (2) the deficient performance resulted in actual prejudice.... To demonstrate deficient performance, a defendant must show that counsel's conduct fell below an objective standard of reasonableness for competent attorneys.... To demonstrate actual prejudice, a defendant must show a reasonable probability that the outcome of the proceeding would have been different but for counsel's errors." (Citations omitted; footnote added; internal quotation marks omitted.) Davis v. Commissioner of Correction , 319 Conn. 548, 554-55, 126 A.3d 538 (2015), cert. denied sub nom. Semple v. Davis , - U.S. -, 136 S.Ct. 1676, 194 L.Ed.2d 801 (2016). It is well established that a criminal defendant's right to the effective assistance of counsel includes the right to have counsel conduct "a thorough investigation of the defendant's background" in order that evidence in mitigation of punishment may be uncovered; Williams v. Taylor , 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ; and the United States Supreme Court repeatedly has held that counsel's failure to perform such an investigation constitutes deficient performance. See, e.g., id. ; see also Porter v. McCollum , 558 U.S. 30, 40, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) ("[t]he decision not to investigate did not reflect reasonable professional judgment"). Applying these principles to the present facts, we agree with the habeas court that O'Connor was not deficient in failing to arrange for Brathwaite to attend and speak at the petitioner's sentencing. This is so because, as the habeas court explained, Brathwaite's testimony was wholly cumulative of the mitigation evidence already before the sentencing court. For example, Brathwaite's testimony regarding the petitioner's difficult childhood mirrored the information contained in the memorandum to aid in sentencing and in the mental health evaluation, both of which apprised the sentencing court about the petitioner's troubled past in considerably more detail than Brathwaite's habeas testimony. Likewise, Brathwaite's testimony vouching for the petitioner's good character and work ethic and his explanation that the conduct at issue was completely out of character were entirely repetitive of the sentiments expressed in the several letters that were submitted in support of the petitioner. For example, the petitioner's sister, Yvette Garner, wrote that the petitioner is "an amazing man who is kind, loving, caring . and generous to a fault." Two of the petitioner's cousins, Valerie Brathwaite and Cheryl DeSorbo, similarly described the petitioner as "a caring, kind, friendly man who enjoys spending time helping family and friends." Ann LeBlanc, a family friend, wrote that she was "very shocked" to learn of the petitioner's attack on the victim, explaining that the crime was not at all consistent with the "caring and thoughtful" person she knew the petitioner to be. Thus, the record fully supports the determination of the habeas court that one more attestation to the petitioner's good character and troubled childhood would not have made any difference to the sentencing court, such that it simply was unnecessary for O'Connor to call on Braithwaite to speak on the petitioner's behalf at the sentencing hearing. Indeed, the sentencing court expressly rejected the claims of defense counsel and the petitioner's family that the petitioner's attack on the victim was out of character, concluding, instead, that the sentence imposed was necessary to ensure that the petitioner would not harm anyone else and would receive the mental health treatment he required in a "strictly supervised . correctional setting and then by special parole." The petitioner's ineffective assistance claim therefore must fail. The judgment is reversed with respect to the petitioner's ex post facto claim and the case is remanded to the habeas court with direction to render judgment granting the petition as to that claim; the judgment is affirmed in all other respects. In this opinion the other justices concurred. General Statutes (Supp. 2014) § 54-125a provides in relevant part: "(b) (1) No person convicted of any of the following offenses, which was committed on or after July 1, 1981, shall be eligible for parole under subsection (a) of this section: (A) Capital felony, as provided under the provisions of section 53a-54b in effect prior to April 25, 2012, (B) murder with special circumstances, as provided under the provisions of section 53a-54b in effect on or after April 25, 2012, (C) felony murder, as provided in section 53a-54c, (D) arson murder, as provided in section 53a-54d, (E) murder, as provided in section 53a-54a, or (F) aggravated sexual assault in the first degree, as provided in section 53a-70a. (2) A person convicted of (A) a violation of section 53a-100aa or 53a-102, or (B) an offense, other than an offense specified in subdivision (1) of this subsection, where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed...." General Statutes § 18-98e provides in relevant part: "(a) Notwithstanding any provision of the general statutes, any person sentenced to a term of imprisonment for a crime committed on or after October 1, 1994, and committed to the custody of the Commissioner of Correction on or after said date, except a person sentenced for a violation of section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55, 53a-55a, 53a-70a, 53a-70c or 53a-100aa, or is a persistent dangerous felony offender or persistent dangerous sexual offender pursuant to section 53a-40, may be eligible to earn risk reduction credit toward a reduction of such person's sentence, in an amount not to exceed five days per month, at the discretion of the Commissioner of Correction for conduct as provided in subsection (b) of this section occurring on or after April 1, 2006. "(b) An inmate may earn risk reduction credit for adherence to the inmate's offender accountability plan, for participation in eligible programs and activities, and for good conduct and obedience to institutional rules as designated by the commissioner, provided (1) good conduct and obedience to institutional rules alone shall not entitle an inmate to such credit, and (2) the commissioner or the commissioner's designee may, in his or her discretion, cause the loss of all or any portion of such earned risk reduction credit for any act of misconduct or insubordination or refusal to conform to recommended programs or activities or institutional rules occurring at any time during the service of the sentence or for other good cause. If an inmate has not earned sufficient risk reduction credit at the time the commissioner or the commissioner's designee orders the loss of all or a portion of earned credit, such loss shall be deducted from any credit earned by such inmate in the future...." Article one, § 10, of the United States constitution provides in relevant part: "No State shall . pass any . ex post facto Law ." The petitioner, on the granting of certification, appealed from the judgment of the habeas court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2. Under North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), "[a]n individual accused of [a] crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime." Id., at 37, 91 S.Ct. 160. When the court inquired whether anyone wished to speak on behalf of the petitioner at the sentencing hearing. O'Connor responded that "[t]here are people here to support him, but they do not wish to speak ." The petitioner also claimed that O'Connor had provided ineffective assistance by failing to advise him regarding the availability of sentence review and to pursue such review on his behalf. The habeas court rejected this claim, and the petitioner has not raised that claim on appeal from the habeas court's judgment. We note that the habeas court also concluded that the petitioner could not prevail on his ex post facto claim, first, because the 2011 amendment to General Statutes (Rev. to 2011) § 54-125a; see Public Acts 2011, No. 11-51, § 25; was never intended to apply to violent offenders, and, second, because mandating that the respondent apply risk reduction credit to advance the petitioner's parole eligibility date would require the court to "enmesh itself" in matters of prison administration that are exclusively within the province of the respondent. Neither of these reasons is meritorious. As we explain in Breton ; see Breton v. Commissioner of Correction , supra, 330 Conn. at 469 n.5, 196 A.3d 789 ; the court's first reason is belied by the plain language of the 2011 amendment to General Statutes (Rev. to 2011) § 54-125a, and the court's second reason fails because the necessarily broad discretion afforded prison officials in the area of prison administration does not include the discretion to apply our laws in violation of an inmate's ex post facto rights. This right is made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. See, e.g., State v. Vega , 259 Conn. 374, 386, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S.Ct. 152, 154 L.Ed.2d 56 (2002). For example, the memorandum to aid in sentencing provided that the petitioner "already started 'behind the eight ball' when he was born, as he was born into an abusive and mentally challenged family. His mother was clinically depressed, and his father was an alcoholic who was physically and emotionally abusive to every family member. Before he knew the difference between right and wrong, he was sexually molested by a stranger in the public library." That memorandum further provided that the petitioner "started off drinking at the very young age of eight after being 'pushed' [in]to drinking by his father and a group of his father's friends." The petitioner's substance abuse also was discussed in his mental health evaluation, in which it was noted that the petitioner began drinking alcohol at the age of five, smoking marijuana at the age of thirteen, and using cocaine at the age of fifteen.

12505085

DE AUTO TRANSPORT, INC. v. EUROLITE, LLC, et al.

De Auto Transp., Inc. v. Eurolite, LLC

2018-11-27

AC 39973

92

97

199 A.3d 92

199

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:42.438369+00:00

Fastcase

DE AUTO TRANSPORT, INC. v. EUROLITE, LLC, et al.

DE AUTO TRANSPORT, INC. v. EUROLITE, LLC, et al. AC 39973 Appellate Court of Connecticut. Argued October 16, 2018 Officially released November 27, 2018 Robert T. Rimmer, Old Saybrook, for the appellant (plaintiff). Paul A. Catalano, for the appellees (defendants). Lavine, Alvord and Moll, Js.

2532

15757

PER CURIAM. The plaintiff, DE Auto Transport, Inc., appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the defendants, Eurolite, LLC (Eurolite), and Leopold Zayaczkowski. On appeal, the plaintiff claims that the trial court erred in its damages analysis. We disagree and, accordingly, affirm the judgment of the trial court. The following facts, as found by the trial court, and procedural history are relevant to our resolution of the plaintiff's claims on appeal. In 2008, Dariusz Penkiewicz (Dariusz) and Elzbieta Penkiewicz (Elzbieta), who were married at the time, formed the plaintiff, which provided motor vehicle services, including the transportation of vehicles. In 2011, the plaintiff had four transport vehicles. Dariusz and Zayaczkowski, on behalf of Eurolite, entered into an oral agreement whereby Eurolite would loan up to $50,000 for Dariusz to purchase a larger truck and trailer for the plaintiff. Under the terms of the agreement, the plaintiff would make payments on the loan for thirty-six months at an interest rate of 14 percent. In addition, Eurolite would receive 40 percent of the profits and the plaintiff would receive 60 percent of the profits resulting from the use of the truck and trailer for the thirty-six month term. Dariusz subsequently purchased a 2005 Peterbuilt truck for $23,500 and a Cottrell trailer for $25,000. Eurolite provided the funds for the purchase, and the parties agreed on a printed loan amortization schedule. The total amount borrowed was $48,500. The plaintiff made its first payment on the loan in March, 2011. In February, 2012, Dariusz left the United States to return to Poland because he was concerned about being deported. His absence adversely affected the business operations of the plaintiff. He did not return to the United States until January, 2014. During the time of his absence, it was Elzbieta's responsibility to manage the plaintiff. On April 27, 2013, Elzbieta contacted the police to report that the Peterbuilt truck and trailer had been wrongfully repossessed by Eurolite. Eurolite subsequently returned the Peterbuilt truck and trailer, at the direction of the police, but repossessed the Peterbuilt truck and trailer again a few days later. In May, 2013, Elzbieta learned that Dariusz had been having an extramarital affair, and had a wife and child in Poland. Elzbieta shortly thereafter liquidated the plaintiff and sold its remaining assets. She relocated to Florida, divorced Dariusz, and remarried in December, 2013. On July 12, 2013, the plaintiff served a complaint on the defendants, which alleged claims of wrongful repossession, conversion, and statutory theft. A trial to the court took place on February 25 and 26, 2016. On November 18, 2016, the court issued its memorandum of decision and rendered judgment in favor of the defendants. The court concluded that "[e]ven assuming that [the plaintiff] has sustained its burden to prove liability under one or more of the various counts of its complaint, the court finds that it has still failed to prove causation and damages." In reaching its conclusion, the court determined that "[t]he liquidation of [the plaintiff] was not caused by a repossession of the Peterbuilt truck and trailer. Rather, it occurred as a result of a combination of other events," such as "declining business revenues, [Dariusz'] return to Poland, the divorce and [Elzbieta's] desire to relocate to Florida, remarry and start her life over." On appeal, the plaintiff claims that the trial court, having assumed liability, erred in failing to award damages. Specifically, the plaintiff argues that the court "[failed] to analyze the amount of harm . caused by the defendants' wrongful repossession, conversion and statutory theft of the [Peterbuilt truck] and trailer." We disagree. "The legal principles that govern our review of damage awards are well established. It is axiomatic that the burden of proving damages is on the party claiming them.... Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.... [T]he court must have evidence by which it can calculate the damages, which is not merely subjective or speculative . but which allows for some objective ascertainment of the amount.... This certainly does not mean that mathematical exactitude is a precondition to an award of damages, but we do require that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation [that] will enable the trier to make a fair and reasonable estimate.... Evidence is considered speculative when there is no documentation or detail in support of it and when the party relies on subjective opinion.... The trial court's determination that damages have not been proved to a reasonable certainty is reviewed under a clearly erroneous standard." (Citations omitted; internal quotation marks omitted.) Weiss v. Smulders , 313 Conn. 227, 253-54, 96 A.3d 1175 (2014). At oral argument before this court, the plaintiff contended that there were three types of damages that the trial court could have awarded: (1) lost profits, (2) the value of the Peterbuilt truck, and (3) payments made to Eurolite. At trial, however, the plaintiff did not claim damages related to the value of the Peterbuilt truck or payments made to Eurolite. Therefore, we decline to review these two claims on appeal. See DiMiceli v. Cheshire , 162 Conn. App. 216, 229-30, 131 A.3d 771 (2016) ("Our appellate courts, as a general practice, will not review claims made for the first time on appeal.... [B]ecause our review is limited to matters in the record, we [also] will not address issues not decided by the trial court."). With regard to the plaintiff's claim for lost profits, the plaintiff conceded at oral argument that a report prepared by the plaintiff's certified public accountant, Robert Gollnick, was "the only evidence of economic loss." In the report, dated May 20, 2013, Gollnick concluded that the fair market value of the plaintiff was $116,000. In addition, Gollnick determined that there was "a loss of $97,810 of income for 2013 before other operating expenses." Gollnick's testimony and report were subject to a credibility determination by the court. "[I]t is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness' testimony.... Thus, if the court's dispositive finding . was not clearly erroneous, then the judgment must be affirmed.... The function of the appellate court is to review, and not retry, the proceedings of the trial court." (Internal quotation marks omitted.) Keith E. Simpson Associates, Inc. v. Ross , 125 Conn. App. 539, 543, 9 A.3d 394 (2010). A finding is clearly erroneous if there is "no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." State v. Krijger , 313 Conn. 434, 446, 97 A.3d 946 (2014). The court found Gollnick's testimony and report not credible, concluding that "[a] substantial portion of the information provided to him [by the plaintiff] was either inaccurate and/or incomplete." Specifically, the court found that Gollnick was not made aware of the loan on the Peterbuilt truck and trailer or the agreement to divide the profits on a 60/40 basis, he did not list some of the plaintiff's trucks on its tax returns, he was unaware that the parties were involved in a money laundering scheme to avoid the payment of taxes, and that Dariusz and Elzbieta "elected to omit substantially all of the disclosures required by generally accepted accounting principles." Most significantly, the court found that "when Gollnick prepared the projected income and expense for [the plaintiff] to arrive at the claimed damage figure of $116,000, he utilized tax returns for years 2010, 2011 and 2012. These returns are inaccurate and/or incomplete." Because there was evidence to support the court's credibility determination, its finding was not clearly erroneous. Consequently, no credible evidence was presented in support of the plaintiff's claim for lost profits and the court did not have a sufficient basis for estimating its amount with reasonable certainty. See Ray Weiner, LLC v. Connery , 146 Conn. App. 1, 7, 75 A.3d 771 (2013) ("[i]t is axiomatic that damages are awarded on the basis of facts and credible evidence, as found by the trier of fact" [internal quotation marks omitted] ). Therefore, we conclude that the court did not err in its damages determination. The judgment is affirmed. The complaint included five counts: (1) wrongful repossession and conversion as against Eurolite, (2) statutory theft as against Eurolite, under General Statutes § 52-564, (3) statutory theft as against Zayaczkowski, under § 52-564, (4) unfair trade practices by Eurolite, in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq., and (5) disgorgement of payments as against Eurolite. During trial, the court dismissed the CUTPA count because the plaintiff stated it was no longer pursuing that claim. In addition, the court noted in its memorandum of decision that "[t]he plaintiff has not addressed the disgorgement of payment claim in its posttrial brief, and, more specifically, has not cited to a single case or other legal authority in its brief regarding the disgorgement of payment claim. As such, the plaintiff has abandoned that claim." On appeal, the plaintiff does not dispute the court's finding that it abandoned the disgorgement claim. Both parties briefed additional arguments related to the Eurolite's liability for wrongful possession, conversion, and statutory theft. For purposes of this appeal, this court, like the trial court, will assume, without deciding, that the plaintiff established liability. Therefore, we turn to the plaintiff's challenges to the trial court's determination of damages. The plaintiff also argues that the court "created a new element of 'causation' and added it to the elements necessary to prove wrongful repossession, conversion and statutory theft." This claim is without merit. The court did not err in determining that, in order for the plaintiff to recover damages for its liquidation, the liquidation must have been caused by the wrongful repossession, conversion, or statutory theft. Moreover, the court's conclusion that "[t]he liquidation of [the plaintiff] was not caused by a repossession of the Peterbuilt truck and trailer [but rather] occurred as a result of a combination of other events" was supported by the evidence presented at trial. See State v. Krijger , 313 Conn. 434, 446, 97 A.3d 946 (2014) (finding is clearly erroneous if there is "no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed"). Dariusz testified that he went to Poland in 2012 and left Elzbieta to make all of the decisions for the plaintiff. Elzbieta testified that she decided to terminate the business at the end of May, 2013, "when [she] found out [her] husband [was] cheating on [her] and he . had a family in Poland . and [she] didn't get the big truck ." There was also evidence to support the court's finding that the plaintiff had declining business revenues. First, Dariusz testified that, in January or February, 2013, he purchased a trailer for the plaintiff but could not purchase a truck because he had "no money to buy the truck." In addition, in April, 2013, Elzbieta located another larger truck and trailer that she wanted to purchase, but was denied a loan because of poor credit and could not make the purchase. Similarly, in May, 2013, Elzbieta applied for a replevin bond, which was denied because of poor credit. Moreover, the plaintiff's payments to Eurolite on the loan became past due. Because there was evidence to support the court's conclusion that the liquidation of the plaintiff was caused by events other than Eurolite's repossession of the Peterbuilt truck and trailer, its determination was not clearly erroneous. The plaintiff also argues that it was entitled to statutory damages under General Statutes § 36a-785 (i). The plaintiff argues that "upon a finding of liability under [General Statutes § 36a-770 et seq. ] damages must be awarded." (Emphasis omitted.) At trial, however, the plaintiff did not claim statutory damages. In its complaint and posttrial brief, it claimed that § 36a-785 did not apply because there was no written retail installment contract. It argued, alternatively, that repossession would still be wrongful under § 36a-785. The plaintiff did not seek statutory damages under § 36a-785 (i). Therefore, we decline to review this claim on appeal. See DiMiceli v. Cheshire , 162 Conn. App. 216, 229-30, 131 A.3d 771 (2016) ("Our appellate courts, as a general practice, will not review claims made for the first time on appeal.... [B]ecause our review is limited to matters in the record, we [also] will not address issues not decided by the trial court."). The only claim that the plaintiff raised before its appeal regarding payments made to Eurolite was its claim for disgorgement of payments. On appeal, however, the plaintiff does not challenge the court's finding that it abandoned this claim. See footnote 1 of this opinion. With regard to the value of the Peterbuilt truck, the plaintiff contends that it presented evidence as to the cost of the Peterbuilt truck and trailer when it was first purchased. The plaintiff, however, did not seek the value as damages in its complaint, at trial, or in its posttrial brief. At trial, Gollnick first testified that the $97,810 loss "[reflected] the loss of the vehicle," but later testified that "it was the loss of the business, but that resulted from the loss of the truck ." The trial court found that the plaintiff made payments to third parties, not reported to the Internal Revenue Service, to avoid paying taxes. The testimony at trial provided a basis for the court's finding. Gollnick testified that he "was never told that there was a loan" or that 40 percent of the profit went to Eurolite. He conceded that the value of the Peterbuilt truck would change if 40 percent belonged to someone else and that the fair market value would be reduced. In addition, he conceded that the Peterbuilt truck was not listed on the 2012 tax return and explained that he "wasn't given the . proper information." Rather, he listed only three trucks on the tax return even though he knew that the plaintiff had five trucks. Moreover, Gollnick testified that he did not know about the money laundering, and that he "would have an ethical question if [he] knew about it at the time and [he] probably would've not done it." Lastly, Gollnick's report states that "Dariusz & Elzbieta Penkiewicz have elected to omit substantially all of [the] disclosures required by generally accepted accounting principles. If the omitted disclosures were included in the statement of financial condition, they might influence the user's conclusions about the financial condition of Dariusz & Elzbieta Penkiewicz."

12503303

U.S. BANK NATIONAL ASSOCIATION, Trustee v. Karin C. EICHTEN, et al.

U.S. Bank Nat'l Ass'n v. Eichten

2018-09-18

AC 39679

328

366

196 A.3d 328

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

U.S. BANK NATIONAL ASSOCIATION, Trustee v. Karin C. EICHTEN, et al.

U.S. BANK NATIONAL ASSOCIATION, Trustee v. Karin C. EICHTEN, et al. AC 39679 Appellate Court of Connecticut. Argued January 25, 2018 Officially released September 18, 2018 Loraine Martinez, with whom were David F. Lavery, Hartford, and, on the brief, Sarah E. White, Macon, GA, for the appellant (named defendant). Pierre-Yves Kolakowski, Greenwich, with whom, on the brief, was Zachary Grendi, New York, NY, for the appellee (plaintiff). Alvord, Keller and Bright, Js.

17491

109156

KELLER, J. In this foreclosure action, the defendant Karin C. Eichten appeals from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, U.S. Bank National Association, as trustee, successor in interest to Bank of America, National Association as trustee as successor by merger to LaSalle Bank, National Association as trustee for Washington Mutual Mortgage Pass-Through Certificates WMALT 2007-HY2. The defendant claims that, in rendering summary judgment as to liability in the plaintiff's favor with respect to the plaintiff's foreclosure complaint, the court erred in concluding that a genuine issue of material fact did not exist with respect to her special defenses of equitable estoppel, breach of the covenant of good faith and fair dealing, promissory estoppel, unclean hands, and breach of contract, all of which pertain to the conduct of the plaintiff's loan servicer, Chase Home Finance, LLC (Chase), in denying the defendant's application for a loan modification under the federal Home Affordable Modification Program (HAMP). Additionally, the defendant claims that the court improperly rendered summary judgment in the plaintiff's favor on her counterclaim sounding in breach of contract. We reverse the judgment of the trial court. "In February, 2009, faced with a nationwide foreclosure crisis, the Secretary of the Treasury and the Director of the Federal Housing Finance Agency exercised their authority under the Emergency Economic Stabilization Act, the American Recovery and Reinvestment Act, and the Troubled Asset Relief Program, 12 U.S.C. § 5201 - 5253, and created [HAMP]." Belyea v. Litton Loan Servicing, LLP , United States District Court, Civil Action No. 10-10931-(DJC), 2011 WL 2884964, *2 (D. Mass. July 15, 2011). HAMP was a national home mortgage modification program aimed at helping at-risk homeowners who were in default or at imminent risk of default by reducing monthly payments to sustainable levels through the restructuring of their mortgages without discharging any of the underlying debt. Id. It was designed to create a uniform loan modification process governed by federal standards that could be used by any loan servicer that chose to participate. Id."As an incentive for servicers to participate in HAMP, the federal government awards servicers three annual $1,000 payments for each permanent mortgage loan that [was] successfully modified ." Id. On August 28, 2013, the plaintiff commenced this action against the defendant to foreclose on its mortgage on the defendant's property at 630 Cook Hill Road in Cheshire. The defendant filed a substitute answer and special defenses. The defendant alleged in her special defenses that (1) the plaintiff is equitably estopped from proceeding with the foreclosure action because the plaintiff instructed her to default on her note and mortgage obligations, resulting in her credit rating being negatively impacted; (2) the plaintiff breached the covenant of good faith and fair dealing by instructing her to default on her note and mortgage obligations without informing her that a default would result in adverse consequences such as acceleration of the debt; (3) the plaintiff is precluded by promissory estoppel from pursuing a foreclosure action because the plaintiff induced the defendant to default and promised her the offer of a loan modification if she made three trial period payments, and the defendant relied on that promise to her detriment because she never received the promised offer; (4) the plaintiff is guilty of unclean hands because, although she qualified for a loan modification upon completion of her trial period payments, the plaintiff did not offer her a loan modification, but instead, placed her in a forbearance program without her consent; and (5) the plaintiff breached a contract between the parties by failing to offer the defendant a loan modification after she performed her part of the bargain by making the three agreed upon trial period payments. In her substitute counterclaim, the defendant alleged that the plaintiff breached a contract between the parties when it failed to offer her a loan modification after the defendant performed her obligations under the contract by making her three trial period payments and continued to meet all program eligibility requirements during the trial period. The plaintiff filed an answer to the defendant's counterclaim on September 29, 2015, in which it posited that the alleged contract did not comply with the statute of frauds, and that the counterclaim is legally insufficient and barred by the doctrines of waiver and estoppel. On November 12, 2015, the plaintiff moved for summary judgment as to liability on its complaint, claiming that the defendant's special defenses are insufficient because they are not supported by any evidence and cannot defeat the plaintiff's prima facie showing that it is entitled to foreclose on the subject property. The plaintiff also argued that the defendant's counterclaim is barred by the statute of frauds and has no factual basis. In support of its motion for summary judgment, the plaintiff provided the court with the affidavit of Michael Piz, a document control officer with the plaintiff's subsequent loan servicer, Select Portfolio Servicing, Inc., the contents of which are summarized as follows. On December 15, 2006, the defendant executed an adjustable rate note to pay Washington Mutual Bank, FA (Washington Mutual), the principal sum of $480,000, payable with interest, including late charges, costs, and expenses. The indebtedness evidenced by the note was secured by a mortgage, which also is dated December 15, 2006, on the defendant's property at 630 Cook Hill Road in Cheshire. Washington Mutual endorsed the note in blank and on or about September 9, 2009, the Federal Deposit Insurance Corporation, as receiver of Washington Mutual, executed an assignment of the mortgage to the plaintiff. The assignment later was corrected due to a clerical error in the name of the plaintiff in the original assignment. Copies of the note, mortgage, assignment, and corrected assignment were annexed to the plaintiff's motion for summary judgment as exhibits. In 2009, the defendant defaulted pursuant to the terms of the note and mortgage, and the plaintiff notified her of the default. The notice of default advised that if the amount required to cure the default was not received within sixty days, immediate acceleration of all moneys due under the note and mortgage could be declared without further notice or demand. Piz further avers that the defendant failed to cure her default and, as a result, the plaintiff elected to accelerate the total amount of the indebtedness due and owing by commencing this action. No part of the outstanding indebtedness has been paid by the defendant. Subsequently, the defendant received multiple notices of her default, including notices on November 30, 2009, January 21, 2010, and May 10, 2010. Piz further alleges that the plaintiff is in physical possession of the original loan documents, including, without limitation, the original note endorsed in blank, and was in possession of the same at the time this action was commenced. Piz also addresses in his affidavit what transpired regarding the defendant's application for a HAMP loan modification. On July 15, 2010, the plaintiff sent the defendant a letter offering her a trial period plan (TPP). A copy of this letter is annexed to the motion for summary judgment. It reads, in pertinent part: "You are approved to enter into a [TPP] under [HAMP]. This is the first step toward qualifying for more affordable mortgage payments.... To accept this offer, you must make new monthly 'trial period payments' in place of your normal monthly mortgage payment.... After all trial period payments are timely made and you continue to meet all program eligibility requirements, your mortgage would then be permanently modified. You will be required to execute a permanent mortgage modification agreement that we will send you before your modification becomes effective. Until then, your existing loan and loan requirements remain in effect and unchanged during the trial period. If each trial payment is not received by us in the month in which [it] is due, this offer will end and your loan will not be modified under [HAMP]." (Emphasis omitted.) The letter also includes answers to "frequently asked questions," one of which advised the borrower that "[y]our credit score may be affected by accepting a [TPP] or modification." In response to a question, "[w]hen will I know if my loan can be modified permanently and how will the modified loan balance be determined?" the letter provided, "[o]nce we confirm you are still eligible for [HAMP] and you make all of your trial period payments on time, we will send you a modification agreement detailing the terms of the modified loan." Piz further avers in his affidavit that in or about May and June, 2011, the defendant sent the plaintiff evidence of her combined income with her then "spouse," and that, on the basis of the defendant's profit and loss statement and pay stubs, the plaintiff calculated that the defendant and her "spouse" had a combined monthly income of $13,826.35 and a total housing expense of $3423.94. Thus, the defendant's "housing ratio," or housing expense as a percentage of household income, was 24.76 percent. Under the then applicable HAMP guidelines, the borrower's current monthly mortgage payment could not be less than 31 percent of the borrower's household monthly gross income to qualify for a loan modification. Consequently, the plaintiff concluded that "[b]orrower [h]ousing [r]atio exceeds the maximum for our lending program." In addition, the plaintiff submitted a handbook for the HAMP program, version 3.2, which indicated that one of the requirements under the program was that "verified income documentation must confirm that the borrower's monthly mortgage payment ratio prior to the modification is greater than 31 percent." On July 15, 2011, the plaintiff sent the defendant a letter explaining that the defendant had been denied a permanent modification because her "housing ratio exceeds the maximum allowed for the modification program." The plaintiff sent another letter to the defendant on July 28, 2011, explaining in greater detail why the defendant's housing ratio made her ineligible for a loan modification under HAMP. Although the reference in the July 15, 2011 letter to a "housing ratio that exceeds the maximum allowed" is confusing, the July 28, 2011 letter clearly explains why the defendant's housing expense was not a large enough percentage of her household income to qualify for a loan modification. The defendant filed her objection to the motion for summary judgment on January 11, 2016, essentially asserting that the evidence relevant to her special defenses and counterclaim, which involve the plaintiff's course of conduct in considering and ultimately denying her loan modification application, creates a genuine issue of material fact as to whether the plaintiff should be permitted to proceed to foreclosure. The defendant attached her own affidavit to her objection to the motion for summary judgment, summarized as follows. She faithfully submitted her mortgage payments in a timely fashion and without incident until late 2009. In the beginning of 2009, she was laid off from her job and forced to use her cash reserves and savings to make her payments. She became concerned about her continued ability to make her payments. In the fall of 2009, she contacted her loan servicer, Chase, to discuss mortgage assistance options and was told by a representative that Chase would not speak to her unless or until she stopped making her payments. As a result of her reliance on this information, she stopped making any payments commencing on October 1, 2009. The plaintiff did not follow through with its promise to help her with mortgage assistance, and she had to retain a law firm to help her. Starting in March, 2010, and continuing until July, 2010, she supplied the plaintiff with all of the financial information it requested of her. The defendant attached additional documentation to her objection to the plaintiff's summary judgment motion, focusing on her participation in the TPP and the plaintiff's denial of her application for a loan modification. After the defendant retained counsel, the plaintiff finally sent the defendant a letter dated July 15, 2010, congratulating her and stating that she was "approved to enter into a [TPP] under the [HAMP] (program)," and explaining that "[t]his is the first step toward qualifying for more affordable mortgage payments.... After all trial period payments are timely made and you continue to meet all program eligibility requirements, your mortgage would then be permanently modified. You will be required to execute a permanent mortgage modification agreement that we will send you before your modification becomes effective. Until then, your existing loan and loan requirements remain in effect and unchanged during the trial period." Under the plan, the defendant was to make three consecutive monthly payments of $3373.86 on August 1, September 1, and October 1, 2010. In her affidavit, the defendant avers that she timely made all three payments under the TPP and some additional trial payments into 2011. The plaintiff continued to send her letters on different letterhead and from different locations, asking her for the same financial information and thanking her for her interest in a HAMP modification. According to the defendant, to be safe, she kept resending the requested information to the plaintiff. She also avers that she received two notices that her request for unemployment forbearance had been received even though she had never made any such request. Finally, the defendant avers that the plaintiff, approximately nine months after the TPP had ended, sent her a letter dated July 15, 2011, which stated that "[w]e received your request for a permanent loan modification . We are unable to offer you a modification through the federal [program] . This decision was confirmed through a second level of review.... We are unable to offer you a modification because your housing ratio exceeds the maximum allowed for the modification program." The letter also recommended other possible options for the defendant to avoid foreclosure. As part of her objection to the plaintiff's motion for summary judgment, the defendant also submitted internal documents of the plaintiff and a number of other letters sent to her by the plaintiff. The plaintiff does not dispute the existence or accuracy of these documents or letters, which reveal the following. In or about June and July, 2010, the defendant submitted to the plaintiff a loan modification application with supporting documents. The plaintiff reviewed these submissions, which included bank statements from the defendant's business from February through May, 2010, and a contribution letter and pay stubs from the defendant's fiancé from May and June, 2010. The analysis, called an "MOD Summary Report," revealed that the defendant's housing ratio was 37.892 percent, which was within HAMP's limits for approval of a loan modification. As a result, the plaintiff forwarded the defendant a letter offering her a TPP. In August, 2010, the plaintiff sent the defendant a letter requesting a packet of financial information regarding her loan modification request. In September, 2010, the plaintiff sent the defendant another letter stating that it was still waiting for the requested package of information to be returned. In and about February and March, 2011, according to an updated MOD Summary Report, the plaintiff again reviewed the defendant's application, determined that her housing ratio was 31.208 percent, which was still within HAMP limits, and, the defendant claims, approved her pending application for a loan modification. On March 10, 2011, the plaintiff entered the following messages into its Loss Mitigation Tracking Steps system: "Final Review Complete," "Order/Prepare Mod Docs," and "QA Final Approved," which corresponded to a charge of $2838.92 to the defendant's bank account. There is no dispute that the plaintiff never sent the defendant any permanent loan modification documents. The Loss Mitigation Tracking Steps later reflect that on July 11, 2011, the defendant was found ineligible for a loan modification. In its reply to the defendant's opposition to the motion for summary judgment, the plaintiff claimed that despite the defendant's allegations of the plaintiff's internal generation of alleged final loan modification documents, the defendant admits she never received or accepted the final loan modification documents. The plaintiff also argued that the defendant's special defenses do not relate to the making, validity or enforcement of the note, and that her counterclaim does not have a sufficient connection to the making, validity or enforcement of the note and mortgage to satisfy the "transaction test" in Practice Book § 10-10. On May 23, 2016, the court held a hearing on the plaintiff's motion for summary judgment. After oral argument, the defendant filed a supplemental brief in opposition to the motion for summary judgment on May 23, 2016. Following the hearing, the court summarily granted the plaintiff's motion for summary judgment. On July 8, 2016, the defendant filed a motion for clarification of whether the court's order granting the summary judgment motion pertained to her counterclaim. The court issued an order on September 8, 2016, stating that its ruling included rendering summary judgment on the defendant's counterclaim. On September 12, 2016, the court rendered judgment of strict foreclosure with a law day of December 5, 2016. This appeal followed. Thereafter, on October 27, 2016, the defendant filed a motion for articulation of the court's granting of the plaintiff's motion for summary judgment. The defendant requested that the court articulate its "findings of fact and conclusions of law upon which the trial court relied in granting the motion for summary judgment as to the special defenses and counterclaim of the defendant ." (Emphasis omitted.) On February 15, 2017, the court issued an articulation. In its articulation, the court determined that "the plaintiff has established the absence of a genuine issue of material fact regarding the prima facie case for foreclosure," and that none of the defendant's special defenses raised a genuine issue of material fact that might defeat the plaintiff's cause of action. The court also concluded that summary judgment was appropriate on the defendant's breach of contract counterclaim. The court determined that the undisputed facts show that the parties did not enter into a new contract and that the defendant's counterclaim regarding the denial of her application for a loan modification did not present an issue that satisfied the transaction test in Practice Book § 10-10. Finally, the court ruled that even if the transaction test were satisfied, the counterclaim was barred by the statute of frauds, General Statutes § 52-550, because the amount due on the note was $480,000, which exceeds the threshold amount of $50,000 for loan agreements in the statute, and thus any contract for a modification needed to be in writing. We first set forth the applicable standard of review. "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.... Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Rosenfield v. I. David Marder & Associates, LLC , 110 Conn. App. 679, 684, 956 A.2d 581 (2008). A material fact is one that makes a difference in the outcome of a case. Catz v. Rubenstein , 201 Conn. 39, 48, 513 A.2d 98 (1986). "Summary judgment shall be granted if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... The trial court must view the evidence in the light most favorable to the nonmoving party.... "Appellate review of the trial court's decision to grant summary judgment is plenary.... [W]e must [therefore] decide whether [the trial court's] conclusions are legally and logically correct and find support in the facts that appear in the record." (Citations omitted; internal quotation marks omitted.) McFarline v. Mickens , 177 Conn. App. 83, 90, 173 A.3d 417 (2017), cert. denied, 327 Conn. 997, 176 A.3d 557 (2018). "In order to establish a prima facie case in a mortgage foreclosure action, the plaintiff must prove by a preponderance of the evidence that it is the owner of the note and mortgage, that the defendant mortgagor has defaulted on the note and that any conditions precedent to foreclosure, as established by the note and mortgage, have been satisfied.... Thus, a court may properly grant summary judgment as to liability in a foreclosure action if the complaint and supporting affidavits establish an undisputed prima facie case and the defendant fails to assert any legally sufficient special defense." (Internal quotation marks omitted.) Wells Fargo Bank, N.A. v. Strong , 149 Conn. App. 384, 392, 89 A.3d 392, cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014). "[A] holder of a note is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under [ General Statutes § 49-17 ].... It [is] for the defendant to set up and prove the facts which limit or change the plaintiff's rights." (Internal quotation marks omitted.) Equity One, Inc. v. Shivers , 310 Conn. 119, 135, 74 A.3d 1225 (2013). "[T]he party raising a special defense has the burden of proving the facts alleged therein." Wyatt Energy, Inc. v. Motiva Enterprises, LLC , 308 Conn. 719, 736, 66 A.3d 848 (2013). "If the plaintiff in a foreclosure action has shown that it is entitled to foreclose, then the burden is on the defendant to produce evidence supporting its special defenses in order to create a genuine issue of material fact ." WM Specialty Mortgage, LLC v. Brandt , Superior Court, judicial district of Ansonia-Milford, Docket No. CV-09-5001157-S, 2009 WL 567040, *4 (February 10, 2009) ; see Union Trust Co. v. Jackson , 42 Conn. App. 413, 417-20, 679 A.2d 421 (1996). Legally sufficient special defenses alone do not meet the defendant's burden. "The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.... Further . [t]he applicable rule regarding the material facts to be considered on a motion for summary judgment is that the facts at issue are those alleged in the pleadings." (Citation omitted; internal quotation marks omitted.) Fidelity Bank v. Krenisky , 72 Conn. App. 700, 718, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). "[B]ecause any valid special defense raised by the defendant ultimately would prevent the court from rendering judgment for the plaintiff, a motion for summary judgment should be denied when any [special] defense presents significant fact issues that should be tried." (Internal quotation marks omitted.) Ulster Savings Bank v. 28 Brynwood Lane , Ltd. , 134 Conn. App. 699, 704, 41 A.3d 1077 (2012). I First, the defendant claims that the court improperly rendered summary judgment against her as to liability on the foreclosure complaint because genuine issues of material fact exist with respect to her special defenses of equitable estoppel, breach of the covenant of good faith and fair dealing, promissory estoppel, unclean hands, and breach of contract. We agree with the defendant that her special defense of unclean hands raises a genuine issue of material fact, and therefore, summary judgment in favor of the plaintiff should not have been rendered. We disagree, however, that the remainder of the defendant's special defenses precluded summary judgment in the plaintiff's favor. A The defendant claims in her fifth special defense that the plaintiff violated the doctrine of unclean hands and should be precluded from proceeding with the foreclosure action because the plaintiff did not offer her a permanent loan modification under the program despite the fact that, pursuant to regulations published by the United States Department of the Treasury, she was entitled to a permanent modification upon the completion of her three trial payments. She argues that instead, the plaintiff placed her into a mortgage forbearance program for which she did not apply. She contends that the plaintiff's internal records indicate that it approved her for a loan modification under the program in March, 2011, months before it mailed her the denial letter. She argues that a number of documents in evidence suggest that the plaintiff approved the defendant for a loan modification in March, 2011, when she had a housing ratio of 31.2 percent. She notes that the plaintiff only appended evidence to its motion for summary judgment that supported its version of the narrative while failing to make any argument or even reference to its own internal processes, evidence of which raises more questions than answers. We agree with the defendant. Because an action to foreclose a mortgage is an equitable proceeding, the doctrine of unclean hands may be applicable. "It is a fundamental principle of equity jurisprudence that for a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands.... The clean hands doctrine is applied not for the protection of the parties but for the protection of the court.... It is applied not by way of punishment but on considerations that make for the advancement of right and justice.... The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue.... Unless the plaintiff's conduct is of such a character as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean hands does not apply." (Citation omitted; internal quotation marks omitted.) Thompson v. Orcutt , 257 Conn. 301, 310, 777 A.2d 670 (2001). "The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation.... The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts' integrity dictate that the clean hands doctrine be invoked." (Internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino , 87 Conn. App. 401, 407, 867 A.2d 841 (2005). "Wilful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse.... [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.... Not only the action producing the injury but the resulting injury also must be intentional." (Internal quotation marks omitted.) 19 Perry Street, LLC v. Unionville Water Co. , 294 Conn. 611, 630-31 n.10, 987 A.2d 1009 (2010). This special defense questions the legitimacy of the plaintiff's processing of the defendant's application for a loan modification. It raises a question as to why the plaintiff failed to send the defendant a permanent loan modification agreement if she was approved for a loan modification in March, 2011. The court rejected the defendant's special defense of unclean hands and characterized it as another "inducement to default" special defense, similar to the defendant's equitable estoppel special defense. We, however, conclude that the nature of the allegations in this special defense are distinguishable. The defendant submitted as evidence a copy of a supplemental directive issued on January 28, 2010, by the Treasury Department to provide guidance to loan servicers in making HAMP eligibility determinations for borrowers currently participating in a TTP. This directive notes a change from a prior directive issued in 2009, which gave loan servicers the option of placing a borrower into a TPP on the basis of verbal financial information obtained from the borrower, subject to later verification during the TPP. Effective on or after June 1, 2010, a loan servicer was instructed to evaluate a borrower for HAMP only after the servicer received an initial package that included a request for modification and an "affidavit (RMA) form," an Internal Revenue Service form 4506-T or 4506T-EZ to request transcripts of tax returns, and documentation of income that may not be more than ninety days old as of the date the initial package is received by the servicer. If the loan servicer received an incomplete initial package or needed additional documentation to verify the borrower's eligibility and income, the servicer had to send the borrower an "Incomplete Information Notice" that lists the additional required verification documentation. Loan servicers were required to use a two step process for HAMP modifications. In referencing conversion from trial to permanent modification, the directive stated: "Following underwriting and a determination that the borrower qualifies for a HAMP trial modification, servicers will place qualified borrowers in a trial period plan by preparing and sending a [TPP] [n]otice to the borrower describing the terms of the trial modification and the payment due dates. Borrowers who make all trial period payments timely and who satisfy all other trial period requirements will be offered a permanent HAMP modification." In this case, the plaintiff produced no evidence that it made a determination as to the defendant's eligibility for a HAMP modification at the end of her TPP, which was at the end of the month in which she made her third payment, October, 2010. Furthermore, there is evidence in the defendant's submissions that the defendant's application was approved by the plaintiff in March, 2011, and the plaintiff has produced no evidence to explain why it failed, at that time, to complete the process and forward to the defendant an offer of a permanent loan modification. In addition, there is no evidence that the plaintiff ever sent the defendant the required "Incomplete Information Notice" that her documentation was incomplete, as required by the directive. The plaintiff's failure to establish that it adhered to the Treasury Department's directives, which appear to encourage that final determinations on whether to offer the borrower a loan modification be made before the end of the TPP, and the plaintiff's failure to provide an explanation as to its apparent internal approval of the loan modification in March, 2011, which was not communicated to the defendant, create a genuine issue of material fact as to whether the defendant can prevail on her special defense of unclean hands. When viewing the evidence in the light most favorable to the defendant, the unexplained length of time it took the plaintiff to deny the defendant an offer of a permanent modification, almost twenty months, commencing with the date it told her that the only way to explore modification of her loan was to stop paying in November, 2009, and ending with the date it denied her a modification, July 15, 2011, raises the question of whether the plaintiff treated the defendant in a fair, equitable and honest manner knowing that prolonged delay would place the defendant in an untenable financial situation, such that she could not possibly extricate herself to prevent foreclosure. We have no evidentiary basis to determine if wilful misconduct or simple negligence occurred in the plaintiff's handling of her application. We, therefore, conclude that the court erred in determining that there was no genuine issue of material fact as to whether the defendant can prevail on her special defense of unclean hands. B Having concluded that there is a genuine issue of material fact raised in the allegations in the defendant's unclean hands special defense, we next address the plaintiff's argument that this special defense is invalid because it does not relate to the making, validity, or enforcement of the note and mortgage. The court did not expressly address or rely on this rationale, but we address it because it presents a question of law that is subject to plenary review. See, e.g., TD Bank, N.A. v. J & M Holdings, LLC , 143 Conn. App. 340, 343, 70 A.3d 156 (2013) (issues concerning legal sufficiency of pleading subject to plenary review). In mortgage foreclosure cases, "courts require that a viable legal defense directly attack the making, validity or enforcement [of the note and mortgage]." (Internal quotation marks omitted.) CitiMortgage, Inc. v. Rey , 150 Conn. App. 595, 603, 92 A.3d 278, cert. denied, 314 Conn. 905, 99 A.3d 635 (2014). "[S]pecial defenses which are not limited to the making, validity or enforcement of the note or mortgage fail to assert any connection with the subject matter of the foreclosure action and as such do not arise out of the same transaction as the foreclosure action." (Internal quotation marks omitted.) Id., at 600, 92 A.3d 278. In U.S. Bank National Assn. v. Sorrentino , 158 Conn. App. 84, 97, 118 A.3d 607, cert. denied, 319 Conn. 951, 125 A.3d 530 (2015), this court concluded that counterclaims that addressed the plaintiff's alleged improper conduct concerning the defendants' qualification for a possible loan modification during a foreclosure mediation program that began after the execution of the note and mortgage did "not reasonably relate to the making, validity or enforcement of the note or mortgage," and, thus, could not be joined properly with the complaint. Recently, in U.S. Bank National Assn. v. Blowers , 177 Conn. App. 622, 625-26, 172 A.3d 837, cert. granted, 328 Conn. 904, 177 A.3d 1160 (2018), an appeal from a judgment of strict foreclosure, this court held that the trial court properly granted the plaintiff's motion to strike the defendants' special defenses and counterclaims. The counterclaims sounded in negligence; violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. ; and unjust enrichment. U.S. Bank National Assn. v. Blowers , supra, at 626, 172 A.3d 837. The special defenses sounded in equitable estoppel, unjust enrichment and unclean hands. Id. The defendants in Blowers claimed that shortly after they had defaulted on their mortgage payments, a servicing agent for the plaintiff reached out to the defendants, offering a rate reduction. Id., at 628, 172 A.3d 837. After the defendants successfully completed a three month trial modification period, however, the plaintiff withdrew its offer to modify the loan and ultimately commenced a foreclosure action. Id. The defendants essentially claimed that the plaintiff and its servicing agent failed to conduct themselves in a manner that was fair, equitable and honest during the court mediation and loan modification negotiation period. Id. Relying on U.S. Bank National Assn. v. Sorrentino , supra, at 96, 118 A.3d 607, this court held that the alleged improper conduct occurring during mediation and modification negotiations lacked "a reasonable nexus to the making, validity, or enforcement of the note or mortgage." U.S. Bank National Assn. v. Blowers , supra, at 632, 172 A.3d 837. By contrast, if "the modification negotiations ultimately result in a final, binding, loan modification, and the mortgagee subsequently breaches the terms of that new modification, then any special defenses asserted by the mortgagor in regard to that breach would relate to the enforcement of the mortgage." Id., at 630, 172 A.3d 837. The court in Blowers further noted that "our courts have allowed exceptions to the making, validity, or enforcement requirement where traditional notions of equity would not be served by its strict application. For example, in Thompson v. Orcutt , [supra, 257 Conn. at 301, 777 A.2d 670], our Supreme Court reversed this court's determination that a special defense of unclean hands did not apply where the plaintiff's fraudulent conduct occurred in a separate bankruptcy proceeding that was not strictly related to the making, validity, or enforcement of the note or mortgage. In reversing this court's decision, the Supreme Court observed that the plaintiff would not have had the legal authority to bring the foreclosure action against the defendants but for its fraudulent conduct during the bankruptcy proceeding.... The court [in Thompson ] noted, [b]ecause the doctrine of unclean hands exists to safeguard the integrity of the court . [w]here a plaintiff's claim grows out of or depends upon or is inseparably connected with his own prior fraud, a court of equity will, in general, deny him any relief, and will leave him to whatever remedies and defenses at law he may have." (Citation omitted; internal quotation marks omitted.) U.S. Bank National Assn. v. Blowers , supra, 177 Conn. App. at 633-34, 172 A.3d 837. Our Supreme Court further clarified that an equitable defense of unclean hands need not strictly relate to the making, validity, or enforcement of the note or mortgage, provided the allegations set forth were "directly and inseparably connected" to the foreclosure action. (Internal quotation marks omitted.) Thompson v. Orcutt , supra, at 313, 777 A.2d 670. Thus, we are not persuaded by the plaintiff's argument that the defendant's unclean hands defense is invalid because it does not relate to the making, validity, or enforcement of the note. First, the defense of unclean hands, as our Supreme Court recognized, does not necessarily need to relate to the making, enforcement, or validity of the loan. Second, if the plaintiff did engage in fraudulent conduct by deliberately failing to communicate its internal approval of the loan modification, then that raises questions as to whether, but for this conduct, the plaintiff would have had the legal authority to bring this action. We conclude that the allegations in the defendant's special defense of unclean hands raise a genuine issue of material fact as to whether deceitful or unfair practices on the part of the plaintiff led to the filing of a foreclosure action that could have been avoided by the timely processing of the defendant's application for a permanent loan modification in accordance with the HAMP guidelines. The plaintiff's submissions do not satisfactorily defeat the evidence set forth in the defendant's objection that HAMP's required procedures may not have been followed during the TPP process. Thus, the court erred in rendering summary judgment in favor of the plaintiff in light of the defendant's unclean hands special defense. C Because we conclude that the case is to be remanded for further proceedings, it is appropriate for us to address certain issues raised by the defendant that are likely to recur on remand. See Sullivan v. Metro-North Commuter Railroad Co. , 292 Conn. 150, 164, 971 A.2d 676 (2009). The defendant claims that the court erred in concluding that her equitable estoppel special defense failed to raise a genuine issue of material fact as to whether the plaintiff induced her default. In this special defense, the defendant alleges that the plaintiff advised her that she had to stop making her mortgage payments, as this was the only way to explore a modification. She claims that the plaintiff should be equitably estopped from foreclosing on her mortgage because "the event of default was contrived by [the plaintiff]," who "reported the default to various credit reporting agencies . which substantially interfered with her ability to . pursue refinancing options with other financial institutions." We are not persuaded. "The doctrine of equitable estoppel is well established. [W]here one, by his words or actions, intentionally causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief, so as injuriously to affect his previous position, he is [precluded] from averring a different state of things as existing at the time.... Our Supreme Court . stated, in the context of an equitable estoppel claim, that [t]here are two essential elements to an estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other.... Broadly speaking, the essential elements of an equitable estoppel . as related to the party to be estopped, are: (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts." (Internal quotation marks omitted.) TD Bank, N.A. v. M.J. Holdings, LLC , 143 Conn. App. 322, 337-38, 71 A.3d 541 (2013). "Estoppel rests on the misleading conduct of one party to the prejudice of the other." (Internal quotation marks omitted.) Fischer v. Zollino , 303 Conn. 661, 668, 35 A.3d 270 (2012). In opposing summary judgment, the defendant argued that the plaintiff should be equitably estopped from bringing the foreclosure action because she withheld mortgage payments beginning in October, 2009, only after the plaintiff advised her "that in order to discuss modification options, she would have to default on her mortgage by withholding payment." In her affidavit that was submitted to the court in support of her opposition to the plaintiff's motion for summary judgment, the defendant averred that she had called the plaintiff in the fall of 2009, and further averred: "I was told by the representative with whom I spoke that [the plaintiff] would not speak to me about mortgage assistance unless or until I stopped making my payments." On appeal, the defendant claims as grounds for equitable estoppel that she was not in default and had not missed any mortgage payments in the past but that when she reached out to the plaintiff to inquire about modifying her monthly payments, it instructed her to stop making her payments, as this was the only way to explore a modification. She claims, for the first time on appeal, that this was a misleading statement by the plaintiff because, under the HAMP program standards, she only needed to be at imminent risk of default and did not have to be in default in order to be considered for a modification. She also claims that her default, contrived by the plaintiff, negatively impacted her credit score, and thus her ability to pursue refinancing with other financial institutions. A major problem with the defendant's claim that the plaintiff misled her by telling her she first had to stop making payments to be considered for a loan modification, rather than merely be at imminent risk of default, is that she raises this argument for the first time on appeal. "Our appellate courts, as a general practice, will not review claims made for the first time on appeal. We repeatedly have held that [a] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one ." (Internal quotation marks omitted.) White v. Mazda Motor of America, Inc. , 313 Conn. 610, 619, 99 A.3d 1079 (2014). We also do not consider evidence not presented to the trial court. See O'Hara v. State , 218 Conn. 628, 639-40 n.8, 590 A.2d 948 (1991). In the present case, the argument that the defendant made in her opposition to summary judgment was that the plaintiff's servicer had a widespread practice of instructing mortgagors to stop making mortgage payments under the false pretense that doing so would not hurt their credit scores. In the portion of her memorandum of law in opposition to the motion for summary judgment where she discusses her equitable estoppel special defense, the defendant never directs the court's attention to any authority that supports her appellate contention that the plaintiff knew or should have known that telling her she had to stop payments as a requirement to be considered for a loan modification was misleading. Accordingly, the claim as framed on appeal is unpreserved. Assuming, arguendo, that the defendant had preserved her equitable estoppel claim, we would conclude that she cannot prevail on the merits of the defense as currently pleaded and argued. The following additional facts pertaining to the defendant's decision to default are relevant to this claim. In her affidavit, the defendant states that after she was laid off from her job, she used cash reserves and savings to make her mortgage payments, but soon became concerned about her ability to continue making the payments. In her affidavit, the defendant avers that the plaintiff's loan servicer did not direct her to default, but rather informed her that it could not speak with her regarding loan assistance until she was in default. Thereafter, the defendant elected to default and was not coerced or forced to do so by the plaintiff. This special defense fails to allege that the plaintiff promised her that her credit score would be unaffected by her default, and the only detriment she alleges was the negative impact on her credit score. In her equitable estoppel special defense, the defendant also does not claim that the plaintiff promised her a loan modification when it instructed her that the only way to explore modifying her payment was for her to default. After the defendant defaulted, the plaintiff followed through on its promise to discuss mortgage assistance with the defendant, and engaged in documented communications, internal calculations and correspondence with the defendant in an effort to conclude a mortgage modification. Because the allegations in this special defense in no way set forth a claimed promise from the plaintiff that her credit score would be unaffected or that a future loan modification would take place if she defaulted and there is no evidence of any such promises, the defendant cannot claim that she relied to her detriment on promises she fails to allege or prove existed. At the time the defendant elected to default, the maintenance of a favorable credit score or a loan modification were never certainties, and she chose to default at her own peril. The defendant has failed to plead or present evidence of a promise or reasonable reliance on any promise. Carlson v. Bank of America, N.A. , United States District Court, Civ. No. 12-1440 (DSD/AJB), 2012 WL 5519733 (D. Minn. November 14, 2012), is factually analogous and provides further justification for why the defendant's "induced to default" special defense is insufficient for lack of proof of detrimental reliance on her part. The court in Carlson stated: "The homeowners argue that Bank of America fail[ed] to properly communicate with plaintiffs and encourag[ed] plaintiffs to default on their loan.... Absent from the verified complaint, however, is any allegation that Bank of America hindered performance by refusing payment.... In other words, the homeowners never alleged that the lender's actions prevented them from performing their responsibilities under the mortgage agreement.... For this reason, the homeowners' claim fails.... "Here, the homeowners did not plead plausible factual allegations indicating that they would have been able to pay the mortgage absent their reliance on the instructions to default.... The homeowners allege that they would have continued to make payments had they not been instructed to default on the loan; however, they also allege financial concerns beginning in fall 2009 and do not allege an ability to pay." (Citations omitted; internal quotation marks omitted.) Id., at *2. Carlson is instructive. In rejecting the defendant's "instruction to default" defense therein, the court found that the defendant's own admitted financial problems were the undisputed overriding impetus for the defendant's decision to default on the note and mortgage. Similarly, the defendant in the present case has not presented evidence that she could have or would have remained current on the mortgage had she not been instructed to default to take advantage of the opportunity for a modification. The fact that she claims she was current on certain other financial obligations while she was in default does not equate to an ability to pay her mortgage. As the plaintiff points out, the defendant's argument is "self-contradictory and illogical." On the one hand, the defendant claims that she defaulted only because she was wrongfully induced to default by the plaintiff and would not have defaulted but for plaintiff's supposedly inequitable conduct. On the other hand, she claims she should have been considered for a modification before defaulting, but the HAMP guidelines only permit predefault modification consideration if the borrower's default is imminent. If, in 2009, the defendant was about to default in the near future, how can she argue that the plaintiff's actions were the wrongful cause of her default? If she was able to continue to afford her mortgage payments and only was induced by the plaintiff to default, then her default was not imminent, and presumably she could have afforded the existing terms of her mortgage and would not have been eligible for HAMP. See Pennington v. HSBC Bank USA, N.A. , 493 Fed.Appx. 548, 553 (5th Cir. 2012) (noting borrower could not have possibly qualified for HAMP if her claim that she would not have missed payment but for servicer's "demand that she quit making her regular monthly payments" were true [internal quotation marks omitted] ), cert. denied, 568 U.S. 1161, 133 S.Ct. 1272, 185 L.Ed.2d 185 (2013). D We next address the defendant's claim that a genuine issue of material fact exists with respect to her breach of contract special defense. She argues that her submissions give rise to a genuine issue of material fact as to whether the plaintiff breached its contract with her by failing to offer her a permanent loan modification. She alleges in this special defense that the July 15, 2010 TPP created an offer from the plaintiff that if all trial period payments were timely made, her mortgage would be permanently modified. "[D]ue to the adversarial nature of our judicial system, [t]he court's function is generally limited to adjudicating the issues raised by the parties on the proof they have presented . Connecticut is a fact pleading jurisdiction.... Pleadings have an essential purpose in the judicial process.... The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried . For that reason, [i]t is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings. . Fairness is a double-edged sword and both sides are entitled to its benefits throughout the trial." (Citations omitted; emphasis in original; internal quotation marks omitted.) Somers v. Chan , 110 Conn. App. 511, 528-29, 955 A.2d 667 (2008) ; see also 71 C.J.S. 33, Pleading § 2 (2011) ("purpose of pleadings is to frame, present, define, and narrow the issues and to form the foundation of, and to limit, the proof to be submitted"). "The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Pelletier v. Galske , 105 Conn. App. 77, 81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008). The promise of an offer of a loan modification must be pleaded as enforceable by the terms of the agreement. See Everbank v. Engelhard , Superior Court, judicial district of Waterbury, Docket No. CV-13-6019881, 2016 WL 4507450, *4 (July 28, 2016). The defendant avers that the plaintiff breached the terms of the TPP letter. The plaintiff argues that it was the defendant's failure to perform a condition precedent-maintaining her financial eligibility for HAMP-that resulted in the rejection of her application for a permanent loan modification. There is no dispute that maintaining eligibility for HAMP was a condition precedent in the TPP letter, and, because the defendant failed to allege her compliance with this condition precedent in her breach of contract special defense, her argument necessarily fails because she failed to allege full performance on her part. Thus, by her own allegations, her conduct never triggered the plaintiff's duty to perform its obligations under the contract, rendering this defense as currently pleaded legally insufficient. E We next address whether the court erred in concluding that there was no genuine issue of material fact as to the defendant's special defense of breach of the covenant of good faith and fair dealing. We are not persuaded by the defendant's arguments. The defendant claims that the plaintiff violated its duty of good faith and fair dealing by instructing her to default on her mortgage, on which she then was current, as a precondition to discussing a loan modification; and by failing to advise her of the risks that would result from her failure to make her monthly mortgage payments-the acceleration of the debt, the application of default interest, the assessment of penalties and late fees, and unfavorable reports to credit agencies. She further alleges that the instruction to default delivered to her by the plaintiff was made in bad faith and motivated by financial gain on behalf of the plaintiff, to wit, the promise of financial incentives from the Treasury Department, to modify the loan. "[I]t is axiomatic that the . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship.... In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.... The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term.... To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith.... "Bad faith has been defined in our jurisprudence in various ways. Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive.... Bad faith means more than mere negligence; it involves a dishonest purpose." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Landry v. Spitz , 102 Conn. App. 34, 42-43, 925 A.2d 334 (2007). In general, bad faith "implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive." (Internal quotation marks omitted.) TD Bank, N.A. v. J & M Holdings, LLC , supra, 143 Conn. App. at 348, 70 A.3d 156. The defendant argues that a genuine issue of material fact exists as to whether the plaintiff violated the covenant of good faith and fair dealing. Specifically, she argues that the plaintiff acted in bad faith when it instructed her to default on her mortgage as a precondition to discussing loan modification. Viewing this special defense in the light most favorable to the defendant, we will presume that she is claiming that the plaintiff breached the implied covenant of good faith and fair dealing in the note and mortgage agreements because there must be an existing contract in order for there to be a breach of the implied covenant, and the defendant does not allege the existence of any other contract in this special defense. "[T]he existence of a contract between the parties is a necessary antecedent to any claim of breach of the duty of good faith and fair dealing.... [N]o claim of breach of the duty of good faith and fair dealing will lie for conduct that is outside of a contractual relationship." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Carford v. Empire Fire & Marine Ins. Co. , 94 Conn. App. 41, 45-46, 891 A.2d 55 (2006). Because a special defense admits the facts pleaded in the complaint, and the complaint alleges the existence of note and mortgage agreements, we fairly can make this presumption. We agree with the plaintiff that there is no evidence that it impeded the defendant's rights under the note or mortgage or that it acted in bad faith. As detailed in part I C of this opinion, there is no evidence that the plaintiff misled the defendant into defaulting; rather, she elected to default. See part I C of this opinion. The note and mortgage, which the defendant signed, made clear the consequences of default. Commencing on November 30, 2009, the first month in which the defendant stopped making her mortgage payments, the plaintiff sent the defendant numerous notices of default, including several notices that predated her application for a loan modification. These letters advised the defendant of the consequences of her default, as required by the terms of the note and mortgage. The note and mortgage, however, do not require the plaintiff to notify her that her credit rating may be affected were she to be in default. Once the defendant defaulted, the plaintiff discussed mortgage assistance and gave the defendant a TPP, as promised. Although the defendant makes the sweeping generalization that many mortgage servicers are motivated to induce defaults for greater fees, there is no evidence that any employee of Chase, acting on behalf of the plaintiff, was so motivated in this case. Moreover, neither the note nor the mortgage contemplate addressing a situation where the defendant might need relief from the payment provisions, nor does either of these documents promise to offer the defendant a loan modification. Accordingly, a failure to provide the defendant with an offer for a loan modification under the program cannot be a violation of the covenant of good faith and fair dealing under the note or mortgage agreements. F The defendant also claims that the court erred in determining that there was no genuine issue of material fact regarding her promissory estoppel special defense. She contends that submissions presented to the court show that the plaintiff promised to offer to permanently modify her loan if she made three trial period payments and met the eligibility requirements of the TPP, but that the plaintiff did not fulfill its promise to modify her mortgage after she made the payments and met the requirements. We are not persuaded because the allegations in this special defense, which state that the defendant was promised a permanent modification of her mortgage so long as she made three consecutive trial payments in a specified amount, are contradicted by the undisputed evidence. In reviewing the language of this particular special defense, it is not asserted that the defendant met all the terms of the purported offer she submitted as evidence. "[U]nder the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.... A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all.... "Additionally, the promise must reflect a present intent to commit as distinguished from a mere statement of intent to contract in the future.... [A] mere expression of intention, hope, desire, or opinion, which shows no real commitment, cannot be expected to induce reliance . and, therefore, is not sufficiently promissory. The requirements of clarity and definiteness are the determinative factors in deciding whether the statements are indeed expressions of commitment as opposed to expressions of intention, hope, desire or opinion.... Finally, whether a representation rises to the level of a promise is generally a question of fact, to be determined in light of the circumstances under which the representation was made." (Citations omitted; internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp. , 267 Conn. 96, 104-106, 837 A.2d 736 (2003). "[A] promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all." D'Ulisse-Cupo v. Board of Directors of Notre Dame High School , 202 Conn. 206, 213, 520 A.2d 217 (1987). Again, the defendant's claim is limited to the allegations she made in her promissory estoppel defense. See Somers v. Chan , supra, 110 Conn. App. at 528-29, 955 A.2d 667. It is undisputed that the defendant made all of the trial period payments on time. According to the July 15, 2010 letter, however, the defendant also was required to continue to meet the eligibility requirements of the program. Both parties submitted a letter dated July 15, 2010, addressed to the defendant from the plaintiff, in which the plaintiff states that the defendant was approved to enter into a trial period plan, and explained that "[a]fter all trial period payments are timely made and you continue to meet all program eligibility requirements , your mortgage would then be permanently modified." (Emphasis added.) The plaintiff further explained in the letter that "[o]nce we confirm you are still eligible for a Home Affordable Modification and you make all of your trial period payments on time, we will send you a modification agreement detailing the terms of the modified loan." The undisputed evidence reveals that the defendant was required to continue to meet the requirements of the program in order to qualify for a permanent modification. The plaintiff contends that she did not satisfy the requirement that her housing ratio be greater than 31 percent. In her claim of promissory estoppel, the defendant does not allege that she fulfilled that condition and, thus, did not satisfy all the conditions precedent in the TPP to receive an offer of a permanent loan modification. Accordingly, the plaintiff did not break any promise to the defendant by declining to modify her loan under the program. As such, the party against whom estoppel is claimed, the plaintiff, indisputably never promised to form a binding modification agreement once the defendant made her three consecutive trial period payments because those payments were not the only contingency. The court properly concluded that the defendant's promissory estoppel special defense as currently pleaded did not raise a genuine issue of material fact that would preclude the rendering of summary judgment on the plaintiff's complaint. II Finally, the defendant claims that the court improperly rendered summary judgment in the plaintiff's favor on her counterclaim sounding in breach of contract. Specifically, she argues that the court improperly concluded that the counterclaim (1) failed to allege the formation of a contract, (2) failed to meet the transaction test set forth in Practice Book § 10-10, and (3) was barred by the statute of frauds. We agree with the defendant. In her counterclaim, the defendant alleged that the plaintiff breached its contract with her when it failed to offer her a permanent loan modification within a reasonable period of time after she made the trial period payments and continued to meet all HAMP program eligibility requirements. The court concluded: "[T]he undisputed facts show that the plaintiff and [the] defendant did not enter into a new contract or agreement," ruling that "[t]he defendant was obligated to make payments on her mortgage as demonstrated by the note, and therefore, the undisputed facts show that the defendant would be obligated to pay the monthly trial plan amount at a minimum.... Therefore, the offer of a trial modification, even with a promise of a future alteration to the original mortgage, did not form a new contract." (Citation omitted.) The court further concluded that the purported contract would be unenforceable due to its noncompliance with the statute of frauds, and that the counterclaim, which alleged the failure to execute a loan modification agreement, did not meet the transaction test set forth in Practice Book § 10-10 because it did not satisfy the same transaction standard. A Initially, we discuss whether the court erred in determining that the defendant's counterclaim failed to satisfy the transaction test set forth in Practice Book § 10-10. In its reply to the defendant's objection to the motion for summary judgment, the plaintiff raised the procedural issue that the counterclaim was improper because it did not arise out of the "transaction or one of the transactions which is the subject of the plaintiff's complaint ." Practice Book § 10-10. The defendant claims that the court erred in its application of the transaction test. This is a question of law subject to plenary review. U.S. Bank National Assn. v. Sorrentino , supra, 158 Conn. App. at 94, 118 A.3d 607. "Although, ordinarily, a challenge to the legal sufficiency of a pleading should be raised by way of a motion to strike; see Practice Book § 10-39 (a) ; our Supreme Court has held that a motion for summary judgment also may be used to challenge a pleading's legal sufficiency provided that the party seeking summary judgment can establish as a matter of law both that the cause of action alleged is legally insufficient and, more importantly, that any defect in the pleading could not be cured by repleading, which the nonmoving party would have had an opportunity to do if the alleged insufficiency had been raised by way of a motion to strike. See Larobina v. McDonald , 274 Conn. 394, 401, 876 A.2d 522 (2005).... If both prongs are met, the court may properly grant summary judgment as a matter of law. The court in Larobina further explained that we will not reverse the trial court's ruling on a motion for summary judgment that was used to challenge the legal sufficiency of [a pleading] when it is clear that the motion was being used for that purpose and the nonmoving party, by failing to object to the procedure before the trial court, cannot demonstrate prejudice.... "A counterclaim that has been filed in contravention of our rules of practice is legally insufficient. Section 10-10 of the Practice Book provides in relevant part that [i]n any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff . provided that each such counterclaim . arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint ." (Citations omitted; footnote omitted; internal quotation marks omitted.) U.S. Bank National Assn. v. Sorrentino , supra, 158 Conn. App. at 94-95, 118 A.3d 607. "[A] proper application of Practice Book § 10-10 in a foreclosure context requires consideration of whether a counterclaim has some reasonable nexus to, rather than directly attacks, the making, validity or enforcement of the mortgage or note." (Internal quotation marks omitted.) U.S. Bank National Assn. v. Blowers , supra, 177 Conn. App. at 631-32, 172 A.3d 837. Essentially, a counterclaim must have a sufficient relationship to the making, validity or enforcement of the subject note or mortgage in order to meet the transaction test as set forth in Practice Book § 10-10 and the policy consideration it reflects, judicial economy. With respect to that policy consideration, which is one of practicality, the interest of efficiency and judicial economy are served by allowing the complaint and counterclaim to be adjudicated in the same action when the competing claims are closely related. See, e.g., Jackson v. Conland , 171 Conn. 161, 166, 368 A.2d 3 (1976). The court, relying on Sorrentino , found that the defendant's counterclaim failed to satisfy the transaction test because it did not bear some reasonable nexus to the making, validity or enforcement of the note. We conclude, however, that the subject counterclaim in the present case sufficiently meets the transaction test of Practice Book § 10-10 because it is intertwined sufficiently with the subject of the foreclosure complaint. The defendant's counterclaim alleges the formation and breach of a contractual agreement, prior to the commencement of this action, intended to lead to an offer from the plaintiff for a permanent modification of the defendant's note and mortgage, which, if accepted, would avoid a foreclosure. In her prayer for relief, the defendant is seeking specific performance of that agreement, or other equitable relief, which is directly and inseparably connected to the relief sought in the plaintiff's complaint because, were the defendant to prevail, the result may be a modification of her obligations under the note and mortgage sought to be enforced in the foreclosure action. "[B]ecause a mortgage foreclosure action is an equitable proceeding, the trial court may consider all relevant circumstances to ensure that complete justice is done." (Internal quotation marks omitted.) TD Bank, N.A. v. M.J. Holdings, LLC , supra, 143 Conn. App. at 326, 71 A.3d 541. The connection between the note, the mortgage and the TPP involves the same lender, the same borrower and the same property. Moreover, this interrelationship involves the same constellation of facts underlying the defendant's surviving special defense, and all of these same facts will be part of this case with or without the counterclaim. Accordingly, the court erred in concluding that the defendant's counterclaim did not satisfy the transaction test. B Having concluded that the defendant's counterclaim satisfied the transaction test, we turn to whether the counterclaim was legally sufficient. We address whether there is a genuine issue of material fact as to whether the parties formed a contract. An essential issue for this analysis on which the parties differ is whether, under the HAMP guidelines, the plaintiff was permitted to continue to require additional documentation to verify the defendant's eligibility for a loan modification months after the conclusion of the TPP, or whether the defendant, who made all her trial period payments and remained eligible during the TPP, should have been tendered a permanent modification offer after she successfully completed the trial period. The defendant makes it clear that she is not claiming that the TPP was itself a contract for a permanent loan modification. Rather, a contract governed the terms of the TPP that, if fully performed, required the plaintiff to tender her offer to permanently modify her loan. The defendant claims that on July 15, 2010, the plaintiff made a definite offer to enter into a contractual relationship that, when accepted by the defendant, created a contract binding on both parties. See Auto Glass Express, Inc. v. Hanover Ins. Co. , 293 Conn. 218, 227, 975 A.2d 1266 (2009) ; see also 1 Restatement (Second), Contracts § 24 (1981) (offer defined as "manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it"). The defendant argues that her acceptance of the contract was evidenced through her performance of the two conditions precedent in the offer: timely payment of all amounts due during the trial period, a fact which is not disputed, and her continued eligibility, a primary source of contention in this case. She maintains that these conditions precedent were solely in her control and did not hinge on the "whims of the plaintiff." She notes that the plaintiff concedes that the terms of the TPP were supplemented by the HAMP guidelines issued by the Treasury Department and that the HAMP guidelines in effect at the time she received the offer from the plaintiff, effective June 1, 2010, namely, HAMP Supplemental Directive 10-01, dated January 28, 2010, required "full verification of borrower eligibility prior to offering a trial period plan." She claims that the record supports her assertion that she submitted extensive income documentation to the plaintiff at its request prior to receiving the TPP offer, and that the plaintiff's underwriting department reviewed her income documentation, verified she was eligible for HAMP and then determined her modified loan terms on July 8, 2010, prior to offering her the July 15, 2010 TPP. She further claims that she submitted more information to the plaintiff at its request during the trial period to verify her continuing eligibility. She maintains that her compliance with these two conditions precedent constituted acceptance of the plaintiff's definite offer, and consideration to induce and bargain for the plaintiff's promise to tender her an offer of a permanent HAMP loan modification, as the acts she promised to perform under the TPP encompassed acts that were not preexisting legal duties. See Turbeville v. JPMorgan Chase Bank , United States District Court, Docket No. SA CV 10-01464 DOC (JCG), 2011 WL 7163111, *4 (C.D. Cal. April 4, 2011) (plaintiff's submission of TPP financial documents not previously required constituted consideration). The defendant notes, with regard to further consideration, that any permanent loan modification would have required her to pay interest on a higher principal balance and that the modified loan would have matured with a two month balloon payment that did not previously exist. While she participated in the TPP, her original obligations on the note and mortgage remained unchanged and in effect, and continued to accrue. By delaying in making her full monthly payments, the defendant committed herself to paying a greater amount in the long run because during the months she made reduced payments, interest accrued on a larger sum of principal than it otherwise would have. Thus, it is unfair to categorize the defendant's promise to pay reduced monthly payments solely as a preexisting duty, as she actually suffered some detriment by agreeing to pay less than the full amount she owed. See Henderson v. Wells Fargo Bank, NA , United States District Court, Civ. No. 3:13-cv-378 (JBA), 2016 WL 324939, *6 (D. Conn. January 27, 2016) (although plaintiff did have preexisting duty to pay reduced monthly payments, she actually suffered some detriment by agreeing to pay less than full amount owed, committing herself to pay greater amount in long run). The plaintiff concedes that the defendant made all of her trial period payments on time, but argues that she failed to comply with the second condition precedent in its offer, which is that she continue to meet all HAMP program eligibility requirements, because eventually the plaintiff confirmed, on the basis of updated documents that the defendant sent at its request in May, 2011, six months after the TPP ended, that she no longer qualified. The plaintiff asks this court to reject the defendant's argument that the HAMP guidelines forbid a loan servicer from requesting additional documents to confirm a borrower's continuing eligibility under the program, as HAMP Supplemental Directive 10-01 specifically states that "[b]orrowers who make all trial period payments timely and who satisfy all other trial period requirements will be offered a permanent HAMP modification." Moreover, HAMP guidelines state that when "evaluating a borrower's eligibility for HAMP, servicers should use good business judgment consistent with the judgment employed when modifying mortgage loans held in their own portfolio." Our review of the HAMP guidelines leads us to conclude that there is a genuine issue of material fact as to whether the plaintiff was permitted to continue to review the defendant's financial eligibility for the HAMP program after the end of her trial period. The plaintiff's own contention, which is that HAMP Supplemental Directive 10-01 specifically states that "[b]orrowers who make all trial period payments timely and who satisfy all other trial period requirements will be offered a permanent HAMP modification"; (emphasis added); may be interpreted as indicating that all other requirements have to be met only during the trial period, suggesting an intention not to leave the borrower without notice of a final determination for months afterward, as took place in this case. Although the HAMP handbook may contemplate a prolonged TPP, lasting more than three months, there is no definite indication in the record before us that the plaintiff and the defendant ever agreed to a prolonged TPP. The plaintiff also claims that the trial court correctly held that the defendant provided no consideration to the plaintiff because she paid less than she already was obligated to pay under the terms of the existing note and mortgage. "Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made.... Although an exchange of promises usually will satisfy the consideration requirement . a promise to do that which one is already bound by his contract to do is not sufficient consideration to support an additional promise by the other party to the contract." (Citations omitted; internal quotation marks omitted.) Christian v. Gouldin , 72 Conn. App. 14, 23, 804 A.2d 865 (2002). "A modification of an agreement must be supported by valid consideration and requires a party to do, or promise to do, something further than, or different from, that which he is already bound to do." (Internal quotation marks omitted.) Thoma v. Oxford Performance Materials, Inc. , 153 Conn. App. 50, 56, 100 A.3d 917 (2014). In this case, the TPP imposed new obligations on the defendant. The July 15, 2010 letter from the plaintiff that offered the defendant a TPP informed her that in addition to making monthly trial period payments in place of her normal monthly mortgage payments, she had to continue to meet all program eligibility requirements. Attached to this letter was a list of frequently asked questions, which informed the defendant that her credit score may be affected, she may be required to attend credit counseling, that she would be required to have an escrow account for payment of property taxes, insurance premiums and other required charges, and that she was required to provide income and expenses documentation. By not making her full monthly mortgage payments, the plaintiff committed herself to paying a greater amount in the long run, as during the months she made reduced payments, interest accrued on a larger sum of principal than it otherwise would have. In addition, the defendant's account was assessed a charge of $2838.92 when her loan modification was "approved." It is unquestionable that the defendant suffered some detriment additional to any preexisting duties she owed to the plaintiff. The documents submitted by the defendant and her arguments lead us to conclude that there is a genuine issue of material fact as to whether a contract was formed when she accepted the TPP and complied with its conditions, including remaining financially eligible for the HAMP program throughout the trial time period. There also is a genuine issue of fact as to whether the plaintiff failed to meet its obligations under the TPP, particularly as to the timing of when it made its relevant determinations. Thus, on the existing record, there is a genuine issue as to whether a contract was formed and whether there was a breach by the plaintiff. We therefore conclude that the trial court should not have rendered summary judgment on the counterclaim due to the nonexistence of a contract. C We next address whether the contract that the defendant claims was created would be unenforceable under our statute of frauds, § 52-550 (a). The court, after noting that the defendant in her affidavit is alleging an oral agreement, relied on relevant language from Deutsche Bank Trust Co. Americas v. DeGennaro , 149 Conn. App. 784, 788, 89 A.3d 969 (2014), which held that an oral agreement would be ineffective because "[a] modification of a written agreement [for a loan exceeding $50,000] must be in writing to satisfy the statute of frauds." (Internal quotation marks omitted.) As the defendant argues, the TPP was not a modification of the note and mortgage, but rather, it was a promise by the plaintiff to tender an offer of a permanent loan modification if the defendant successfully completed the requirements during the three month trial period. Because the TPP was not an agreement for the sale of real property or any interest in or concerning real property, and, arguably was supposed to be performed within one year, and because it was not an agreement for a loan in an amount that exceeded $50,000, it was not a purported contract that falls within the statute of frauds. The TPP is unlike the oral modification agreement that the court in DeGennaro found was barred by the statute of frauds, as it is not a modification agreement. Even if the statute of frauds were applicable to the agreement at issue here, the TPP was in writing, on the letterhead of the plaintiff's mortgage servicer, Chase, included a salutation, stating, "Sincerely, Chase Home Finance, LLC," contained the electronic signature of a Chase representative, and satisfied the evidentiary function of the statute of frauds by providing proof of the contract itself. The defendant further claims that she performed her part of the contract after being induced to do so by the plaintiff. She relies on Red Buff Rita, Inc. v. Moutinho , 151 Conn. App. 549, 96 A.3d 581 (2014), wherein this court held that "[t]he doctrine of part performance . is an exception to the statute of frauds.... This doctrine originated to prevent the statute of frauds from becoming an engine of fraud." (Citation omitted; internal quotation marks omitted.) Id., at 554-55, 96 A.3d 581. In explaining this exception, this court cited Glazer v. Dress Barn, Inc. , 274 Conn. 33, 873 A.2d 929 (2005), when stating in Red Buff Rita, Inc. v. Moutinho , supra, at 549, 96 A.3d 581, that "our Supreme Court clarified and explained the circumstances in which a contract may be enforced despite its noncompliance with the statute of frauds. It also concluded that part performance and equitable estoppel are not separate and independent exceptions to the statute of frauds, but rather, that part performance is an essential element of the estoppel exception to the statute of frauds.... [T]he elements required for part performance are: (1) statements, acts or omissions that lead a party to act to his detriment in reliance on the contract; (2) knowledge or assent to the party's actions in reliance on the contract; and (3) acts that unmistakably point to the contract.... Under this test, two separate but related criteria are met that warrant precluding a party from asserting the statute of frauds.... First, part performance satisfied the evidentiary function of the statute of frauds by providing proof of the contract itself.... Second, the inducement of reliance on the oral agreement implicates the equitable principle underlying estoppel because repudiation of the contract by the other party would amount to the perpetration of a fraud." (Citations omitted; internal quotation marks omitted.) Id., at 555, 96 A.3d 581. There remain genuine issues of material fact as to (1) whether the statute of frauds would be applicable to the nature of the contract the defendant has alleged, and (2) whether, even if the statute applies, the defendant could prove that the facts in this case entitle her to the application of an exception to it. We therefore conclude that the court erred in rendering summary judgment in favor of the plaintiff on the defendant's counterclaim on the ground that it was legally unenforceable under § 52-550. The judgment is reversed and the case is remanded for further proceedings according to law. In this opinion BRIGHT, J., concurred. I join part II of the majority opinion. With respect to part I, I agree with the majority that the trial court improperly rendered summary judgment against the defendant Karin C. Eichten as to liability on the foreclosure complaint. I write separately, however, because I disagree with the majority's analysis and conclusions regarding the defendant's fifth and sixth special defenses, asserting unclean hands and breach of contract, respectively. I would conclude that the defendant has demonstrated a genuine issue of material fact with respect to her breach of contract special defense, but has failed to demonstrate a genuine issue of material fact with respect to her unclean hands special defense. I With respect to the defendant's special defense of unclean hands, I disagree with the majority that the trial "court erred in concluding that there was no genuine issue of material fact as to whether the defendant can prevail on her special defense of unclean hands." The principle on which the case is decided is important, and will operate widely, so I feel that it is my duty to show the grounds upon which I differ. I would conclude that the defendant failed to meet her evidentiary burden to demonstrate a genuine issue of material fact that the doctrine of unclean hands should be invoked. I first note that "[a]pplication of the doctrine of unclean hands rests within the sound discretion of the trial court.... The exercise of [such] equitable authority . is subject only to limited review on appeal.... The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion.... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of [the trial court's] action.... Whether the trial court properly interpreted the doctrine of unclean hands, however, is a legal question distinct from the trial court's discretionary decision whether to apply it." (Internal quotation marks omitted.) Ulster Savings Bank v. 28 Brynwood Lane, Ltd. , 134 Conn. App. 699, 711, 41 A.3d 1077 (2012) ; see also American Heritage Agency, Inc. v. Gelinas , 62 Conn. App. 711, 722, 774 A.2d 220 ("[t]he trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts' integrity dictate that the clean hands doctrine be invoked" [internal quotation marks omitted] ), cert. denied, 257 Conn. 903, 777 A.2d 192 (2001). As the majority sets forth, it is the party seeking to invoke the doctrine of unclean hands who has the burden of demonstrating that "his opponent engaged in wilful misconduct with regard to the matter in litigation." (Internal quotation marks omitted.) American Heritage Agency, Inc. v. Gelinas , supra, 62 Conn. App. at 722, 774 A.2d 220. The majority further acknowledges that "[w]ilful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse.... [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.... Not only the action producing the injury but the resulting injury also must be intentional." (Internal quotation marks omitted.) 19 Perry Street, LLC v. Unionville Water Co. , 294 Conn. 611, 630-31 n.10, 987 A.2d 1009 (2010). Our appellate courts previously have recognized that "as a general matter, summary judgment is considered inappropriate when an individual's intent and state of mind are implicated.... At the same time, even with respect to questions of . intent . the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact.... When a party opposing a motion for summary judgment has failed to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact concerning intent, summary judgment is appropriate." (Citations omitted; internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann , 114 Conn. App. 123, 130, 968 A.2d 956 (2009) ; see also Wadia Enterprises, Inc. v. Hirschfeld , 224 Conn. 240, 250, 618 A.2d 506 (1992). "The summary judgment rule would be rendered sterile . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." (Internal quotation marks omitted.) Voris v. Middlesex Mutual Assurance Co. , 297 Conn. 589, 603, 999 A.2d 741 (2010). Applying these legal principles, I would conclude that the defendant has failed to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact that the plaintiff, U.S. Bank National Association, as trustee, "engaged in willful misconduct with regard to the matter in litigation"; American Heritage Agency, Inc. v. Gelinas , supra, 62 Conn. App. at 722, 774 A.2d 220 ; such that "the promotion of public policy and the preservation of the courts' integrity dictate that the clean hands doctrine be invoked." (Internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino , 87 Conn. App. 401, 407, 867 A.2d 841 (2005). In support of its conclusion that the defendant raised a genuine issue of material fact as to whether the plaintiff engaged in wilful misconduct, the majority relies on (1) the "plaintiff's failure to establish that it adhered to the [United States] Treasury Department's directives, which appear to encourage that final determinations on whether to offer the borrower a loan modification be made before the end of the [trial period plan (TPP) ]" and (2) an unexplained notation in the plaintiff's records that would appear to show that the defendant's loan modification was internally approved. The evidence submitted, however, is devoid of any basis from which a fact finder could infer that the plaintiff engaged in intentional conduct designed to injure the defendant. I do not believe that the identification of an inconsistent notation of the status of the defendant's application is sufficient to demonstrate a genuine issue of material fact as to wilful misconduct, particularly where wilful misconduct requires that the action producing the injury and the resulting injury be intentional. I would therefore conclude that the trial court properly rejected the defendant's unclean hands special defense. II I further disagree with the majority that the defendant's breach of contract special defense is legally insufficient. The majority rests this conclusion on its determination that the defendant failed to allege that she maintained her financial eligibility for a loan modification under the federal Home Affordable Modification Program (HAMP). Thus, according to the majority, the defendant failed to allege full performance, rendering the special defense legally insufficient. I begin by noting that I do not believe this court should analyze the sufficiency of the defendant's pleading for the first time on appeal because the parties have not briefed the sufficiency of the pleadings, but instead argue only as to whether a genuine issue of material fact exists. I would decide the defendant's appellate claim as briefed by the parties and would conclude that the defendant has raised a genuine issue of material fact as to her breach of contract special defense. A review of the record reveals that the plaintiff was fully apprised of the issues implicated by the defendant's breach of contract special defense, including the defendant's continued eligibility for HAMP. "The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed ." (Internal quotation marks omitted.) Noonan v. Noonan , 122 Conn. App. 184, 190, 998 A.2d 231, cert. denied, 298 Conn. 928, 5 A.3d 490 (2010). Indeed, in its memorandum of law in support of its motion for summary judgment, the plaintiff argued, on the basis of the documentary evidence before the court, that the defendant "did not qualify for the permanent HAMP modification offered in the trial plan." The trial court concluded that the undisputed facts showed that the defendant was obligated to pay the monthly TPP amount at a minimum and, consequently, there was no new consideration to support the modification of an agreement. We expressly reject that finding in part II of the majority opinion. In its appellate brief, the plaintiff argues, as it did before the trial court, that the defendant's failure to maintain her eligibility for HAMP "resulted in the nonissuance of a permanent modification." The plaintiff's arguments before this court and the trial court demonstrate that it was apprised that the defendant's continued eligibility for HAMP was an issue raised by the defendant's breach of contract special defense. Moreover, the plaintiff, briefing the breach of contract special defense together with the breach of contract counterclaim, does not argue that the special defense is legally insufficient in contrast to the counterclaim. The majority sua sponte conducts an independent review of the sufficiency of the allegations contained in her special defense and finds such allegations legally insufficient due to a failure to allege "full performance ." I would address, instead, the issue as briefed, i.e., whether the defendant has carried her burden of demonstrating a genuine issue of material fact as to whether she continued to meet HAMP eligibility requirements. I would reach the conclusion that we ultimately reach in part II of the majority opinion, which is that she has demonstrated such a genuine issue of material fact. For these reasons, I respectfully concur in part and dissent in part. The complaint also named as defendants American Fuel Corporation and the town of Cheshire. Neither of these defendants filed an appearance in the trial court or is a party to this appeal. We will refer to Eichten only as the defendant. For simplicity, the actions of the plaintiff's loan servicer, Chase, will be referred to as the plaintiff's actions. The plaintiff indicated in its brief, and we agree, that "there is no principled reason to draw a distinction between the alleged actions of Chase and/or [the] plaintiff." As a condition precedent to qualifying for a HAMP loan modification, borrowers are required to make reduced payments on the note and mortgage during a trial period plan. In her special defenses, the defendant also alleged payment and claimed attorney's fees. In its memorandum of decision, the court addressed the issue of attorney's fees but did not address the issue of payment. The defendant does not raise an issue on appeal regarding the sufficiency of her special defense of payment or her claim for attorney's fees. We therefore consider these claims abandoned. See, e.g., Grimm v. Grimm , 276 Conn. 377, 393-94, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S.Ct. 2296, 164 L.Ed.2d 815 (2006). The record does not reflect how Select Portfolio Servicing, Inc., succeeded Chase as servicer of the loan in question for the plaintiff, but Chase was the servicer at the time the events alleged in the special defenses and counterclaim took place. The plaintiff, in its complaint, alleges that it was the party entitled to collect the debt evidenced by the note and to enforce the mortgage. Although the defendant denied these allegations in her answer, she did not object to the rendering of summary judgment as to liability or make any claim on appeal that was based on an alleged lack of standing by the plaintiff to bring this foreclosure action. This letter, which the defendant purports to be the contract between the parties, does not contain any place for a signature by either the plaintiff or the defendant, and it does not contain a time is of the essence clause or any particular date by which a determination on her application for a loan modification would be made. The defendant alleges that the other person residing in the home was her fiancé, not her spouse, but does not challenge the propriety of the inclusion of her fiancé's income in calculating monthly gross income for purposes of determining eligibility for the HAMP program. The housing ratio or monthly mortgage payment ratio, is defined in the HAMP program handbook for servicers submitted by the defendant, as "the ratio of the borrower's current monthly mortgage payment to the monthly gross income of all borrowers on the mortgage note, whether or not those borrowers reside in the property." To qualify for HAMP, verified income documentation must confirm that the borrower's monthly mortgage payment ratio prior to modification is greater than 31 percent. Internal records of the plaintiff, submitted by the defendant with her objection, reveal that she made six payments of $3373.86 between August, 2010, and January, 2011 The HAMP guidelines provide that "[s]ervicers should include non-borrower household income in monthly gross income if it is voluntarily provided to the borrower and if, in the servicer's business judgment, that income reasonably can continue to be relied upon to support the mortgage payment." As of July, 2011, the $12,578.85 monthly income of the defendant's fiancé, when combined with her monthly income, was too high a sum for the defendant to qualify for HAMP assistance. Practice Book § 10-10 provides in relevant part: "In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff . provided that each such counterclaim . arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint ." The plaintiff argues on appeal that the court properly granted the motion for summary judgment because the defendant's special defenses do not relate to the making, validity or enforcement of the note and mortgage. Without objection from the defendant, the plaintiff raised this issue at the hearing on the motion for summary judgment and in its reply memorandum of law in support of the motion for summary judgment. The dissenting opinion in Blowers did not agree that a special defense that is based on loan modification negotiations can be viable only if the parties actually reach a modification agreement because it "would unnecessarily shield mortgagees or their agents from judicial scrutiny of potentially unscrupulous behavior that may have directly resulted in the foreclosure action. Courts have not always strictly applied the making, validity, or enforcement requirement in evaluating the sufficiency of equitable special defenses such as those raised here, particularly if a strict application would offend traditional notions of equity." U.S. Bank National Assn. v. Blowers , supra, 177 Conn. App. at 648, 172 A.3d 837 (Prescott, J. , dissenting). A fair reading of the HAMP guidelines, Supplemental Directive 09-01, dated April 6, 2009, reveals that, in order to qualify for relief, a borrower must be in default, or, in very limited circumstances, must claim a hardship and be determined to be at imminent risk of default, or "reasonably foreseeable" default. Courts have recognized, however, that servicers are permitted to give priority to borrowers on the basis of their payment or default status. Lindsay v. Bank of America, N.A. , United States District Court, Civ. No. 12-00277 LEK-BMK, 2012 WL 5198160, *12 (D. Haw. October 19, 2012). In her special defense of breach of contract, the defendant does not allege, as she does in her counterclaim, that she was promised a permanent loan modification if she made all trial payments on a timely basis and continued to meet all program eligibility requirements. The fact that the defendant avers in her affidavit that she continued to comply with all guidelines during the trial period does not cure the pleading deficiency in her special defense, as the allegations necessarily frame the party's claim. Actually, such financial incentives would have been paid to the servicer, not directly to the plaintiff, and only would have been paid if and when the loan was modified. The defendant also argues that the court erred in determining, on the basis of the language in the note and mortgage, that there was no genuine issue of material fact as to whether the defendant was aware of the consequences of default. She contends that a reasonable fact finder could determine that the defendant was unaware that the plaintiff would treat her loan as delinquent, given that the plaintiff instructed her to default, the program did not exist at the time of the execution of the note and mortgage, the defendant may not have understood the intricacies of her mortgage contract and was relying on the plaintiff's superior knowledge, and the note and mortgage do not discuss adverse credit reporting. For the reasons set for previously, we are unpersuaded. To the extent that the defendant is attempting to claim in her second special defense that the plaintiff violated the covenant of good faith and fair dealing pursuant to a purported agreement to provide her with an offer for a permanent loan modification, she cannot prevail because she fails to allege the formation of such a contract in this special defense. We note that promissory estoppel is usually pleaded as a cause of action as an alternative to a breach of contract claim. "Promissory estoppel is asserted when there is an absence of consideration to support a contract.... [T]he doctrine of promissory estoppel serves as an alternative basis to enforce a contract in the absence of competing common-law considerations ." (Citation omitted; internal quotation marks omitted.) Glazer v. Dress Barn, Inc. , 274 Conn. 33, 88-89, 873 A.2d 929 (2005)." Although the promise must be clear and definite, it need not be the equivalent of an offer to enter into a contract because [t]he prerequisite for . application [of the doctrine of promissory estoppel] is a promise and not a bargain and not an offer." (Emphasis in original; internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp. , 267 Conn. 96, 105, 837 A.2d 736 (2003). The defendant does not dispute that by May, 2011, when she provided the plaintiff with additional requested documentation she no longer qualified under the program. We note that the counterclaim, unlike the defendant's breach of contract and promissory estoppel special defenses, sufficiently alleges that she fully performed her part of the bargain pursuant to the alleged contract. See footnote 21 of this opinion regarding the defendant's claim that the court improperly addressed this issue because it was first raised by the plaintiff in its memorandum of law in reply to the defendant's objection to the motion for summary judgment. In Blowers , this court determined that counterclaims arising from factual allegations pertaining to the mortgagee's "conduct during postdefault mediation and loan modification negotiations" did not relate to the making, validity or enforcement of the note, and, thus, failed the transaction test. U.S. Bank National Assn. v. Blowers , supra, 177 Conn. App. at 632, 172 A.3d 837. The present case is factually distinguishable because the defendant claims that the plaintiff was required to offer her a modification under the terms of their TPP agreement. Cf. id., at 630, 172 A.3d 837. We also note that we have concluded in part I of this opinion that the defendant's special defense of unclean hands meets the making, validity or enforcement test. "Whether the TPP is an enforceable contract for a loan modification has been the subject of extensive litigation [in federal circuit courts] . with courts reaching mixed results. The [United States Court of Appeals for the] Second Circuit has not weighed in on the issue, but the First, Ninth, and Seventh Circuits have held that the TPP is an enforceable contract. See Corvello [v. Wells Fargo Bank, N.A. , 728 F.3d 878, 885 (9th Cir. 2013) ] ; Young v. Wells Fargo Bank, N.A. , 717 F.3d 224, 235 (1st Cir. 2013) ; Wigod [v. Wells Fargo Bank, N.A. , 673 F.3d 547, 566 (7th Cir. 2012) ]. Those courts reasoned that the most natural and fair interpretation of the TPP is that the servicer must send a signed Modification Agreement offering to modify the loan once borrowers meet their end of the bargain.... [T]here could be no actual mortgage modification until all the requirements were met, but the servicer could not unilaterally and without justification refuse to send the offer." (Internal quotation marks omitted.) Henderson v. Wells Fargo Bank, NA , United States District Court, Civ. No. 3:13-cv-378 (JBA), 2016 WL 324939, *4 n.5 (D. Conn. January 27, 2016) ; see also Markey v. Ditech Financial LLC , United States District Court, Docket No. 3:15-cv-1711 (MPS), 2016 WL 5339572, *3 (D. Conn. September 22, 2016). General Statutes § 52-550 provides in relevant part: "(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged . (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars ." See Everbank v. Engelhard , Superior Court, judicial district of Waterbury, Docket No. CV-13-6019881, 2016 WL 4507450, *2 (July 28, 2016) (late payments accepted by lender under TPP constituted part performance, preventing application of statute of frauds); Corvello v. Wells Fargo Bank, N.A. , 728 F.3d 878, 885 (9th Cir. 2013) (finding part performance exception to statute of frauds under California law applicable to HAMP TPP because borrowers fully performed under TPP). Because we determine that the trial court improperly rendered summary judgment, I would decline to address the defendant's claims regarding her remaining special defenses. See Wykeham Rise, LLC v. Federer , 305 Conn. 448, 479 n.30, 52 A.3d 702 (2012) (reversing summary judgment and declining to reach defendants' claim that trial court improperly rejected their special defenses of waiver and unclean hands, noting that summary judgment decision, having been reversed, "presents no jurisdictional bar to the defendants' assertion of these special defenses on remand"). In its memorandum of law in reply to the defendant's opposition to the summary judgment motion, the plaintiff argued, in a combined section addressing the defendant's breach of contract special defense and breach of contract counterclaim, that the defendant's breach of contract claims failed on two grounds. First, the plaintiff argued that "[b]ecause the alleged final loan modification documents were never offered or delivered to [the] defendant or mutually assented to, they cannot form the basis of a binding, enforceable contract." Second, the plaintiff argued that the defendant provided no consideration to the plaintiff in exchange for the alleged modification agreement.

12503297

Bruce A. CADY v. ZONING BOARD OF APPEALS OF the TOWN OF BURLINGTON et al.

Cady v. Zoning Bd. of Appeals of the Town of Burlington

2018-12-11

SC 20011

315

325

196 A.3d 315

196

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

Bruce A. CADY v. ZONING BOARD OF APPEALS OF the TOWN OF BURLINGTON et al.

Bruce A. CADY v. ZONING BOARD OF APPEALS OF the TOWN OF BURLINGTON et al. SC 20011 Supreme Court of Connecticut. Argued April 3, 2018 Officially released December 11, 2018 William J. Tracy, Jr., Bristol, for the appellant (defendant GM Retirement, LLC). Marjorie Shansky, New Haven, for the appellee (plaintiff). Palmer, McDonald, Robinson, D'Auria, Mullins and Kahn, Js The listing of justices reflects their seniority status on this court as of the date of oral argument.

4614

28059

MULLINS, J. The defendant GM Retirement, LLC, appeals from the judgment of the trial court sustaining the administrative appeal of the plaintiff, Bruce A. Cady. In the present appeal, the defendant argues that the trial court improperly (1) concluded that the defendant's proposed revision of boundary lines between certain adjacent lots constituted a new subdivision under General Statutes § 8-18, thereby implicating § IV.B.5 of the Burlington Zoning Regulations (regulations), which requires an increased minimum lot area for new subdivisions, and (2) applied § III.F.7 of the regulations, which governs the establishment of nonconforming uses on preexisting lots. We conclude that the trial court improperly determined that the defendant's proposed lot line revisions constituted a subdivision and improperly applied § III.F.7 of the regulations. More specifically, we conclude that, when the town of Burlington (town) adopted § IV.B.5 of the regulations on October 1, 1983, the defendant's property contained three conforming, buildable lots, and that the proposed lot line revisions at issue in this case maintained three conforming, buildable lots. Thus, the defendant's proposed lot line revisions did not create a subdivision because those revisions did not divide one parcel of land into three or more parts. As a result, we further conclude that the defendant did not propose the establishment of a nonconforming use because the property lines, as revised, met the size requirements applicable to lots in existence as of October 1, 1983. Therefore, the trial court improperly applied § III.F.7 of the regulations to the present case. Accordingly, we reverse the judgment of the trial court. The record and the trial court's memorandum of decision reveal the following facts and procedural history. The plaintiff resides in Burlington, and the defendant owns property abutting the plaintiff to the east. Both the plaintiff's property and the defendant's property are bordered by Claire Hill Road to the north and Route 179 to the south. The defendant's property consists of 1.63 acres, which was once four lots. The largest of these four lots, 48 Claire Hill Road, contains a two family dwelling and occupied roughly the entire northerly half of the defendant's property. The remaining three lots are to the south along Route 179. The first of these lots, located to the east, was previously owned by Clara L. Rainault. The second lot, located in the center, was previously owned by Donald F. Wark and Ellen P. Wark. The third lot, located to the west, was previously owned by Mary Legowski. In 1959, the Department of Transportation took land from these three southerly lots to widen what is now Route 179. After the state widened Route 179, there were portions of each of the three southern lots that were unused. The unused portion of the eastern lot had been retained by Rainault but, because of the amount of that lot used to widen Route 179, that remnant became a nonconforming lot. The Department of Transportation had taken ownership of the Wark and Legowski lots in their entirety, and those lots remained conforming, even after a portion of each was used to widen Route 179. As a result, where there had once been four conforming lots, now there were three conforming lots. In 1986, the defendant's predecessor in title purchased the remnant of the Rainault lot. That lot was then combined with 48 Claire Hill Road to make one lot. The parties do not dispute that when the defendant's predecessor in title purchased the Rainault lot, it was combined with 48 Claire Hill Road. In 2013, the defendant purchased 48 Claire Hill Road, which now included the Rainault lot. Then, in 2014, the defendant purchased the remnants of the Wark and Legowski lots from the state. Thereafter, the defendant presented a map of the three lots with revised property boundaries to the town's zoning enforcement officer, Liz Burdick, for approval. In this map, dated May 22, 2014, the defendant proposed lot line revisions which reconfigured the three lots on its property. The sizes of the three reconfigured lots were, respectively, 30,261 square feet, 16,866 square feet, and 24,057 square feet. Burdick found that "[t]he three lots that were reconfigured as shown on this map [dated May 22, 2014] have been in existence since at least September 1958 as evidenced in a map entitled 'Town of Burlington, Map Showing Land Acquired from Clara L. Raineault, [b]y [t]he State of Connecticut .' " Burdick further explained as follows: "The land comprising the current [three] lots was originally [four] lots . The Rainault, Wark [and] Legowski lots were subject to a state taking for road improvements on Route [179]. The [s]tate . acquired the Wark [and] Legowski lots in their entirety in 1959. Rainault retained her (now non-conforming) lot and then transferred it to [the defendant's predecessor in title] in 1986 to be combined with 48 Claire Hill Road . Therefore, as of the time of the filing of the subject [l]ot [l]ine [r]evision map, it is my opinion there were three preexisting lots, one at 48 Claire Hill Road . and two on [Route 179] . which could be reconfigured as needed to comply with current minimum bulk requirements of the R-15 zoning district for purposes of lot improvement and that no subdivision was required in order to proceed to do so." (Footnote added.) Burdick further found that "the filing of the May 22, 2014 [l]ot [l]ine [r]evision [m]ap, reconfiguring the properties [into] conforming R-15 zone lots permits development ." The plaintiff filed an appeal with the town's Zoning Board of Appeals (board), which held a public hearing. The board ultimately denied the appeal and upheld Burdick's decision. The plaintiff then filed an appeal with the trial court pursuant to General Statutes § 8-8 (b), alleging that the board committed both procedural and substantive errors when it denied his appeal. Specifically, the plaintiff claimed, inter alia, that the proposed realignment of boundary lines for the three lots constituted a subdivision under § 8-18 and that the resultant lots were too small to satisfy the minimum lot area requirements for lots created by subdivision after October 1, 1983. The trial court agreed with the plaintiff and reversed the decision of the board. The trial court found that the board improperly concluded that the defendant's proposed lot line revision did not constitute a subdivision within the meaning of § 8-18. In reaching this conclusion, it relied on the Appellate Court's decision in Goodridge v. Zoning Board of Appeals , 58 Conn. App. 760, 765-66, 755 A.2d 329, cert. denied, 254 Conn. 930, 761 A.2d 753, and cert. denied, 254 Conn. 930, 761 A.2d 753 (2000), for the proposition that any change other than a "minor lot line adjustment . whereby no new lot is created" constitutes a subdivision. More specifically, the court stated "it would appear that a new subdivision was created because three new lots were created. [The second proposed lot] did not previously exist, and, at 16,866 square feet, it fails to comply with [§ IV.B.5 of the regulations, which requires a minimum of] 43,650 square feet. As an approximately 120 foot by 140 foot cut out of the former [48 Claire Hill Road] property, it cannot be said to be a minor lot line adjustment." (Citation omitted.) It concluded, therefore, that the change proposed by the defendant was not a minor lot line adjustment but was a subdivision. Having concluded that the defendant's proposed lot line revision constituted a subdivision, the trial court determined that § III.F.7 of the regulations must be applied to determine whether the lots were "preexisting." The trial court concluded that the board improperly determined that the lots were "preexisting" pursuant to § III.F.7 of the regulations. Instead, the trial court found that one of the lots in the lot line revision map was a new lot and failed to meet the greater area requirements of the regulations. This appeal followed. See footnote 2 of this opinion. I The defendant first asserts that the trial court improperly concluded that the defendant's revision of the lot lines constituted a "subdivision" for purposes of § 8-18. We agree. The plaintiff's appeal requires us to construe the meaning of the word subdivision. Therefore, this appeal raises an issue "of statutory construction, to which well settled principles and plenary review apply.... In seeking to determine that meaning, General Statutes § 1-2z directs us to first consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of a statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ." (Citation omitted; internal quotation marks omitted.) Kuchta v. Arisian , 329 Conn. 530, 534-35, 187 A.3d 408 (2018). We, therefore, begin with the text of the statute. Section 8-18 provides in relevant part: "As used in this chapter . 'subdivision' means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by [a planning commission], for the purpose, whether immediate or future, of sale or building development expressly excluding development for municipal, conservation or agricultural purposes ." In interpreting the meaning of the term "subdivision" in § 8-18, we do not write on a clean slate. In McCrann v. Town Plan & Zoning Commission , 161 Conn. 65, 70, 282 A.2d 900 (1971), this court examined the meaning of the term "subdivision" in § 8-18. In that case, the defendants sought to build on a plot of land consisting of 2.2 acres, which was created by combining two lots. Id. The plaintiffs asserted that the trial court improperly failed to treat the combining of the two lots into one lot as a subdivision. Id., at 69, 282 A.2d 900. This court rejected the plaintiffs' claim. Id., at 70, 282 A.2d 900. The court concluded first that the language of § 8-18 is clear and unambiguous. Id. The court then explained that, in order to constitute a subdivision, the clear language of the statute has two requirements: "(1) [t]he division of a tract or parcel of land into three or more parts or lots, and (2) for the purpose, whether immediate or future, of sale or building development." Id. Therefore, this court concluded that, because the site in question was created by combining two lots into one lot, "[t]here was no division of a tract into three or more parts or lots and in the absence of this statutory requirement there was no subdivision." Id. This court has not had the opportunity to interpret § 8-18 again since McCrann , and we see no reason to depart from that well reasoned decision. With that construction of § 8-18 in mind, we now must determine whether the lot line revision proposed by the defendant in the present case constituted a subdivision. The following facts are relevant to the resolution of that claim in the present case. Burdick found that "the three lots that were reconfigured as shown on this map have been in existence since at least September 1958 ." In making this determination, Burdick explained that the lot retained by Rainault after the taking by the state was "non-conforming" after a portion of it was used to widen Route 179. "Therefore, as of the time of the filing of the subject [l]ot [l]ine [r]evision map, it is my opinion there were three pre-existing lots, one at 48 Claire Hill Road . and two on [Route 179] . which could be reconfigured as needed to comply with current minimum bulk requirements of the R-15 zoning district for purposes of lot improvement and that no subdivision was required in order to proceed to do so." The board agreed that all three lots were in existence prior to 1983 and denied the plaintiff's appeal. The trial court then reversed the decision of the board and sustained the plaintiff's appeal. The trial court found that a new lot was created by the proposed lot line revision. In particular, the trial court determined that, because the lot line revisions were more than minor, and because, in its view, a new lot was created, the defendant's proposed lot line revisions constituted a subdivision. "As a preliminary matter, we set forth our standard of review. A zoning board of appeals is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal.... A reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record.... The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached.... The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citation omitted; internal quotation marks omitted.) Caruso v. Zoning Board of Appeals , 320 Conn. 315, 321, 130 A.3d 241 (2016). In the present case, the board's conclusion that the defendant's proposed lot line revision did not meet the definition of subdivision set forth in § 8-18 was supported by substantial evidence. In determining whether the defendant's proposed lot line revision constituted a subdivision, the board sought to determine what the property looked like at the time the town adopted its increased area regulations for new subdivisions in 1983. " Section 8-18 therefore directs our attention to the original tract of land from which the initial division of the property was made." Newman v. Planning & Zoning Commission , 293 Conn. 209, 216, 976 A.2d 698 (2009) ; see also id. (municipal planning and zoning commission properly applied its density regulations based on tract of land that existed at time subdivision requirements were first applied). After undertaking this inquiry, the board determined that there were three conforming lots in existence in 1983. The board's finding was consistent with Burdick's decision. Burdick explained that Rainault's lot had become nonconforming after the state took a portion of that lot to widen Route 179. Therefore, when the town's regulations were adopted in 1983, there were three conforming lots in existence-48 Claire Hill Road, the Wark lot, and the Legowski lot. Burdick further explained that Rainault's "now non-conforming" lot was combined with 48 Claire Hill Road in 1986. Indeed, the board upheld Burdick's decision that "there were three preexisting lots . which could be reconfigured as needed to comply with current minimum bulk requirements of the R-15 zoning district for purposes of lot improvement and that no subdivision was required in order to proceed to do so." Accordingly, the board denied the plaintiff's appeal. Instead of reviewing the board's decision to determine whether it was supported by substantial evidence, the trial court improperly considered whether the lots proposed by the defendant were of the same topography as the lots that had previously existed. This inquiry both exceeded the scope of the trial court's review of a board's decision and was inconsistent with § 8-18. It exceeded the scope because the board had determined that there were three conforming lots that had been in existence since at least 1959 and that the defendant's proposed lot line revisions did not divide any lot into three or more parts. Rather than assess whether those findings were supported by substantial evidence, the trial court appears to have disregarded those findings. Instead, the trial court engaged in an inquiry as to whether the lots created by the defendant's proposed lot line revision were similar in topography to the lots that existed before the proposed lot line revision. Nothing in § 8-18 requires or suggests that maintaining the topography of a lot is a consideration in determining whether a subdivision has occurred for purposes of the statute. Indeed, as we have explained previously herein, the appropriate inquiry under § 8-18 is whether one lot has been divided into three or more lots. In the present case, there was sufficient evidence to support the board's determination that the defendant's lot line revision did not constitute a subdivision, as that term is defined in § 8-18 and construed in McCrann , because one lot was not divided into three. The evidence shows that three conforming lots simply were reconfigured into three differently shaped, yet still conforming, lots. Accordingly, we conclude that the trial court's decision exceeded the scope of its authority and ignored the plain language of § 8-18. The plaintiff makes one final point we are compelled to address, that is, that the trial court properly relied on Goodridge v. Zoning Board of Appeals , supra, 58 Conn. App. at 765-66, 755 A.2d 329, to support its conclusion in the present case that the defendant's proposed lot line revision constituted a subdivision. We disagree. In Goodridge , the plaintiff claimed that the trial court improperly concluded that the property line changes constituted a subdivision when the plaintiff sought to add 0.005 acres from one lot to another. Id., at 762-64, 755 A.2d 329. The Appellate Court concluded as follows: "In this case, the land transferred from lot two to lot one was never divided from a whole parcel of land; rather it remained, at all times, as part of a larger parcel of land. Furthermore, the land never was sold separately or intended to be used for development, [but] simply was added to the adjacent parcel." Id., at 765, 755 A.2d 329. Accordingly, the Appellate Court concluded that the lot line revision in that case did not fall within the definition of "subdivision" set forth in § 8-18. In doing so, the Appellate Court explained: "A minor lot line adjustment between two existing lots, whereby no new lot is created, does not constitute a 'subdivision' as defined by § 8-18 and, thus, does not require municipal approval.... To accept every minor adjustment of property, even those that are inadvertent, as a 'subdivision' under § 8-18 would lead to a substantial increase in applications to municipal planning commissions and in land use appeals." Goodridge v. Zoning Board of Appeals , supra, 58 Conn. App. at 765-66, 755 A.2d 329. The plaintiff asserts that the trial court properly relied on this language to require that a lot line adjustment must be both minor and not create a new lot in order for the lot line adjustment not to constitute a subdivision under § 8-18. We disagree. The plaintiff does not point to, and the trial court did not rely on, any language in the text of § 8-18 that supports the conclusion that a lot line adjustment must be both minor and not create a new lot in order for the lot line adjustment not to constitute a subdivision. Instead, the plaintiff and the trial court rely only on the language of Goodridge . We disagree with this reading of Goodridge . Indeed, in that case, the Appellate Court never addressed whether more significant lot line adjustments would constitute a subdivision. Id. Rather, the Appellate Court concluded only that, under the facts presented in that case, the lot line adjustment did not constitute a subdivision for purposes of § 8-18. Id. Moreover, the interpretation of § 8-18 adopted by the trial court and asserted by the plaintiff in the present case is not supported by the language of the statute. It is well established that "a court must construe a statute as written.... Courts may not by construction supply omissions . or add exceptions merely because it appears that good reasons exist for adding them.... The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say.... It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature." (Internal quotation marks omitted.) Tuxis Ohr's Fuel, Inc. v. Administrator, Unemployment Compensation Act , 127 Conn. App. 739, 744, 16 A.3d 777 (2011), aff'd, 309 Conn. 412, 72 A.3d 13 (2013). Nothing in the plain language of § 8-18 indicates that the determination of whether a particular proposal constitutes a "subdivision" depends on the degree of the lot line adjustment. Indeed, § 8-18 does not address a lot line adjustment or the size of an adjustment at all; instead, it addresses "the division of a tract or parcel of land ." Similarly, § 8-18 does not address the creation of a new lot, but only the division into "three or more parts ." To be sure, the phrase "division of a tract or parcel of land into three or more parts or lots" demonstrates that the creation of one new lot does not constitute a subdivision. (Emphasis added.) General Statutes § 8-18. Accordingly, we conclude that the plain language of § 8-18 does not support the interpretation of the statute proposed by the plaintiff and adopted by the trial court. In the present case, the board's decision that there were three lots in existence as of 1983 and, therefore, that the defendant's proposed lot line revision did not constitute a subdivision because it also contained three lots, is supported by substantial evidence in the record. Accordingly, we conclude that the trial court improperly reversed the decision of the board and sustained the plaintiff's appeal. II The defendant next claims that the trial court improperly applied § III.F.7 of the regulations to its lots. Specifically, the defendant argues that its proposed lots meet the minimum size requirements for lots in existence prior to October 1, 1983, and therefore § III.F.7 of the regulations does not apply. We agree. Section III.F.7 of the Burlington Zoning Regulations provides: "Where safe and adequate disposal of sewage and a safe water supply, as required by the Public Health Code, can be provided without endangering the health and [safety] of adjoining residents, nothing in these [r]egulations shall prevent the construction of a permitted building or the establishment of a permitted use on a lot containing less than the prescribed area or width which at the time of adoption hereof or any pertinent amendment hereto was . [o]wned separately from any adjoining lot and filed in the Burlington land records, or . [s]hown on a plan of subdivision by the Planning and Zoning Commission and filed in the Burlington land records." (Emphasis added.) Section III.F.7 of the Burlington Zoning Regulations applies only to "a lot containing less than the prescribed area ." The proposed lots here, however, contain more than the minimum prescribed area. Indeed, as we explained previously herein, because we conclude that the defendant's lots were in existence prior to October 1, 1983, the lots meet the minimum size requirements of the R-15 zone. See Burlington Zoning Regs., § IV.B.5; see also footnote 7 of this opinion. Accordingly, we conclude that § III.F.7 of the regulations does not apply to the defendant's proposed lots. The judgment is reversed and the case is remanded with direction to dismiss the plaintiff's appeal. In this opinion the other justices concurred. APPENDIX - We note that, although the Town of Burlington Zoning Board of Appeals and its zoning enforcement officer, Liz Burdick, were also named as defendants in the underlying administrative appeal, they neither appealed nor filed briefs in this court. For the sake of simplicity, we refer to these parties by name and to GM Retirement, LLC, as the defendant. The defendant, on the granting of certification, appealed from the judgment of the trial court to the Appellate Court. We then transferred that appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. General Statutes § 8-18 provides in relevant part: "As used in this chapter . 'subdivision' means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by [a planning commission], for the purpose, whether immediate or future, of sale or building development expressly excluding development for municipal, conservation or agricultural purposes, and includes resubdivision ." A map depicting the various properties at issue in the present case, together with the defendant's proposed boundary revisions, has been attached as an appendix to this opinion. See footnote 6 of this opinion. The information contained within the record indicates that, at the time of this taking, this roadway formed part of Route 4. For the sake of simplicity, we use the road's current designation throughout this opinion. For ease of reference, a portion of this map has been reproduced as an appendix to this opinion. We note that the solid bold lines on this map show the boundaries proposed by the plaintiff. Previously existing parcels, by contrast, were delineated by simple dotted lines. Section IV.B of the regulations outlines the requirements applicable to lots within the R-15 zoning district, which is a residential zone. Specifically, § IV.B.5 of the Burlington Zoning Regulations provides in relevant part: "Minimum Lot Area: 43,560 square feet • For any lot created and record[ed] after January 1, 2002 • For any lot created by subdivision and recorded after October 1, 1983 15,000 square feet • For [any] lot in existence as of October 1, 1983 ." The parties do not dispute that the lots proposed by the defendant in the May 22, 2014 map would meet the minimum lot area requirements applicable to lots in existence as of October 1, 1983. The plaintiff had asserted, before both the board and the trial court, that there were only two lots in existence in 1983 because the Wark and Legowski lots merged at some point prior to 1983 when both lots were owned by the state. The board determined that the lots did not merge, and the trial court did not reverse that finding but instead concluded that "whether they merged is not really an issue." We conclude that we need not reach this issue because, even if there were only two lots in existence in 1983, the defendant's proposed lot line revision still would not constitute a subdivision. As we explained previously in this opinion, a subdivision is created only when one lot is divided into three or more parts. In the present case, one lot was never divided into three. Even under the plaintiff's view of the lots, two lots were divided into three, which does not constitute a subdivision for purposes of § 8-18. Although § 8-18 does not address the degree of the lot line adjustment, it is undisputed that, even if a lot line revision does not constitute a subdivision, the resultant lots still must meet the applicable minimum lot area requirements. In the present case, it is not disputed that the defendant's proposed lot line revision contained three lots that all met the minimum lot area requirements for the R-15 zoning district for a lot that was in existence as of October 1, 1983. See footnote 7 of this opinion.

12504944

Lisa BRUNO v. Reed WHIPPLE et al.

Bruno v. Whipple

2018-12-04

AC 40282

604

617

199 A.3d 604

199

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:42.438369+00:00

Fastcase

Lisa BRUNO v. Reed WHIPPLE et al.

Lisa BRUNO v. Reed WHIPPLE et al. AC 40282 Appellate Court of Connecticut. Argued September 14, 2018 Officially released December 4, 2018 Lisa Bruno, self-represented, the appellant (plaintiff). Stephen P. Fogerty, Westport, for the appellee (defendant Heritage Homes Construction Co., LLC). Lavine, Keller and Elgo, Js.

6074

37205

ELGO, J. This case returns to us following a remand to the trial court for a hearing in damages. See Bruno v. Whipple , 162 Conn. App. 186, 130 A.3d 899 (2015), cert. denied, 321 Conn. 901, 138 A.3d 280 (2016). The self-represented plaintiff, Lisa Bruno, appeals from the judgment of the trial court rendered in favor of the defendant Heritage Homes Construction Company, LLC. On appeal, the plaintiff claims that the trial court (1) improperly concluded that she failed to prove actual damages resulting from the defendant's breach of a residential construction contract and (2) exceeded the scope of the remand order. We affirm the judgment of the trial court. As this court has previously observed, the present case "arises from dealings between the parties concerning the construction by [the defendant] of a new home in Ridgefield for [the plaintiff] and her former husband, Stephen Bruno (Bruno)." Id., at 188-89, 130 A.3d 899. In her operative complaint, the plaintiff alleged that the defendant, as a party "to a contract with herself and Bruno to build the new home, had breached the contract . by conspiring with Bruno to launder his money through the project, and thus to deprive her of fair, just and reasonable alimony and division of assets in connection with the impending dissolution of her marriage. On that score, the plaintiff alleged, more particularly, that by December, 2005, when Bruno initiated marital dissolution proceedings against her, construction of the new home was nearly complete for what by then was the total sum of approximately $1,800,000. Thereafter, however, from December, 2005, to January, 2006, and from May, 2006, to July, 2006, Bruno paid [the defendant] additional sums totaling approximately $2,600,000, all purportedly for expenditures on the project that she did not authorize." Bruno v. Whipple , 138 Conn. App. 496, 498-99, 54 A.3d 184 (2012). More specifically, the plaintiff alleged that the defendant breached the construction contract by failing to provide her with (1) invoices on a biweekly basis and (2) written change orders regarding modifications to the contract. A trial was held in 2013. Following the close of evidence and at the request of the defendant, the court provided the jury with an instruction on the special defense of waiver. The court further instructed the jury to "separately answer jury interrogatories asking whether it 'f[ou]nd in favor of [the plaintiff] on her claim of breach of contract against [the defendant]' and, if so, whether '[the plaintiff] waived the breach of contract by [the defendant] .' " Bruno v. Whipple , supra, 162 Conn. App. at 196, 130 A.3d 899. The jury subsequently returned a verdict in favor of the defendant on the breach of contract claim. In so doing, the jury "expressly" based that verdict "on its answers to jury interrogatories that (1) [the defendant] had breached its contract with the plaintiff, but (2) the plaintiff had waived that breach." Id. The trial court denied the plaintiff's subsequent motion to set aside the verdict. Id., at 196-97, 130 A.3d 899. On appeal, this court concluded that the trial court improperly denied the motion to set aside the verdict in favor of the defendant on the breach of contract count. As the court stated, the trial court "abused its discretion by permitting [the defendant] to raise the special defense of waiver for the first time after the close of evidence at trial, as it had not been specially pleaded, the pleadings did not allege any facts supporting an inference of waiver, and the claim that the plaintiff knowingly relinquished her contractual rights was not fully litigated at trial without objection by the plaintiff. Accordingly . the court should have set aside the jury's verdict as to waiver." (Footnote omitted.) Id., at 207, 130 A.3d 899. In light of that conclusion, this court explained that it "must now address the scope of the remand of this case to the trial court. Specifically, we must determine whether the case should be remanded for a hearing in damages on the plaintiff's breach of contract claim or whether the jury's verdict on her breach of contract claim also must be set aside and remanded for a retrial on that issue." Id., at 207-208, 130 A.3d 899. The court noted that, "[i]n finding in favor of the plaintiff on her breach of contract claim, the jury essentially has determined liability in her favor against [the defendant] and the remaining determination is damages resulting from that breach." Id., at 208, 130 A.3d 899. Accordingly, this court concluded that "because the improper verdict on the special defense of waiver is wholly separable from the verdict in favor of the plaintiff on her breach of contract claim . limiting the remand to a hearing in damages on the breach of contract verdict does not work injustice in this case." Id. The court thus ordered the case to be "remanded for a hearing in damages on the jury's verdict in favor of the plaintiff on her breach of contract claim." Id., at 216, 130 A.3d 899. The trial court held a hearing in damages on January 26, 2017, at which the plaintiff submitted testimony from herself and James Bolan, a financial consultant employed by Charles Schwab, as well as certain documentary evidence. In her testimony, the plaintiff confirmed that her breach of contract claim was predicated on the defendant's failure to provide her with invoices on a biweekly basis and written change orders regarding modifications to the contract. The plaintiff maintained that those failures caused a diminution of her marital estate. In its February 21, 2017 memorandum of decision, the court made a number of factual findings that are not contested in this appeal. The court found that the plaintiff and Bruno entered into the contract at issue on October 28, 2004. The contract did not specify "a final, fixed price for construction of the residence," as the parties had agreed that the defendant would be paid for all services rendered. The construction costs were paid in part from the proceeds of a construction mortgage loan; the remaining construction costs were paid with funds from a Charles Schwab financial account (Schwab account). In December, 2005, Bruno commenced a dissolution action against the plaintiff. As part of that dissolution proceeding, the plaintiff and Bruno on July 10, 2006, entered into a written stipulation to complete the construction of the residence. The residence ultimately was completed and a certificate of occupancy issued on July 28, 2006. The final cost of construction, including land, totaled $7,746,462. In its memorandum of decision, the trial court also found that the plaintiff's marriage to Bruno was dissolved on March 17, 2008. As part of that judgment of dissolution, the dissolution court ordered that the net proceeds of the sale of the newly constructed residence shall be "divide[d] equally" between the plaintiff and Bruno. The dissolution court further found that, at the time of dissolution, the residence had a fair market value of $7.9 million. The dissolution court also awarded the plaintiff weekly alimony in the amount of $4000, culminating upon the death of the plaintiff or Bruno, or the remarriage of the plaintiff. With respect to the Schwab account that had been used as a source of funds for the construction of the new residence, the dissolution court found that it had a current balance of $2,451,343.62. As part of its financial orders, the dissolution court awarded the plaintiff $300,000 from that account and ordered that $22,826 be paid from that account to the defendant for an outstanding invoice. The dissolution court then ordered the remainder of the Schwab account "to be divided equally between" the plaintiff and Bruno. In her complaint, the plaintiff alleged in relevant part that the defendant's breach of contract deprived her "of fair, just and reasonable alimony and division of assets in connection with the dissolution of [her] marriage to Bruno." In ruling on the issue of damages, the court thus stated that "the plaintiff's claim for damages [on the breach of contract count] is measured by the amount that the marital estate was diminished as a direct and proximate result of [the defendant's] failure to provide her with biweekly invoices and change orders." The court found, "after careful review of the evidence introduced at the hearing in damages . that the plaintiff has not proven (and cannot prove from the evidence presented) that the marital estate was reduced by [the defendant's] breach of contract. The 'missing' funds [from the Schwab account] were paid to [the defendant ] to satisfy invoices for services rendered and materials furnished in constructing the [new residence].... The plaintiff introduced no evidence at the hearing in damages to contradict this finding. The [new residence] retained the value of the cash expended in its construction and remained a significant asset of the marital estate available for distribution to the plaintiff." (Citation omitted.) The court also rejected the plaintiff's ancillary claim that, but for the alleged diminution of the marital estate due to the defendant's breach of contract, she would have received a larger award of alimony and property distribution. In this regard, the court found that the plaintiff's claim was "entirely too speculative," as it was predicated solely on a "projection" of what the court in the dissolution proceeding "likely would have awarded to her if facts had been different in her dissolution of marriage action." (Emphasis in original.) The court therefore concluded that the plaintiff had "failed to prove by a preponderance of the evidence that she is entitled to any damages on her breach of contract claims ." For that reason, the court stated that "judgment enters in favor of [the defendant] and against the plaintiff." From that judgment, the plaintiff now appeals. I The plaintiff claims that the court improperly found that she failed to prove actual damages resulting from the defendant's breach of the construction contract. We disagree. It is well established that "[t]he trial court has broad discretion in determining damages.... The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.... [W]hether the decision of the trial court is clearly erroneous . involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.... In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.... On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.... A factual finding may be rejected by this court only if it is clearly erroneous.... A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Gianetti v. Norwalk Hospital , 304 Conn. 754, 780, 43 A.3d 567 (2012). In addition, we note that the plaintiff bears the burden of proving the extent of the damages suffered in a breach of contract action. Naples v. Keystone Building & Development Corp. , 295 Conn. 214, 224, 990 A.2d 326 (2010). As the plaintiff acknowledges in her principal appellate brief, her theory of damages pertains to the dissipation of marital funds in the Schwab account. Following a hearing at which it received both documentary and testimonial evidence, the trial court found that the funds withdrawn from that account all were "paid to [the defendant] to satisfy invoices" regarding the construction of the residence. The court further found that "[t]he plaintiff introduced no evidence . to contradict this finding." On our review of the record, we cannot say that those findings are clearly erroneous. The court further found that the newly constructed residence "retained the value of the cash [from the Schwab account] expended in its construction and remained a significant asset of the marital estate available for distribution to the plaintiff." That finding too is substantiated by the evidence in the record before us. In its March 17, 2008 memorandum of decision, which was admitted into evidence as a full exhibit at the hearing in damages, the dissolution court found that the total cost of construction of the residence was $7,746,462.08 and that the fair market value of that property at the time of dissolution was $7,900,000. The plaintiff provided no evidence that the property lost any value between the time that the funds from the Schwab account were expended on construction costs and the date of dissolution. As the dissolution court noted in its memorandum of decision, the plaintiff, at the time of dissolution, averred that "the value of this property is $7,777,433"-approximately $31,000 more than the total cost of construction. On appeal, the plaintiff claims that, if the defendant had not breached the terms of its contract, (1) "the dissipated funds would have remained safely in the Schwab account earning interest and would ultimately have been required to be distributed in [the] plaintiff's divorce" and (2) she would have received a larger alimony award due to the existence of those additional funds in the Schwab account. (Emphasis omitted.) Those contentions are entirely speculative. See Leisure Resort Technology, Inc. v. Trading Cove Associates , 277 Conn. 21, 35, 889 A.2d 785 (2006) (award of damages may not be based on conjecture); Narumanchi v. DeStefano , 89 Conn. App. 807, 815, 875 A.2d 71 (2005) ("[s]peculation and conjecture have no place in appellate review"). As the trial court aptly noted in its memorandum of decision, the plaintiff's contentions are little more than conjecture as to what the dissolution court would have awarded her "if facts had been different" in her dissolution proceeding. Moreover, the plaintiff's claim that the dissolution court would have altered its financial orders had funds from the Schwab account not been expended on construction costs without her approval overlooks the fact that the plaintiff raised that very issue in the dissolution proceeding. The record before us indicates that she filed a "Motion for Order-Pendente Lite" on January 17, 2006, in which she alleged in relevant part that "[s]ince the commencement of this [dissolution] action [Bruno] has continued with the construction of the new [residence], unilaterally expending large sums of marital assets . without the knowledge and consent of the [plaintiff]." She therefore requested an order prohibiting Bruno from making any further expenditures without her written consent. Months later, the plaintiff entered into a stipulation with Bruno to complete the construction of the new residence. The plaintiff subsequently filed a motion for contempt regarding Bruno's alleged noncompliance with the terms of that stipulation. In its decision, the dissolution court specifically found that "there has been no evidence presented that the amount spent [on construction costs] constituted a dissipation of marital assets." The record also indicates that the plaintiff filed a second motion for contempt with the dissolution court predicated on an alleged violation of the automatic order prohibiting the sale, transfer, or disposal of marital property. See generally Practice Book § 25-5 (b) (1). In that motion, the plaintiff alleged that Bruno had violated that order since the commencement of the dissolution by refusing "to keep [her] involved in the construction" of the new residence and by "unilaterally [making] decisions to spend huge sums of money which were never previously contemplated, discussed or approved by the [plaintiff ]." (Emphasis in original.) The dissolution court denied that motion for contempt on March 17, 2008-the very same day that it dissolved the marriage and entered its financial orders. The dissolution court, therefore, was well aware of the plaintiff's allegations regarding the payment of construction costs during the pendency of the divorce. Indeed, that court, in fashioning its financial orders, awarded the plaintiff the lump sum of $300,000 from the Schwab account prior to dividing the remainder equally between her and Bruno. That order may well have been issued in response to the plaintiff's repeated claims regarding the unauthorized payment of construction costs from the Schwab account. On the record before us, we cannot conclude, without resort to conjecture, that the dissolution court would have granted the plaintiff a greater property distribution or alimony award had the funds from the Schwab account not been expended on the construction costs in question. Furthermore, the plaintiff did not adduce evidence at the hearing in damages that her claimed damages were the foreseeable result of the defendant's failure to provide her with invoices on a biweekly basis and written change orders regarding modifications to the contract. As our Supreme Court has explained, "[i]n an action founded . on breach of contract . the recovery of the plaintiffs [is] limited to those damages the defendant had reason to foresee as the probable result of the breach at the time when the contract was made." Neiditz v. Morton S. Fine & Associates, Inc. , 199 Conn. 683, 689 n.3, 508 A.2d 438 (1986) ; see also Meadowbrook Center, Inc. v. Buchman , 149 Conn. App. 177, 188-89, 90 A.3d 219 (2014) ("under Connecticut law, the causation standard applicable to breach of contract actions asks . whether [the plaintiff's damages] were foreseeable to the defendant and naturally and directly resulted from the defendant's conduct"). The evidence in the record does indicate that the funds in question from the Schwab account were expended on construction costs of the new residence, as the trial court found. The evidence further indicates that the new residence retained its value throughout the dissolution proceeding and that, following the dissolution of her marriage to Bruno, the plaintiff was awarded an equal share of the net proceeds of the sale of that residence. We therefore conclude that the court's finding that the plaintiff "has not proven . that the marital estate was reduced by [the defendant's] breach of contract" is not clearly erroneous. Accordingly, the court properly determined that the plaintiff had not met her burden in demonstrating entitlement to her claimed damages. II The plaintiff also contends that the court committed reversible error by exceeding the scope of the remand order when it directed judgment to enter "in favor of the defendant and against [the] plaintiff" on the breach of contract count of the complaint. We agree that the court's directive was improper in light of the prior jury verdict in favor of the plaintiff on that count. Guided by the precedent of our Supreme Court, we nonetheless conclude that the court's directive does not constitute reversible error under the facts of this case. "Determining the scope of a remand is a matter of law because it requires the trial court to undertake a legal interpretation of the higher court's mandate in light of that court's analysis.... Because a mandate defines the trial court's authority to proceed with the case on remand, determining the scope of a remand is akin to determining subject matter jurisdiction.... We have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary.... "Well established principles govern further proceedings after a remand by this court. In carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion . This is the guiding principle that the trial court must observe.... The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein.... The trial court cannot adjudicate rights and duties not within the scope of the remand.... It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. No judgment other than that directed or permitted by the reviewing court may be rendered ." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Brundage , 320 Conn. 740, 747-48, 135 A.3d 697 (2016). In the present case, the jury completed interrogatories indicating that it found that the defendant "had breached its contract" with the plaintiff. Bruno v. Whipple , supra, 162 Conn. App. at 196, 130 A.3d 899. Yet those completed interrogatories also demonstrate that the jury never determined the amount of damages sustained by the plaintiff as a result of that breach. Rather, after finding that the plaintiff had waived her breach of contract claim, the jury proceeded to enter a verdict in favor of the defendant. In light of that procedural history, this court explained that "[i]n finding in favor of the plaintiff on her breach of contract claim, the jury essentially has determined liability in her favor against [the defendant] and the remaining determination is damages resulting from that breach ." (Emphasis added.) Id., at 208, 130 A.3d 899. Put simply, the plaintiff's damages in this case never were determined by the jury. Because the jury's verdict in favor of the plaintiff on the breach of contract count was "wholly separable" from the jury's improper verdict on the special defense of waiver, the court concluded that "limiting the remand to a hearing in damages on the breach of contract verdict does not work injustice in this case." Id. The court thus remanded the case "for a hearing in damages on the jury's verdict in favor of the plaintiff on her breach of contract claim." Id., at 216, 130 A.3d 899 ; accord Channing Real Estate, LLC v. Gates , 326 Conn. 123, 132, 161 A.3d 1227 (2017) ("[w]hen no question of liability remains . the appropriate scope of the remand is limited to a hearing in damages"). "[T]he underlying purpose of a hearing in damages is to assist the trial court in determining the amount of damages to be awarded." (Internal quotation marks omitted.) Catalina v. Nicolelli , 90 Conn. App. 219, 222-23, 876 A.2d 588 (2005). When the liability of a defendant has been established, "the plaintiff's burden at a hearing in damages is limited to proving that the amount of damages claimed is derived from the injuries suffered and is properly supported by the evidence." Murray v. Taylor , 65 Conn. App. 300, 335, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001). In addition to the precise quantum of damages, a plaintiff in a breach of contract action must prove that the damages "were foreseeable to the defendant and naturally and directly resulted from the defendant's conduct." Meadowbrook Center, Inc. v. Buchman , supra, 149 Conn. App. at 188-89, 90 A.3d 219. Accordingly, while a defendant may not challenge the issue of its liability at a hearing in damages, it nevertheless remains free to contest the issues of both the amount of the plaintiff's breach of contract damages and whether those damages derive from the defendant's conduct. It is well established that the "[d]etermination of damages necessarily contemplates a finding that the breach was the cause of the damages claimed." West Haven Sound Development Corp. v. West Haven , 207 Conn. 308, 314, 541 A.2d 858 (1988) ; see also National Market Share, Inc. v. Sterling National Bank , 392 F.3d 520, 525 (2d Cir. 2004) ("[c]ausation is an essential element of damages in a breach of contract action"); Calig v. Schrank , 179 Conn. 283, 286, 426 A.2d 276 (1979) ("[i]t is hornbook law that to be entitled to damages in contract a plaintiff must establish a causal relation between the breach and the damages flowing from that breach"); Meadowbrook Center, Inc. v. Buchman , supra, 149 Conn. App. at 186, 90 A.3d 219 ("proof of causation . properly is classified as part and parcel of a party's claim for breach of contract damages"); 3 Restatement (Second), Contracts § 346 (1981) (in order to receive anything other than nominal damages, party must prove both that breach of contract "caused" loss and amount of loss). For that reason, a trial court does not violate public policy or otherwise undermine the validity of a prior determination of liability by permitting the defendant at a hearing in damages to offer evidence disputing the existence of damages resulting from its breach of contract. As our Supreme Court explained years ago, even when liability on the part of a defendant has been established, "[i]t does not follow that the plaintiff is entitled to a judgment for the full amount of the relief claimed. The plaintiff must still prove how much of the judgment prayed for in the complaint he is entitled to receive." United National Indemnity Co. v. Zullo , 143 Conn. 124, 130, 120 A.2d 73 (1956) ; see also Mackin v. Mackin , 186 Conn. 185, 190, 439 A.2d 1086 (1982) ("[t]o sustain an award of substantial damages requires a showing of an actual, as opposed to a mere technical injury"). Following a hearing at which the plaintiff was afforded ample opportunity to present evidence relevant to the issues at hand, the court in the present case found that she had not met her burden in demonstrating that the defendant's conduct, in failing to furnish invoices on a biweekly basis and written change orders, caused the diminution of her marital estate as alleged in the operative complaint. In part I of this opinion, we concluded that this finding was not clearly erroneous. The court, therefore, properly declined to award the actual damages claimed by the plaintiff. It nevertheless remains that the jury found that the defendant "had breached its contract with the plaintiff"; Bruno v. Whipple , supra, 162 Conn. App. at 196, 130 A.3d 899 ; thereby establishing the liability of the defendant. Id., at 208, 130 A.3d 899. When a plaintiff can demonstrate a technical breach of contract, but no pecuniary damages resulting therefrom, the plaintiff "is entitled to nominal damages . under its breach of contract claim." Lydall, Inc . v. Ruschmeyer , 282 Conn. 209, 254, 919 A.2d 421 (2007). That precept is consistent with the rule that "[w]here the [trier of fact] has found that the plaintiff has suffered a technical legal injury, the plaintiff is entitled to at least nominal damages." Lyons v. Nichols , 63 Conn. App. 761, 768, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001) ; see also Wasko v. Manella , 87 Conn. App. 390, 400 n.8, 865 A.2d 1223 (2005) ("[n]ominal damages are recoverable where there is a breach of a legal duty or the invasion of a legal right and no actual damages result or where, as here, such damages are not proven"); News America Marketing In-Store, Inc. v. Marquis , 86 Conn. App. 527, 535, 862 A.2d 837 (2004) ("[i]f a party has suffered no demonstrable harm . that party may be entitled . to nominal damages for breach of contract"), aff'd, 276 Conn. 310, 885 A.2d 758 (2005). Because the defendant's liability was established by the jury verdict in favor of the plaintiff on the breach of contract count, the plaintiff was entitled to an award of nominal damages despite her failure to establish actual damages at the hearing in damages. The defendant in this appeal has provided no authority to the contrary. The trial court, therefore, erroneously directed judgment to enter in favor of the defendant in this case. The remaining question is whether that improper determination constitutes reversible error. In answering that query, we are mindful that our Supreme Court repeatedly has applied the general rule that it "will not reverse" a judgment of the trial court "for a mere failure to award nominal damages." (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc ., 255 Conn. 20, 37, 761 A.2d 1268 (2000) ; see also Riccio v. Abate , 176 Conn. 415, 418-19, 407 A.2d 1005 (1979) ; Sessa v. Gigliotti , 165 Conn. 620, 622, 345 A.2d 45 (1973) ; Went v. Schmidt , 117 Conn. 257, 259-60, 167 A. 721 (1933). This court has adhered to that precedent. See, e.g., NPC Offices, LLC v. Kowaleski , 152 Conn. App. 445, 458, 100 A.3d 42 (2014), rev'd on other grounds, 320 Conn. 519, 131 A.3d 1144 (2016) ; Rossman v. Morasco , 115 Conn. App. 234, 243 n.7, 974 A.2d 1, cert. denied, 293 Conn. 923, 980 A.2d 912 (2009) ; Froom Development Corp. v. Developers Realty, Inc. , 114 Conn. App. 618, 635 n.10, 972 A.2d 239, cert. denied, 293 Conn. 922, 980 A.2d 909 (2009) ; Hughes v. Lamay , 89 Conn. App. 378, 386 n.7, 873 A.2d 1055, cert. denied, 275 Conn. 922, 883 A.2d 1244 (2005) ; DeVito v. Schwartz , 66 Conn. App. 228, 237, 784 A.2d 376 (2001). The rationale for that general rule against reversal is that "[n]ominal damages mean no damages at all. They exist only in name, and not in amount." (Internal quotation marks omitted.) Beattie v. New York, N. H. & H. R. Co. , 84 Conn. 555, 559, 80 A. 709 (1911) ; accord DeVito v. Schwartz , supra, 66 Conn. App. at 237, 784 A.2d 376 ("nominal damages . imply the smallest appreciable quantity . with one dollar being the amount frequently awarded. The law . does not concern itself with trifles . and a judgment for [the] plaintiff will not be reversed on appeal for a failure to award nominal damages, even though [the] plaintiff is entitled to recover nominal damages as a matter of law" [internal quotation marks omitted] ). Furthermore, the Supreme Court has applied that general rule in cases involving liability for a technical breach of contract. As the court explained in Waicunas v. Macari , 151 Conn. 134, 139, 193 A.2d 709 (1963), "[e]ven though the failure of the defendants to do the work might be considered a technical breach of the contract, the plaintiff has suffered no actual damage, and no injustice was done to him when he was denied recovery . The failure to award nominal damages would not justify a reversal of the judgment." Like the present case, Riccio v. Abate , supra, 176 Conn. at 415, 407 A.2d 1005, involved a hearing in damages following a finding of liability on the part of the defendants. As our Supreme Court noted, "[t]he issue of liability had been previously decided . and, therefore, the [finder of fact] had before [it] only a hearing in damages. The defendants were found liable by the [finder of fact] and the effect of their liability was to establish the fact that a technical legal injury had been done by them to the plaintiff, and this entitled the plaintiff to at least nominal damages." Id., at 418-19, 407 A.2d 1005. The court nevertheless recognized the general rule that it will not reverse a judgment of the trial court "for a mere failure to award nominal damages." Id., at 419, 407 A.2d 1005. Because the case did not warrant an exception to that rule, the court concluded that "it was not reversible error that the plaintiff was not awarded nominal damages"; id. ; despite the fact that judgment had been rendered in favor of the defendants by the court. Id., at 417, 407 A.2d 1005. That logic applies equally to the present case. We therefore conclude that the failure of the trial court to award nominal damages and render judgment in favor of the plaintiff on her breach of contract count does not constitute reversible error. The judgment is affirmed. In this opinion the other judges concurred. Reed Whipple, who at all relevant times was the owner of Heritage Homes Construction Company, LLC, also was named as a defendant in the plaintiff's complaint. Prior to trial, the court rendered summary judgment in favor of Whipple on the breach of contract and breach of the implied covenant of good faith and fair dealing counts of the operative complaint, which judgment this court affirmed. See Bruno v. Whipple , 138 Conn. App. 496, 504-513, 54 A.3d 184 (2012). A jury thereafter returned a verdict in favor of Whipple on the third and final count against him, which alleged a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The trial court subsequently denied the plaintiff's posttrial motion to set aside that verdict, and this court affirmed the propriety of that determination on appeal. See Bruno v. Whipple , supra, 162 Conn. App. at 209-12, 130 A.3d 899. The present appeal does not involve any claim against Whipple. Rather, it pertains only to the breach of contract count against Heritage Homes Construction Company, LLC. For that reason, we refer to Heritage Homes Construction Company, LLC, as the defendant in this appeal. The plaintiff also alleges that the court improperly denied her request for an award of attorney's fees pursuant to General Statutes § 42-150bb. We decline to review that inadequately briefed claim. See Brady-Kinsella v. Kinsella , 154 Conn. App. 413, 420 n.6, 106 A.3d 956 (2014), cert. denied, 315 Conn. 929, 110 A.3d 432 (2015). We further conclude that the plaintiff's claims that the court violated her constitutional rights to procedural and substantive due process during the hearing in damages are unfounded and do not merit substantive discussion. The rescript to that decision states in full: "The judgment is reversed only as to the jury's verdict on the special defense of waiver and the case is remanded for a hearing in damages on the jury's verdict in favor of the plaintiff on her breach of contract claim. The judgment is affirmed in all other respects." Bruno v. Whipple , supra, 162 Conn. App. at 216, 130 A.3d 899. At the hearing in damages, a copy of the construction contract at issue was admitted into evidence. That contract does not specify any price. Instead, it provides in relevant part that the plaintiff and Bruno agree "to pay for all work, labor, and materials" provided by the defendant. At the hearing in damages, the plaintiff testified that "the bulk of our liquid [marital] assets" had been held in the Schwab account. It is undisputed that approximately $1.1 million of that total cost was expended on land acquisition. The judgment file likewise states in relevant part that "judgment is entered in favor of [the defendant] on [the breach of contract count] of the complaint." At oral argument before this court, the plaintiff acknowledged that she had raised the issue of Bruno's allegedly improper expenditure of funds from the Schwab account during the dissolution proceeding. In her appellate brief, the plaintiff also claims that the court (1) "violated public policy," (2) effectively opened and set aside the jury's verdict, (3) violated the doctrines of res judicata and collateral estoppel, and (4) "lacked jurisdiction to hear evidence or argument of [the defendant's] new unplead[ed] theories." Resolution of those intertwined claims is subsumed by our analysis of her principal contention that the court exceeded the scope of the remand order. The fourth interrogatory on the jury interrogatory form stated: "We find that [the plaintiff] waived the [b]reach of [c]ontract by [the defendant]." The jury foreperson checked the "Yes" box under that interrogatory. The jury interrogatory form then instructed: "If Yes, go to [the defendant's] Verdict Form." In accordance with that instruction, the jury foreperson signed the defendant's verdict form, which stated: "In this case, we the jury find the issues in favor of [the defendant]." Had the jury answered the fourth interrogatory in the negative, the form directed it to proceed to a fifth interrogatory, which asked the jury to specify "the amount of [c]ompensatory [d]amages as against [the defendant]." Nominal damages have been defined as "a trivial sum of money awarded to a litigant who has established a cause of action but has not established that he is entitled to compensatory damages." 4 Restatement (Second), Torts § 907, p.462 (1979). "Nominal damages are usually fixed at one cent, one dollar, or some similar small amount.... While no exact standard has been fixed as to what amount should be given as nominal damages, it must be insubstantial, a few cents or dollars." (Internal quotation marks omitted.) Hartford v. International Assn. of Firefighters, Local 760 , 49 Conn. App. 805, 816 n.7, 717 A.2d 258, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998).

12493440

Richard MEGOS v. Karin RANTA

Megos v. Ranta

2018-02-06

AC 38670

645

650

180 A.3d 645

180

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.942366+00:00

Fastcase

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

Richard MEGOS v. Karin RANTA

Richard MEGOS v. Karin RANTA AC 38670 Appellate Court of Connecticut. Argued December 5, 2017 Officially released February 6, 2018 Hugh D. Hughes, with whom, on the brief, were Brian Flood and Alexander Bates, for the appellant (plaintiff). J. Kevin Golger, with whom was Todd Lampert, for the appellee (defendant). DiPentima, C.J., and Bright and Eveleigh, Js.

2522

15291

BRIGHT, J. In this appeal, we are called upon to answer one very important question, namely, whether an action brought pursuant to General Statutes § 52-62 is 'commenced'' upon service of process on the Commissioner of Motor Vehicles (commissioner). We answer that question in the affirmative. The plaintiff in the present case, Richard Megos, appeals from the judgment of the trial court dismissing his complaint, brought pursuant to the accidental failure of suit statute, General Statutes § 52-592, on the ground that the original § 52-62 action had not been 'commenced'' because the defendant, Karin Ranta, did not have actual notice of the suit before the running of the applicable statute of limitations. On appeal, the plaintiff claims this was error. We agree and, accordingly, reverse the judgment of the trial court. The following facts and procedural history, as either found by the court or revealed by the record, provide the background necessary for our review. On February 20, 2013, the plaintiff filed an application for prejudgment remedy against the defendant. The plaintiff alleged that, on October 13, 2012, the defendant, who resided in New York, operated her motor vehicle in a careless and negligent manner when she struck the motorcycle that the plaintiff was driving. The court granted an attachment in the amount of $2 million. The plaintiff, however, thereafter failed to serve the writ, summons, and complaint, and return the same to the Superior Court within thirty days in accordance with General Statutes § 52-278j (a). The court, therefore, dismissed the matter on June 10, 2014. On October 12, 2014, one day prior to the running of the statute of limitations; see General Statutes § 52-584 ; the plaintiff attempted to serve a complaint alleging negligent operation of a motor vehicle against the defendant. The marshal's return, dated October 21, 2014, provided that service had been effectuated on October 12, 2014, by leaving a true and attested copy of the writ, summons, and complaint at the office of the commissioner, and by mailing a copy, certified return receipt, to the defendant at 120 Central Park South, Apt. 4C, New York, New York. The defendant filed a motion to dismiss the complaint on the ground that service had not been effectuated on her at her 'last known address'' as required under § 52-62, because it had been more than one year since she had lived on Central Park South and she did not receive a copy of the action. On June 23, 2015, the court granted the motion to dismiss holding that service was not in compliance with the statute and that, therefore, the court had no personal jurisdiction over the defendant. On June 30, 2015, the plaintiff filed the present action under the accidental failure of suit statute, § 52-592. The defendant filed a motion to dismiss the June 30, 2015 complaint on the ground that 'she was not properly served pursuant to . § 52-62, and since she never received notice of the suit, the action cannot be saved pursuant to . § 52-592, and therefore, this court lacks personal jurisdiction over her.'' In short, the defendant contended in her memorandum in support of her motion to dismiss that the previous action had not been 'commenced within the time limited by law'' because the writ, summons, and complaint were mailed to her previous address and she did not receive notice of the action prior to the running of the statute of limitations for negligence actions. (Internal quotation marks omitted.) In a November 25, 2015 memorandum of decision, the court granted the motion to dismiss, holding that 'in order for the action to have 'commenced,' as required by § 52-592, the defendant must receive effective notice of the suit through the attempted service of the writ, summons and complaint by the marshal within the time limit prescribed by law. An action has not been commenced against a defendant where the defendant had not received or seen a copy of the complaint.... In this case, there is no evidence that the defendant was ever served or ever saw a copy of the complaint before the statute of limitations expired.'' This appeal followed. The plaintiff claims that the court erred in dismissing his complaint. He argues that the previous action was 'commenced'' when the marshal served the commissioner and that such service was effectuated before the running of the statute of limitations. He further contends that the requirement in § 52-62 (c), that the writ, summons, and complaint be mailed to the defendant, does not affect the commencement of the action. We agree with the plaintiff. We set forth the standard of review applicable to this appeal. 'A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.'' (Internal quotation marks omitted.) Henriquez v. Allegre , 68 Conn. App. 238, 242, 789 A.2d 1142 (2002). 'Where the trial court is presented with undisputed facts . our review of its conclusions is plenary, as we must determine whether the court's conclusions are legally and logically correct .'' (Internal quotation marks omitted.) Metcalfe v. Sandford , 81 Conn. App. 96, 98-99, 837 A.2d 894, aff'd, 271 Conn. 531, 858 A.2d 757 (2004). Our resolution of this appeal requires us to construe the language of § 52-62 in the context of an action brought pursuant to § 52-592. 'When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.'' (Internal quotation marks omitted.) State v. Agron , 323 Conn. 629, 633-34, 148 A.3d 1052 (2016). '[W]ith all issues of statutory interpretation, we look first to the language of the statute[s].... In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended.... Furthermore, [i]t is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions.... [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous.'' (Citations omitted; internal quotation marks omitted.) Rocco v. Garrison , 268 Conn. 541, 550, 848 A.2d 352 (2004). Section 52-592 (a) provides in relevant part: 'If any action, commenced within the time limited by law , has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed . the plaintiff . may commence a new action . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.'' (Emphasis added.) As our Supreme Court has explained, '[this] provision is remedial in its character. It was passed to avoid hardships arising from an unbending enforcement of limitation statutes.... As we have also stated, however, the extension of time [in § 52-592 is] in terms made applicable to all cases where a suit seasonably begun [has] failed for the causes stated.... Therefore, § 52-592applies only when there has been an original action that had been commenced in a timely fashion .'' (Citations omitted; emphasis altered; internal quotation marks omitted.) Capers v. Lee , 239 Conn. 265, 271, 684 A.2d 696 (1996). In this appeal, therefore, we are called upon to determine whether the plaintiff timely commenced an action under § 52-62, thereby making it savable under § 52-592. Section 52-62 provides in relevant part: '(a) Any nonresident of this state who causes a motor vehicle to be used or operated upon any public highway or elsewhere in this state shall be deemed to have appointed the Commissioner of Motor Vehicles as his attorney and to have agreed that any process in any civil action brought against him on account of any claim for damages resulting from the alleged negligence of the nonresident or his agent or servant in the use or operation of any motor vehicle upon any public highway or elsewhere in this state may be served upon the commissioner and shall have the same validity as if served upon the nonresident personally . '(c) Process in such a civil action against a nonresident shall be served by the officer to whom the process is directed upon the Commissioner of Motor Vehicles by leaving with or at the office of the commissioner, at least twelve days before the return day of the process, a true and attested copy thereof, and by sending to the defendant or his administrator, executor or other legal representative, by registered or certified mail, postage prepaid, a like true and attested copy , with an endorsement thereon of the service upon the commissioner, addressed to the defendant or representative at his last-known address .'' (Emphasis added.) The plaintiff argues that, under § 52-62 (a), service on the commissioner is the equivalent of personal service on the defendant. Consequently, because personal service on a defendant undoubtedly commences an action, the same must be true of service on the commissioner under § 52-62. The defendant argues that ' '[o]ne who is not served with process does not have the status of a party to the proceeding' ' and ' '[a]n action is commenced not when the writ is returned but when it is served upon the defendant.' ' Although the defendant's argument generally is a sound statement of the law, in this particular instance, § 52-62expressly provides that service on the commissioner has the same validity as service on the defendant personally . We, therefore, agree with the plaintiff's position that, under the plain language of the statute, there can be no doubt that by timely serving the commissioner, the plaintiff served the defendant personally, thereby commencing the civil action on October 12, 2014, prior to the running of the statute of limitations. The defendant contends that such a conclusion ignores the specific service requirements contained in subsection (c). She argues that subsection (c) requires process to be served by two methods : (1) by service on the commissioner and (2) by mailing a copy to the defendant at her last known address via certified mail. Although we agree that subsection (c) contains these two requirements, we conclude that this subsection addresses the sufficiency of the service of process rather than the commencement of the civil action. Thus, as was true with the first case filed by the plaintiff, a defendant may be entitled to a dismissal for insufficiency of service if a plaintiff fails to comply with subsection (c). This, however, does not mean that the action was not 'commenced'' under subsection (a) for purposes of a claim brought pursuant to § 52-592. In fact, had the legislature intended such a result, it would have included the requirements of subsection (c) in subsection (a). The fact that it chose not to do so is a clear indication that it intended each subsection to address a different issue. In conclusion, the plain language of subsection (a) of § 52-62 provides that service on the commissioner has the same validity as service on the defendant personally . When the defendant is served personally, the action is commenced. Accordingly, the court improperly dismissed the action under § 52-592 on the ground that the previous action had not been commenced prior to the running of the statute of limitations. The judgment is reversed and the case is remanded for further proceedings. In this opinion the other judges concurred. General Statutes § 52-62 provides in relevant part: '(a) Any nonresident of this state who causes a motor vehicle to be used or operated upon any public highway or elsewhere in this state shall be deemed to have appointed the Commissioner of Motor Vehicles as his attorney and to have agreed that any process in any civil action brought against him on account of any claim for damages resulting from the alleged negligence of the nonresident or his agent or servant in the use or operation of any motor vehicle upon any public highway or elsewhere in this state may be served upon the commissioner and shall have the same validity as if served upon the nonresident personally.... '(c) Process in such a civil action against a nonresident shall be served by the officer to whom the process is directed upon the Commissioner of Motor Vehicles by leaving with or at the office of the commissioner, at least twelve days before the return day of the process, a true and attested copy thereof, and by sending to the defendant or his administrator, executor or other legal representative, by registered or certified mail, postage prepaid, a like true and attested copy, with an endorsement thereon of the service upon the commissioner, addressed to the defendant or representative at his last-known address. The officer serving the process upon the Commissioner of Motor Vehicles shall leave with the commissioner, at the time of service, a fee of twenty dollars, which fee shall be taxed in favor of the plaintiff in his costs if he prevails in the action. The Commissioner of Motor Vehicles shall keep a record of each such process and the day and hour of service. '(d) For the purposes of this section, the term 'nonresident' includes a person who is a resident of this state at the time a cause of action arises and who subsequently moves to another jurisdiction.'' General Statutes § 52-278j (a) provides: 'If an application for a prejudgment remedy is granted but the plaintiff, within thirty days thereof, does not serve and return to court the writ, summons and complaint for which the prejudgment remedy was allowed, the court shall dismiss the prejudgment remedy.'' The court recognized that a motion to dismiss is not the proper procedural vehicle to challenge the application of § 52-592. See LaBow v. LaBow , 85 Conn. App. 746, 750, 858 A.2d 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005). It explained, however, that because the parties agreed to the court's determination of the issue via the motion to dismiss, the court is permitted to do so. See Capers v. Lee , 239 Conn. 265, 269-270 n.9, 684 A.2d 696 (1996) (if use of motion to dismiss to challenge applicability of § 52-592 not challenged by party, court may use this procedural vehicle).

12493439

Donald FIELDS v. COMMISSIONER OF CORRECTION

Fields v. Comm'r of Corr.

2018-02-06

AC 39674

638

645

180 A.3d 638

180

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.942366+00:00

Fastcase

Donald FIELDS v. COMMISSIONER OF CORRECTION

Donald FIELDS v. COMMISSIONER OF CORRECTION AC 39674 Appellate Court of Connecticut. Argued November 13, 2017 Officially released February 6, 2018 Stephen A. Lebedevitch, assigned counsel, for the appellant (petitioner). Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva B. Lenczewski, supervisory assistant state's attorney, for the appellee (respondent). Lavine, Sheldon and Harper, Js.

3224

20340

HARPER, J. The petitioner, Donald Fields, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus, in which he collaterally challenged his thirty year sentence for felony murder on the ground of ineffective assistance of counsel. In his petition, the petitioner claimed that his trial counsel, John Paul Carroll, rendered ineffective assistance by failing to advise him before trial of the state's offer that he resolve the charges against him by pleading guilty to felony murder in exchange for a recommended sentence of twenty-five years to serve. The habeas court rejected that claim on the ground that, although Carroll had indeed rendered constitutionally deficient performance by failing to advise the petitioner of the state's twenty-five year plea offer, the petitioner had not been prejudiced by that deficient performance. Specifically, the court concluded that he had not proved, by a fair preponderance of the evidence, that he would have accepted the offer had Carroll conveyed it to him. On appeal, the petitioner claims that the habeas court erred in concluding that he had not been prejudiced by Carroll's constitutionally deficient performance because there was no evidence in the record tending to show that he would not have accepted the offer, and, thus, the court's finding to that effect was entirely speculative. Although we are troubled by the facts of this case concerning Carroll's deficient performance, we must keep in mind that, in assessing the habeas court's finding as to prejudice, "[i]t is simply not the role of this court on appeal to second-guess credibility determinations made by the habeas court." Noze v. Commissioner of Correction , 177 Conn. App. 874, 887, 173 A.3d 525 (2017). Accordingly, on the basis of the court's credibility based rejection of the petitioner's claim that he would have accepted the state's plea offer had it been conveyed to him, we affirm the judgment of the habeas court. The court's memorandum of decision sets forth the following relevant facts and procedural history. "The petitioner was convicted after a jury trial of felony murder in violation of General Statutes § 53a-54c, attempt to commit robbery in the first degree in violation of General Statutes § 53a-49 (a) (2) and 53a-134 (a) (1), and conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48 and 53a-134 (a) (2). The trial court sentenced the petitioner to thirty years in prison, followed by twenty years of special parole. The petitioner was represented before and during trial by . Carroll. "The petitioner appealed his convictions to the Supreme Court, which affirmed them. State v. Fields , 265 Conn. 184, 827 A.2d 690 (2003).... The petitioner was sixteen at the time of [the] crime and seventeen at the time of his trial. "The petitioner's sole claim was tried to the [habeas] court over two days. The court heard the testimony of three witnesses: State's Attorney John Davenport, the petitioner, and [Carroll]. The court also received as exhibits the transcripts from the petitioner's criminal trial and sentencing, the presentence investigation report . delivered to the court prior to sentencing, the mittimus reflecting the petitioner's sentence, and the Supreme Court's decision from the petitioner's appeal." (Footnote added.) At the habeas trial, the petitioner testified that he and Carroll never discussed a plea deal from the state, but that the offer of twenty-five years to serve was "something that [the petitioner] would have accepted." Throughout his cross-examination, the petitioner iterated that he never asked Carroll about pleading guilty, but that he did not know he could ask about making an offer. Moreover, in response to a question about whether the petitioner would have accepted responsibility in exchange for the plea offer of twenty-five years, the petitioner testified: "If I was offered a-a small amount of time . [o]r not a small amount of time, but somethin[g] and that was what I had to do . to get the time and accept responsibility, yeah, I would have. If I was offered the offer, I [would have done] that." On September 6, 2016, following trial, the court denied the petition for a writ of habeas corpus. The court concluded that, although the petitioner had proved that Carroll's performance was deficient, he had not proved that such deficient performance had caused him prejudice. In reaching that conclusion, the court first rejected the petitioner's testimony that he would have accepted the plea offer of twenty-five years to serve for felony murder. The court then specifically found that the petitioner would have rejected that plea offer had Carroll conveyed it to him. The court thereafter granted the petitioner's timely petition for certification to appeal. This appeal followed. "A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings.... This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.... It is axiomatic that the right to counsel is the right to the effective assistance of counsel.... "A claim of ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland v. Washington , [ 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) ]. Under Strickland , the petitioner has the burden of demonstrating that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defendant because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.... An ineffective assistance of counsel claim will succeed only if both prongs [of Strickland ] are satisfied.... It is axiomatic that courts may decide against a petitioner on either prong [of the Strickland test], whichever is easier." (Citations omitted; footnote omitted; internal quotation marks omitted.) Noze v. Commissioner of Correction , supra, 177 Conn. App. at 883-85, 173 A.3d 525. The sixth and fourteenth amendment right to the effective assistance of competent counsel is "a right that extends to the plea-bargaining process." Lafler v. Cooper , 566 U.S. 156, 162, 132 S.Ct. 1376, 182 L.Ed. 2d 398 (2012). In cases alleging ineffective assistance during the plea process, our Supreme Court has held that to prove the prejudice prong the petitioner "need establish only that (1) it is reasonably probable that, if not for counsel's deficient performance, the petitioner would have accepted the plea offer, and (2) the trial judge would have conditionally accepted the plea agreement if it had been presented to the court." Ebron v. Commissioner of Correction , 307 Conn. 342, 357, 53 A.3d 983 (2012), cert. denied sub nom. Arnone v. Ebron , 569 U.S. 913, 133 S.Ct. 1726, 185 L.Ed. 2d 802 (2013). Whether the court would have accepted the plea agreement is governed by an objective standard. Id., at 360, 53 A.3d 983 ; see also McMillion v. Commissioner of Correction , 151 Conn. App. 861, 872, 97 A.3d 32 (2014) ("determination of prejudice must be made by assessing whether a reasonable trial judge would have accepted the sentence" [internal quotation marks omitted] ). On appeal, the petitioner asserts that the court erred in determining that he would not have accepted the state's plea offer had Carroll conveyed it to him. The petitioner argues that the court's credibility determination, rejecting his testimony that he would have accepted the plea had Carroll conveyed it to him, is closely intertwined with its affirmative finding that the petitioner would have rejected the plea offer. He further contends that the affirmative finding is based on pure speculation, as there is no evidence in the record to support it, and thus it is clearly erroneous. The respondent, the Commissioner of Correction, asserts that, after rejecting the petitioner's testimony that he would have accepted the plea offer had Carroll conveyed it to him, the court properly concluded that the petitioner failed to prove the prejudice prong of the Strickland test. We disagree with the petitioner's argument that the court's affirmative finding is inseparable from its credibility determination, which led it to reject his testimony that he would have accepted the plea offer. We thus agree with the respondent that, on the basis of the court's credibility determination, the court correctly determined that the petitioner had failed to prove the prejudice prong of the Strickland test. "The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given their testimony.... Questions of whether to believe or to disbelieve a competent witness are beyond our review." (Citation omitted; internal quotation marks omitted.) Cole v. Commissioner of Correction , 126 Conn. App. 775, 779, 12 A.3d 1065, cert. denied, 300 Conn. 937, 17 A.3d 473 (2011). "The [ultimate] conclusions reached by the [habeas] court in its decision [on a] habeas petition are matters of law, subject to plenary review.... [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . and whether they find support in the facts that appear in the record.... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous.... [A] finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... A reviewing court ordinarily will afford deference to those credibility determinations made by the habeas court on the basis of [the] firsthand observation of [a witness'] conduct, demeanor and attitude." (Internal quotation marks omitted.) Noze v. Commissioner of Correction , supra, 177 Conn. App. at 885-86, 173 A.3d 525. We conclude that the court's credibility determination is distinct from its affirmative finding that the petitioner would have rejected the plea offer for the five reasons detailed in the memorandum of decision. Our reading of the memorandum of decision indicates that the court first rejected the petitioner's testimony that he would have accepted the offer for the following reasons: (1) it was self-serving; (2) it was the only evidence in the record that the petitioner would have accepted the offer; and (3) because what the petitioner would do at the time of the hearing, knowing the outcome of his trial, was different from what he would have done at the time of his sentencing. This was sufficient to support the court's determination that the petitioner had not established prejudice. A review of the record shows no evidence independent of the petitioner's own testimony that he would have accepted the state's plea offer had Carroll conveyed it to him. In fact, his testimony on that issue was at most equivocal. For example, in response to the court's question on that subject, he testified that if Carroll had explained the maximum penalties he was facing, he thought that he would have "ended up takin[g] the twenty-five [years] rather than . go to trial." Because, to reiterate, "[i]t is simply not the role of this court on appeal to second-guess credibility determinations made by the habeas court"; Noze v. Commissioner of Correction , supra, 177 Conn. App. at 887, 173 A.3d 525 ; we conclude that the court properly found that the petitioner did not establish a reasonable probability that, had Carroll conveyed the offer, the petitioner would have accepted it. Thus, the court correctly determined that the petitioner failed to meet the prejudice prong of the Strickland test. The judgment is affirmed. In this opinion the other judges concurred. The petitioner was sixteen at the time of the crime and seventeen at the time of trial and sentencing. He had never been prosecuted in the adult justice system before; his only experience was in juvenile court. The petitioner was facing a potential sentence of 100 years of imprisonment, and Carroll deprived him of an opportunity to consider a plea offer of twenty-five years of imprisonment. Despite Carroll's deficient performance, we cannot provide a remedy to the petitioner, as the habeas court discredited the petitioner's testimony that he would have accepted the plea offer had Carroll presented it to him, in part because of the petitioner's self-interest in having his sentence reduced. "Since Chapman v. California , 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed. 2d 705 (1967), the United States Supreme Court has repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.... Despite the strong interests that support the harmless-error doctrine, the [c]ourt in Chapman recognized that some constitutional errors require reversal without regard to the evidence in the particular case.... Errors that are not subject to harmless error analysis go to the fundamental fairness of the trial.... Structural [error] cases defy analysis by harmless error standards because the entire conduct of the trial, from beginning to end, is obviously affected.... Put another way, these errors deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . and no criminal punishment may be regarded as fundamentally fair." (Citations omitted; internal quotation marks omitted.) State v. Brown , 279 Conn. 493, 504-505, 903 A.2d 169 (2006). "It is only for certain structural errors undermining the fairness of a criminal proceeding as a whole that even preserved error requires reversal without regard to the mistake's effect on the proceeding." United States v. Dominguez Benitez , 542 U.S. 74, 81, 124 S.Ct. 2333, 159 L.Ed. 2d 157 (2004). The circumstances of this case leave us questioning whether this case presents something akin to a structural error. If Carroll had presented the petitioner with the plea offer, there may have been no need for the trial at all. Throughout Carroll's testimony, he iterated that he had only "some vague recollections of the case." In fact, Carroll testified that he could not recall the details of the plea offer or whether an offer was even made. Specifically, Carroll testified that he had "no independent recollection . of any offer being made" and that he did not recall whether the petitioner was interested in pleading guilty or otherwise disposing of the case without a trial. Carroll explained that he tries not to influence his clients one way or another regarding whether to accept a plea offer or go to trial, but that he thought that he had a "workable defense for the petitioner." When asked whether he explained to the petitioner the "charges, the elements, [and] the proceedings that [the petitioner] could anticipate," however, Carroll testified, "I would have to assume I did. Once again, I don't have any independent recollection of it." In its memorandum of decision, the court explained that "the petitioner has not proven by a preponderance of the evidence that he would have accepted the state's offer had it been conveyed to him. The only evidence supporting the petitioner's claim is the petitioner's testimony. The court puts little weight in that testimony because of the petitioner's obvious self-interest in having his sentence reduced. In addition, while the petitioner, now over thirty years old, might be inclined to accept a twenty-five year sentence knowing the outcome of the trial, that is a far cry from what he would have thought as a seventeen year old prior to trial." The court detailed the following five reasons to support its affirmative finding that the petitioner would have rejected the plea offer: "First, the petitioner had every reason to believe that while he was exposed to a potential life sentence, any sentence he would receive, if convicted, would be towards the lower end of the sentencing range. He was not the shooter and had cooperated with police by telling them what happened. In fact, [Davenport] stated at the petitioner's sentencing that until he saw the petitioner's [presentence investigation report] he thought the petitioner's involvement warranted a sentence close to the minimum of twenty-five years. "Second, [Carroll] advised the petitioner that the case was winnable. Thus, the petitioner, as a seventeen year old, would have had to weigh a certain twenty-five year sentence against the possibility of an acquittal and a likely slightly longer sentence if convicted. The court concludes that under those circumstances the petitioner would have likely rejected the state's offer. "Third, the petitioner was not new to the criminal justice system. In addition to the charges on which he was convicted, he had two other pending charges, which the state nolled after the petitioner was sentenced. He also had an extensive juvenile [criminal] history including twelve separate dispositions between 1997 and 1999. Given his experience, it is unfathomable that he did not understand that plea negotiations regularly take place in criminal matters. Consequently, his testimony that he did not know he could ask his attorney if the state was willing to make an offer was not credible. His admitted failure to ask [Carroll] about a plea offer only buttresses the court's conclusion that he was not interested in pleading guilty. "Fourth, while incarcerated pending trial, the petitioner received a number of disciplinary tickets for fighting, giving false information, disorderly conduct, causing a disruption, and disobeying a direct order. Knowing that such conduct would reflect badly on him if convicted, the fact that the petitioner engaged in it nonetheless shows a lack of judgment that would have led him to reject an offer from the state, even if it was in his best interest to accept it. "Finally, even when given an opportunity at sentencing to take some responsibility for his actions and thereby do himself some good with the court, the petitioner elected not to do so. The court all but pleaded with the petitioner to say something, but the petitioner chose to remain silent. Such a position is inconsistent with the petitioner's claim that he would have willingly pleaded guilty, accepted responsibility for his role in the crimes, and agreed to a sentence of twenty-five years to serve." The respondent maintains that the court's affirmative finding is not clearly erroneous, but argues that it is distinct from the court's credibility determination. Therefore, we interpret the respondent's argument to be that on the basis of the court's credibility determination alone, we must affirm the judgment, regardless of what we conclude regarding the affirmative finding. Our conclusion is based on the court's credibility determination and the reasons provided to support it, specifically, that the petitioner's testimony is the only evidence in the record supporting his claim, the petitioner's testimony is self-serving, and what the petitioner would do now is different from what the petitioner would have done at the time of his sentencing. Because the court's rejection of the petitioner's testimony, and its rationale for doing so, are sufficient to resolve this appeal, we need not decide the viability of the court's affirmative finding and the five reasons detailed to support it.

12504620

Peter BORIA v. COMMISSIONER OF CORRECTION

Boria v. Comm'r of Corr.

2018-12-04

AC 39715

1127

1148

199 A.3d 1127

199

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:42.438369+00:00

Fastcase

Peter BORIA v. COMMISSIONER OF CORRECTION

Peter BORIA v. COMMISSIONER OF CORRECTION AC 39715 Appellate Court of Connecticut. Argued September 14, 2018 Officially released December 4, 2018 Nicholas A. Marolda, assigned counsel, with whom, on the brief, was Temmy Ann Miller, assigned counsel, for the appellant (petitioner). Kathryn W. Bare, assistant state's attorney, and Stephen R. Finucane, assistant attorney general, with whom, on the brief, was Maureen Platt, state's attorney, for the appellee (respondent). Prescott, Moll and Bishop, Js.

11384

70459

PRESCOTT, J. The petitioner, Peter Boria, appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court dismissing his petition for a writ of habeas corpus pursuant to Practice Book § 23-29. The petitioner claims that the habeas court improperly dismissed his claim (1) that amendments to the risk reduction earned credits statute in 2013 and 2015 violated the ex post facto clause of the United States constitution and (2) that his right to due process had been violated because his guilty plea in his underlying criminal case was not knowingly and voluntarily made. As to the first claim, we disagree and, accordingly, affirm that aspect of the judgment of the habeas court. As to the second claim, although we agree with the petitioner that the habeas court should not have dismissed that claim as an improper successive petition under Practice Book § 23-29, we affirm that aspect of the judgment on the alternative ground that it was barred by collateral estoppel. The following undisputed facts and procedural history are relevant to our resolution of this appeal. The petitioner currently is serving a sentence of twenty years of incarceration after pleading guilty on October 6, 2009, to the charges of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and to being a persistent dangerous felony offender in violation of General Statutes § 53a-40. On July 18, 2011, the petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of trial counsel in violation of the sixth and fourteenth amendments to the United States constitution (first petition). Among other things, the first petition specifically alleged that, prior to his election to plead guilty, "[d]efense counsel failed to inform the petitioner of the applicable [charges] against him," including that the petitioner was being charged as a persistent dangerous felony offender. On July 13, 2013, the habeas court issued an oral ruling denying the first petition, and the petitioner did not appeal therefrom. On February 8, 2016, the petitioner filed two additional habeas petitions. One petition, docketed as TSR-CV-16-4007851-S (second petition), was filed pro se and sought the restoration of good time credits that the petitioner claimed he was eligible for and had been receiving. The habeas court, Oliver, J. , dismissed the second petition for lack of jurisdiction pursuant to Practice Book § 23-24 (a) (1). The petitioner filed a petition for certification to appeal, which was granted by the habeas court. The petitioner's appeal from the dismissal of the second petition was heard alongside this appeal, and the judgment of the habeas court was summarily affirmed by this court in a memorandum decision (AC 39028). The other petition was docketed as TSR-CV-16-4008315-S (third petition), and it is that petition that underlies the present appeal. In the third petition, the petitioner raised several claims, including an ex post facto challenge to legislative amendments to the risk reduction earned credit statutes and that his guilty plea was not voluntarily made. The risk reduction earned credit statutes provide that certain prisoners convicted of crimes committed after October 1, 1994, "may be eligible to earn risk reduction credit toward a reduction of such person's sentence, in an amount not to exceed five days per month, at the discretion of the Commissioner of Correction" for certain positive behaviors while incarcerated. General Statutes § 18-98e (a). Number 13-3, § 59, of the 2013 Public Acts, effective July 1, 2013, eliminated statutory language that previously permitted a prisoner's parole eligibility date to be advanced by the application of risk reduction earned credits. Number 15-216, § 9, of the 2015 Public Acts, effective October 1, 2015, amended General Statutes § 18-98e to exclude inmates convicted of being a persistent dangerous felony offender from earning risk reduction credits. On September 7, 2016, the habeas court, Oliver , J., sua sponte dismissed the third petition pursuant to Practice Book § 23-29. With respect to the petitioner's ex post facto claim regarding risk reduction earned credits, the court dismissed that claim for lack of jurisdiction because it concluded that there was no cognizable liberty interest in such credits. See Practice Book § 23-29 (1). Additionally, the habeas court dismissed the petitioner's challenge to the voluntariness of his guilty plea as an improper successive claim. See Practice Book § 23-29 (3). Regarding that claim, the court stated in its judgment of dismissal that "the instant petition presents the same ground as a prior petition previously denied (TSR-CV-11-4004269-S) and fails to state new facts or proof of new evidence reasonably available at the time of the prior petition." The habeas court also concluded that, in a prior habeas proceeding, the habeas court found that the "petitioner was made aware of his persistent felony offender status and the prosecuting authority's filing of a 'part B' information." The court granted certification to appeal, and this appeal followed. We begin by setting forth our standard of review for a challenge to the dismissal of a petition for a writ of habeas corpus. "The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review.... [If] the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . and whether they find support in the facts that appear in the record.... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous." (Citation omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction , 168 Conn. App. 294, 301-302, 145 A.3d 416, cert. denied, 323 Conn. 937, 151 A.3d 385 (2016). I We first address the petitioner's claim that the habeas court improperly dismissed that portion of the third petition alleging an ex post facto violation regarding statutory amendments to the earned risk reduction credit program. There are two aspects to this claim. The petitioner argues that the court improperly (1) failed to hold a hearing before dismissing the petition, and (2) dismissed the claim for lack of jurisdiction. We are not persuaded by the petitioner's contentions. A The petitioner first argues that the habeas court improperly dismissed the third petition on its own motion without holding a hearing. Specifically, the petitioner argues that the court's failure to hold a hearing on the third petition violated Practice Book § 23-40 and deprived him of his right to such a hearing under Mercer v. Commissioner of Correction , 230 Conn. 88, 644 A.2d 340 (1994), General Statutes § 52-470, and Practice Book § 23-29. We disagree that a hearing was required in this case. Whether the habeas court was required to hold a hearing prior to dismissing a habeas petition presents a question of law subject to plenary review. Green v. Commissioner of Correction , 184 Conn. App. 76, 82, 194 A.3d 857, cert. denied, 330 Conn. 933, 195 A.3d 383 (2018). "Pursuant to Practice Book § 23-29, the habeas court may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . (1) the court lacks jurisdiction ." (Internal quotation marks omitted.) Holliday v. Commissioner of Correction , 184 Conn. App. 228, 234, 194 A.3d 867 (2018) ; see also Gilchrist v. Commissioner of Correction , 180 Conn. App. 56, 182 A.3d 690 (habeas court had no obligation to conduct hearing before dismissing petition pursuant to Practice Book § 23-29 ), cert. granted, 329 Conn. 908, 186 A.3d 13 (2018). In Holliday , the petitioner filed a petition for a writ of habeas corpus in which he alleged that legislative changes to the risk reduction earned credit statute violated the ex post facto clause of the United States constitution. Holliday v. Commissioner of Correction , supra, 184 Conn. App. at 232, 194 A.3d 867. The habeas court dismissed the petition pursuant to Practice Book § 23-29, and the petitioner appealed from the judgment claiming that the court erred in dismissing his petition (1) for lack of jurisdiction and (2) without notice or a hearing. Id., at 230, 194 A.3d 867. This court held that, for purposes of the habeas court's subject matter jurisdiction, which is predicated on the deprivation of a recognized liberty interest, there is no liberty interest in the application of risk reduction earned credit toward an inmate's parole eligibility. Id., at 233-34, 194 A.3d 867. Additionally, this court held that the habeas court was not required to provide notice or a hearing before dismissing the petition. Id., at 236, 194 A.3d 867. Although, under Practice Book § 23-40, "[h]abeas petitioners generally have the right to be present at any evidentiary hearing and at any hearing or oral argument on a question of law which may be dispositive of the case . Practice Book § 23-40 speaks only to the petitioner's right to be present at an evidentiary hearing when such a hearing is held. Such hearings are not always required, as Practice Book § 23-29 authorizes the court to dismiss a habeas petition on its own motion. . "[A] petitioner's right to a hearing before a habeas court is not absolute.... [T]his court [has] held that the habeas court acted properly in dismissing a habeas petition pursuant to Practice Book § 23-29 without first holding a hearing because it could be determined from a review of the petition [that] the petitioner had not satisfied his obligation to allege sufficient facts in his pleading to establish jurisdiction." (Citations omitted; footnote omitted; internal quotation marks omitted.) Holliday v. Commissioner of Correction , supra, 184 Conn. App. at 236-37, 194 A.3d 867. Here, as in Holliday , the habeas court could determine from a review of the third petition that the petitioner had failed to allege sufficient facts to establish jurisdiction. The third petition alleged only the deprivation of risk reduction earned credit, which our Supreme Court and this court have held is insufficient to invoke the habeas court's jurisdiction. See Perez v. Commissioner of Correction , 326 Conn. 357, 373-74, 163 A.3d 597 (2017) ; Holliday v. Commissioner of Correction , supra, at 237-38, 194 A.3d 867. Therefore, in light of binding precedent establishing the habeas court's lack of subject matter jurisdiction, we find that the habeas court was not obligated to grant the petitioner a hearing before dismissing the petition and acted properly in dismissing this portion of the third petition. B The petitioner next argues that the habeas court improperly dismissed for lack of jurisdiction that portion of the third petition alleging an ex post facto violation regarding statutory amendments to the earned risk reduction credit program. Although the petitioner recognizes that ordinarily the habeas court's subject matter jurisdiction is predicated on the deprivation of a recognized liberty interest, the petitioner argues that "no liberty interest is required for the petitioner to raise a cognizable ex post facto claim," and that being excluded from earning risk reduction credits guarantees that the petitioner will be incarcerated longer, violating the ex post facto clause. We disagree. The following additional facts are relevant to this claim. In 2011, while the petitioner was incarcerated, the legislature enacted General Statutes § 18-98e. Section 18-98e authorizes the Commissioner of Correction to award, in his or her discretion, risk reduction earned credits. The risk reduction earned credit program allows an eligible convicted prisoner to earn credit toward a reduction of his or her sentence. In 2015, the General Assembly amended § 18-98e, rendering persistent dangerous felony offenders, such as the petitioner, ineligible to earn risk reduction credits. See Public Acts 2015, No. 15-216, § 9 (a). We turn to our standard of review and applicable legal principles for this claim. "It is well settled that [a] determination regarding a trial court's subject matter jurisdiction is a question of law and, therefore, we employ the plenary standard of review and decide whether the court's conclusions are legally and logically correct and supported by the facts in the record." (Internal quotation marks omitted.) Petaway v. Commissioner of Correction , 160 Conn. App. 727, 731, 125 A.3d 1053 (2015), cert. dismissed, 324 Conn. 912, 153 A.3d 1288 (2017). "With respect to the habeas court's jurisdiction, [t]he scope of relief available through a petition for habeas corpus is limited. In order to invoke the trial court's subject matter jurisdiction in a habeas action, a petitioner must allege that he is illegally confined or has been deprived of his liberty.... In other words, a petitioner must allege an interest sufficient to give rise to habeas relief.... In order to . qualify as a constitutionally protected liberty [interest] . the interest must be one that is assured either by statute, judicial decree, or regulation." (Citations omitted; internal quotation marks omitted.) Green v. Commissioner of Correction , supra, 184 Conn. App. at 85, 194 A.3d 857. Our Supreme Court and this court have held that there is no liberty interest in the application of risk reduction eligibility credit toward an inmate's parole eligibility. Perez v. Commissioner of Correction , supra, 326 Conn. at 371, 163 A.3d 597 ; Green v. Commissioner of Correction , supra, at 85, 194 A.3d 857. In the present case, the petitioner argues that "[t]he court's basis for concluding that it lacked jurisdiction-that there [is] no recognized liberty interest in parole eligibility . cannot support the court's dismissal." (Internal quotation marks omitted.) The petitioner states that "parole eligibility is irrelevant" and that the statutory changes at issue "do not affect when the petitioner will become eligible for parole" but rather, "they affect only his end of sentence date." In other words, the petitioner attempts to draw a distinction between circumstances in which the loss of risk reduction credit affects a prisoner's end of sentence date from those in which it affects a prisoner's parole eligibility date. Specifically, the petitioner argues that "by excluding [him] from the opportunity to earn [risk reduction credits] . the probability that his sentence will increase, and that he will be incarcerated longer . is guaranteed," and that this is a violation of the ex post facto clause. "Pursuant to § 18-98e... an inmate is not guaranteed a certain amount of risk reduction credits per month-or, in fact, any credits at all." Green v. Commissioner of Correction , supra, 184 Conn. App. at 86, 194 A.3d 857. As we stated in Green , "[t]he fact that the commissioner is vested with such broad discretion in implementing the [risk reduction earned credit] program is significant. Our appellate courts have concluded, consistently, that an inmate does not have a constitutionally protected liberty interest in certain benefits-such as good time credits, risk reduction credits, and early parole consideration-if the statutory scheme pursuant to which the commissioner is authorized to award those benefits is discretionary in nature." Id., at 86-87, 194 A.3d 857. "[T]he plain language of § 18-98e (a)... provides that an inmate may be eligible to earn risk reduction credit at the discretion of the [respondent] . [who] may, in his or her discretion, cause the loss of all or a portion of such earned risk reduction credit for any act of misconduct or insubordination or refusal to conform to recommended programs or activities or institutional rules occurring at any time during the service of the sentence or for other good cause. Although the legislature has provided guidance to the respondent as to how to exercise his discretion, the respondent still has broad discretion to award or revoke risk reduction credit. As such, the statute does not support an expectation that an inmate will automatically earn risk reduction credit or will necessarily retain such credit once it has been awarded." (Citations omitted; internal quotation marks omitted.) Perez v. Commissioner of Correction , supra, 326 Conn. at 372, 163 A.3d 597. Like parole eligibility, there is no cognizable liberty interest in earning risk reduction credits in order to obtain an earlier end of sentence date. In Green , we held that, although the petitioner argued that the loss of risk reduction credit "[bore] directly on the duration of his sentence," the court did not have jurisdiction over the claim. Green v. Commissioner of Correction , supra, 184 Conn. App. at 84, 194 A.3d 857. Moreover, the claim fails to implicate the ex post facto clause. The traditional approach in determining whether a colorable ex post facto claim exists requires us to compare the statute that was in effect at the time of the petitioner's offense to the challenged statute. See Perez v. Commissioner of Correction , supra, 326 Conn. at 378-80, 163 A.3d 597. In the present case, the petitioner committed the robbery underlying his conviction in 2009, prior to the enactment of the risk reduction earned credits statutes. Therefore, the statutory amendment excluding persistent dangerous felony offenders for risk reduction earned credit eligibility simply put the petitioner in the same position that he was in when he committed the offense for which he was sentenced. The fact that the claimed liberty interest in the present matter pertains to the petitioner's maximum release date, rather than his date of parole eligibility, is immaterial because the sentence that the petitioner received based on the statutory scheme in effect at the time he committed the offense has not been changed. No ex post facto violation occurred, and no cognizable liberty interest is implicated by the petitioner's loss of risk reduction earned credits. Accordingly, the habeas court properly dismissed this portion of the third petition. II We next address the petitioner's claim that the habeas court improperly dismissed that portion of the third petition alleging that his guilty plea was not voluntary on the ground that the claim constituted an improper successive petition pursuant to Practice Book § 23-29 (3). Specifically, the petitioner argues that the third petition presents new grounds that were neither raised in the first petition nor litigated at the habeas trial in that case. According to the petitioner, because the first petition alleged ineffective assistance of counsel, and not a freestanding due process claim challenging the voluntariness of his plea, the claim raised in the third petition was not improperly successive. Although the respondent, the Commissioner of Correction (commissioner), concedes that the habeas court improperly dismissed the third petition for being improperly successive, it contends that the judgment of dismissal nonetheless should be affirmed because the factual basis for the petitioner's claim was fully and fairly litigated and decided adversely to him in the first habeas action. We agree with the commissioner and, therefore, affirm the habeas court's judgment dismissing this count on the alternative ground that the claim is barred by collateral estoppel. We begin our analysis by reviewing the doctrines of res judicata and collateral estoppel in habeas corpus proceedings. Pursuant to Practice Book § 23-29, "[i]f a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing." (Footnote omitted; internal quotation marks omitted.) Zollo v. Commissioner of Correction , 133 Conn. App. 266, 277, 35 A.3d 337, cert. granted, 304 Conn. 910, 39 A.3d 1120 (2012) (appeal dismissed May 1, 2013). "[A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief.... But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition." (Emphasis omitted; internal quotation marks omitted.) Id., at 278, 35 A.3d 337. "Our courts have repeatedly applied the doctrine of res judicata to claims duplicated in successive habeas petitions filed by the same petitioner.... In fact, the ability to dismiss a petition [if] it presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition is memorialized in Practice Book § 23-29 (3)." (Citations omitted; internal quotation marks omitted.) Diaz v. Commissioner of Correction , 125 Conn. App. 57, 64-65, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011). "[T]he application of the doctrine of res judicata is limited in habeas actions to claims that actually have been raised and litigated in an earlier proceeding." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction , supra, 168 Conn. App. at 310, 145 A.3d 416. This court has held that "the principle of claim preclusion applie[s] when identical claims [are] argued on direct appeal and habeas review." (Emphasis omitted.) Diaz v. Commissioner of Correction , supra, 125 Conn. App. at 66, 6 A.3d 213. The first petition and the third petition do not present identical claims. The first petition asserted a claim of ineffective assistance of counsel. The third petition asserts a freestanding due process claim that the petitioner's plea was involuntary. Therefore, the habeas court in the present case, as the commissioner concedes, incorrectly concluded that the petitioner's claim involving the voluntariness of his plea was an improper successive claim because it was precluded by the doctrine of res judicata. Simply put, the petitioner had not raised the instant claim in any of the prior habeas petitions. We nonetheless agree with the commissioner that we should affirm the habeas court's judgment on the alternative ground of collateral estoppel. "Under [ Practice Book § 23-29 (5) ], the court may dismiss [a habeas] petition or any count thereof if it determines that any other legally sufficient ground for dismissal of the petition exists." (Internal quotation marks omitted.) Mozell v. Commissioner of Correction , 147 Conn. App. 748, 758 n.8, 83 A.3d 1174, cert. denied, 311 Conn. 928, 86 A.3d 1057 (2014). "The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality.... Collateral estoppel . is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim.... For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.... An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined.... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.... [C]ollateral estoppel [is] based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.... Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest." (Citation omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction , supra, 168 Conn. App. at 310-11, 145 A.3d 416. We previously have affirmed judgments of the habeas court on the alternative ground of collateral estoppel. In Johnson , the petitioner alleged that his third habeas counsel was ineffective because she did not raise the issue of whether trial counsel was ineffective for failing to file a motion for a competency evaluation. Id., at 308, 145 A.3d 416. The habeas court dismissed the claim as an improper successive claim under the doctrine of res judicata. Id. This court held that the claim was dismissed on improper grounds because the petitioner had not raised the identical claim in any of his prior habeas petitions. Id., at 309, 145 A.3d 416. This court, however, affirmed the dismissal of the petitioner's claim on the alternative ground of collateral estoppel under Practice Book § 23-29 (5). Id., at 312, 145 A.3d 416. We agree with the commissioner that the central factual allegation necessary to sustain the petitioner's claim of an involuntary plea was fully and fairly litigated and decided adversely to the petitioner in the first habeas action. In the first petition, the petitioner set forth a claim of ineffective assistance of counsel premised on an allegation that his counsel failed to inform him of the applicable charges against him. In adjudicating that claim of ineffective assistance of counsel, the first habeas court was required to decide whether his defense counsel had failed to inform him of all of the charges, including the persistent dangerous felony offender charge. In the third petition, the petitioner claims that his plea was involuntary because he was not aware that he was pleading guilty to being a persistent dangerous felony offender. Therefore, although the first and third petitions present different claims, they are predicated on the same underlying factual allegation, namely, that the petitioner was not aware of the charges pending against him. The claim presented in the third petition depends on this factual allegation, which was fully and fairly litigated in the previous habeas proceeding and was decided adversely to him in that case by the habeas court. Specifically, in its memorandum of decision denying the first habeas petition, the habeas court, Newson, J. , found that counsel credibly testified that the petitioner was informed that he was being charged as a persistent dangerous felony offender. The memorandum of decision stated that the court credited defense counsel's testimony that defense counsel had properly discussed and advised the petitioner of the facts and circumstances of the case. The court found that the petitioner had admitted that he understood the fact that he was facing a part B information as a persistent dangerous felony offender and that he was exposed to a sixty year sentence. Further, Judge Newson stated, "[a]nd so again, the substance and the length of the visits is not necessarily a correlation to the quality or the information that's delivered in those visits and the court credits counsel's testimony that the petitioner was aware. Additionally, there's a plea canvass which the petitioner appears to have made it through without any significant issues, any questions, any lack of understanding, and the law indicates that the court is allowed to rely on those answers and responses as credible and accurate when given. And when an individual is asked if he or she has any questions or lacks any understanding during the plea canvass and can answer that in the negative, then the court is allowed to accept that as accurate and truthful when given and that again presents issues when a petitioner later comes in a habeas and claims that he did not or does not understand." Finally, the court stated, "[a]nd again, so the record is clear . I found in general that counsel appeared to be competent and knowledgeable . I credit her testimony that she provided the petitioner with all of the information necessary for him to make a knowing, intelligent, and voluntary guilty plea ." (Emphasis added.) Therefore, whether the petitioner entered his plea knowing that he was pleading guilty to being a persistent dangerous felony offender was a fact that was fairly litigated and actually decided by the habeas court. Because the habeas court necessarily decided adversely to the petitioner the underlying issue of whether he knew that he was pleading guilty to being a persistent dangerous felony offender in a previous habeas hearing, the petitioner is precluded by collateral estoppel from litigating the same issue in regard to his claim of an involuntary plea. The habeas court thus properly dismissed the third petition pursuant to Practice Book § 23-29. The judgment is affirmed. In this opinion MOLL, J., concurred. Practice Book § 23-29 provides: "The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that: "(1) the court lacks jurisdiction; "(2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted; "(3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition; "(4) the claims asserted in the petition are moot or premature; "(5) any other legally sufficient ground for dismissal of the petition exists." The constitution of the United States, article one, § 10, provides in relevant part: "No State shall . pass any . ex post facto Law ." "[I]t is axiomatic that [w]e may affirm a proper result of the trial court for a different reason." (Internal quotation marks omitted.) Coleman v. Commissioner of Correction , 111 Conn. App. 138, 140 n.1, 958 A.2d 790 (2008), cert. denied, 290 Conn. 905, 962 A.2d 793 (2009). Practice Book § 23-24 (a) provides in relevant part: "The judicial authority shall promptly review any petition for a writ of habeas corpus to determine whether the writ should issue. The judicial authority shall issue the writ unless it appears that: "(1) the court lacks jurisdiction ." The petitioner, through appellate counsel, filed a motion for rectification and articulation asking the habeas court to articulate the legal and factual bases for its dismissal of the second petition, including, "what the [c]ourt understands the petitioner's claim(s) to be." The habeas court denied the motion for articulation and rectification, and the petitioner filed a motion for review of the habeas court's denial of that motion. This court granted the motion for review but denied the relief requested therein. Although the second petition appears to have significant overlap with the first claim of the underlying petition in the present appeal, the respondent, the Commissioner of Correction, did not move for the habeas court to dismiss the claim under the prior pending action doctrine; see Gainey v. Commissioner of Correction , 181 Conn. App. 377, 380 n.5, 186 A.3d 784 (2018) ; or for being an improper successive petition. Public Acts 2013, No. 13-3, § 59, amended subsections (b) (2), (c) and (e) of General Statutes § 54-125a to delete provisions permitting the reduction of time off of a prisoner's parole eligibility date for risk reduction credit earned under § 18-98e. For purposes of clarity, we address these claims in a different order than they were presented by the petitioner in his principal appellate brief. As we indicated in Holliday , "we urge the habeas court to exercise [the] authority [to dispose of a petition without a hearing] sparingly and limit its use to those instances in which it is plain and obvious that the court lacks jurisdiction over the habeas petition." (Internal quotation marks omitted.) Holliday v. Commissioner of Correction , supra, 184 Conn. App. at 237, 194 A.3d 867. Although the analysis contained in Judge Bishop's concurrence has some appeal, we note that our Supreme Court has granted the petition for certification to appeal from this court's decision in Gilchrist v. Commissioner of Correction , supra, 180 Conn. App. 56, 182 A.3d 690, in order to decide whether a habeas petition may be disposed of pursuant to Practice Book § 23-29 by the habeas court without a hearing. Under these circumstances, and in light of the fact that we are bound by Holliday , we believe it is more prudent not to weigh in further with respect to this issue. "That the court relied on a wrong theory does not render the judgment erroneous. We can sustain a right decision although it may have been placed on a wrong ground." (Internal quotation marks omitted.) Tyson v. Commissioner of Correction , 155 Conn. App. 96, 105 n.4, 109 A.3d 510, cert. denied, 315 Conn. 931, 110 A.3d 432 (2015). In Johnson , we stated that "[t]o establish that third habeas counsel was ineffective for failing to allege a claim that trial counsel was ineffective for failing to move for a competency evaluation, the petitioner would be required to prove that trial counsel was ineffective for failing to move for a competency evaluation. This already was decided, after a full evidentiary hearing, by the fifth habeas court ." Johnson v. Commissioner of Correction , supra, 168 Conn. App. at 311-12, 145 A.3d 416. Therefore, the petitioner's claim involving third habeas counsel "[was] barred by collateral estoppel because litigation of that claim necessarily required relitigation of an issue that already [had] been fully and fairly decided in the fifth habeas action, specifically, whether trial counsel was ineffective for failing to move for a competency evaluation;" id., at 311, 145 A.3d 416 ; and an earlier habeas proceeding "necessarily resolved an issue that would need relitigation if the claim involving third habeas counsel were to proceed ." Id.

12504872

STATE of Connecticut v. Trajuan A. WASHINGTON

State v. Washington

2018-11-20

AC 40031

44

57

199 A.3d 44

199

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:42.438369+00:00

Fastcase

STATE of Connecticut v. Trajuan A. WASHINGTON

STATE of Connecticut v. Trajuan A. WASHINGTON AC 40031 Appellate Court of Connecticut. Argued September 7, 2018 Officially released November 20, 2018 Joseph A. Jaumann, assigned counsel, for the appellant (defendant). Brett R. Aiello, special deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anthony Bochicchio, senior assistant state's attorney, for the appellee (state). Lavine, Sheldon and Bright, Js.

6120

36924

SHELDON, J. The defendant, Trajuan A. Washington, appeals from the judgment of conviction that was rendered against him, upon the verdict of a jury in the Hartford Superior Court, on charges of conspiracy to commit home invasion in violation of General Statutes § 53a-48 and 53a-100aa (a) (2) and attempt to commit home invasion in violation of General Statutes § 53a-49 (a) (2) and 53a-100aa (a) (2). The defendant was tried under an amended information dated May 2, 2016, in which the state alleged, in relevant part, that on February 19, 2014 (1) he conspired to commit home invasion by agreeing with one or more persons to enter a dwelling at 33 Seyms Street in Hartford with the intent to commit a crime therein, while he was armed with a deadly weapon and another person not participating in the crime was actually present inside the dwelling, and (2) he attempted to commit home invasion by intentionally taking a substantial step in a course of conduct planned to culminate in the commission of home invasion, while acting with the mental state required for the commission of that offense. On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction of conspiracy to commit home invasion and attempt to commit home invasion, and (2) the trial court erred in instructing the jury on a common essential element of conspiracy to commit home invasion and attempt to commit home invasion by repeatedly substituting the word building for the term dwelling in its final instructions describing those offenses. We affirm the judgment of the trial court. The jury was presented with the following evidence upon which to base its verdict. On February 19, 2014, at approximately 8:33 a.m., officers of the Hartford Police Department were dispatched to 33 Seyms Street in Hartford to investigate a report of shots fired at that location. Officer Dwayne Tine, a patrolman, was the first officer to arrive at the scene. Upon his arrival, Tine secured the area and performed a preliminary investigation, during which he spoke with Tiffany and Julianna Moore, two sisters who lived on the first floor of the three story apartment building at that address. Sergeant Jason Lee, a detective with the crime scene division of the Hartford Police Department, arrived at the scene shortly thereafter. Upon his arrival, he searched the area and made two sets of findings of possible relevance to the shooting. First, he found two spent cartridge casings on the sidewalk in front of 39 Seyms Street, the building immediately to the west of 33 Seyms Street. Second, upon inspecting the front of the building at 33 Seyms Street, he found a bullet hole in the center of the front door, a "defect" that could have been caused by a bullet to the left of the number placard immediately to the right of the front door, and jacketing from a bullet in a hole between the brick wall and the wooden frame of the first floor apartment window to the left of the front door. Detective Mark Rostkowski of the Hartford Police Shooting Task Force also responded to the report of shots fired at 33 Seyms Street on the morning of February 19. While in the area, he recovered a surveillance video of the shooting that had been recorded by a camera installed on the adjacent building at 39 Seyms Street. A portion of the video, bearing a time stamp of 8:26 a.m., showed three men wearing hoodies walking down the sidewalk toward 39 Seyms Street from the direction of 33 Seyms Street when two of the men, apparently reacting to something off camera behind them, suddenly turned in that direction, raised handguns they had been carrying, and fired shots before running away further to the west. At the conclusion of their investigation on February 19, the police had no leads as to possible suspects in connection with the shooting. Police investigators got their first lead as to who might have perpetrated the shooting when, several weeks later, they received a tip from Jhllah Govan, who claimed to have witnessed the shooting through the window of the first floor apartment at 33 Seyms Street, where he was then living with his girlfriend, Julianna Moore, and her sister, Tiffany Moore. Govan reported that he had gone to the window that morning after hearing the apartment's front door slam and Tiffany cry out for help. When he did so, he reportedly saw three men walking away from the apartment building to his left when two of the men suddenly turned back toward the building and fired handguns in his direction. Govan identified one of the shooters as a man he had come to know as "Awack," with whom he had been incarcerated at the Hartford Correctional Center sometime after the shooting following his arrest on unrelated charges. Detective Rostkowski subsequently determined that Awack was an alias used by Shannon Davis of Hartford. Accordingly, police investigators showed Govan a photographic array that included Davis' photo, from which Govan identified Davis as one of the men who had fired shots toward 33 Seyms Street on the morning of February 19. When Rostkowski located Davis, he agreed to speak to detectives about the incident. In his meeting with detectives, Davis confessed to his involvement in the incident and identified the defendant as the other man who had fired shots toward the apartment building at 33 Seyms Street during the course of that incident. Davis was later arrested in connection with the incident and agreed to cooperate with the state. At the defendant's trial, Davis testified that he, the defendant and a third man he identified only as "Dough" went together to the apartment building at 33 Seyms Street on the morning of February 19, with the intent to break into the apartment of a man named "300" and steal a large sum of money from him. The defendant and Davis were both armed with handguns, which they had purchased together approximately one week before the incident. After driving together to 33 Seyms Street in Davis' car, the three men entered the front door of the building and walked to the door of a first floor apartment through an interior hallway. The defendant knocked on the apartment door, which had no peep hole in it, and identified himself to the apartment's occupants by the name of a person with whom he believed they were familiar. A female resident of the apartment answered the door and started to open it. When, however, she saw the three men standing before her wearing hoodies, she quickly closed the door. Although the defendant tried to catch the door before the woman could close it, she was able to slam it shut. The three men then left the apartment building and began to walk away to their left, in a westerly direction down Seyms Street, when two women in the first floor apartment began to taunt them from the apartment's front window. Shortly thereafter, an unidentified man came out the front door of the apartment building. Believing that the unidentified man was carrying a weapon, Davis and the defendant turned toward him and fired shots at him with their handguns. No one was injured by the shots. Davis identified himself and the defendant in the video recording of the shooting that Detective Rostkowski had obtained from 39 Seyms Street as the two men who fired handguns in the direction of 33 Seyms Street before running away. After concluding its deliberations, the jury returned a guilty verdict on all charges, including conspiracy to commit home invasion, attempt to commit home invasion, conspiracy to commit robbery in the first degree, attempt to commit robbery in the first degree, and attempt to commit assault in the first degree. The defendant was later sentenced on those charges to a total effective term of forty years of incarceration, execution suspended after thirty years, and five years of probation. This appeal followed. Additional facts will be set forth as necessary. I CLAIMS OF EVIDENTIARY INSUFFICIENCY The defendant first claims that the evidence was insufficient to support his conviction of conspiracy to commit home invasion and attempt to commit home invasion. Specifically, he contends that evidence that he and his companions drove together to 33 Seyms Street while armed with loaded handguns with the intent to break in and steal money, that they attempted to gain entry to the apartment by tricking the residents to believe they were persons known to them, and that he tried to catch the door when the resident attempted to shut it, did not establish that he ever agreed with his companions to commit home invasion or that he intentionally took a substantial step in a course of conduct planned to culminate in the commission of that offense. For the following reasons, we disagree. "In reviewing a sufficiency of the evidence claim, 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 . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." (Internal quotation marks omitted.) State v. Allan , 311 Conn. 1, 25, 83 A.3d 326 (2014). In applying that test, "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. Stephen J. R. , 309 Conn. 586, 594, 72 A.3d 379 (2013). A Conspiracy to Commit Home Invasion "A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy." General Statutes § 53a-48 (a). "In proving the requisite element of agreement, [i]t is not necessary to establish that the defendant and his coconspirators signed papers, shook hands or uttered the words we have an agreement . Indeed, [b]ecause of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence.... [A] conspiracy can be inferred from the conduct of the accused." (Internal quotation marks omitted.) State v. Rosado , 134 Conn. App. 505, 511, 39 A.3d 1156, cert. denied, 305 Conn. 905, 44 A.3d 181 (2012). "[P]roof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense." (Internal quotation marks omitted.) State v. Padua , 273 Conn. 138, 167, 869 A.2d 192 (2005). General Statutes § 53a-100aa provides, in relevant part: "(a) A person is guilty of home invasion when such person enters . unlawfully in a dwelling, while a person other than a participant in the crime is actually present in such dwelling, with intent to commit a crime therein, and, in the course of committing the offense . (2) such person is armed with . a deadly weapon ." As used in that statute, the term " 'dwelling' means a building which is usually occupied by a person lodging therein at night, whether or not a person is actually present ." General Statutes § 53a-100 (a) (2). The term " '[d]eadly weapon' means any weapon, whether loaded or unloaded, from which a shot may be discharged ." General Statutes § 53a-3 (6). The term "enters [a dwelling] . unlawfully" means enters a dwelling "not open to the public and when the actor is not otherwise licensed or privilege to do so." General Statutes § 53a-100 (b). Reading the conspiracy and home invasion statutes together, in light of the foregoing definitions, the essential elements of conspiracy to commit home invasion are as follows: (1) the defendant agreed with one or more other persons to commit home invasion, to wit, to enter a dwelling without license or privilege to do so, with the intent to commit a crime therein, while he was armed with a weapon from which a shot could be discharged, and a person other than one of his coconspirators actually was present in the dwelling; (2) the defendant specifically intended to engage in conduct constituting the crime of home invasion, as previously defined; and (3) at least one of the coconspirators committed an overt act in pursuance of that conspiratorial agreement. The defendant first argues that the state's evidence was insufficient to convict him of conspiracy to commit home invasion because such evidence came principally from Shannon Davis, one of his alleged coconspirators, who had been offered a favorable plea bargain in exchange for his incriminating testimony. It is well established, however, that "[t]his court does not retry the case or evaluate the credibility of the witnesses. . Rather, we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude." (Citation omitted; internal quotation marks omitted.) State v. McClam , 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). Accordingly, the jury was entitled to credit Davis' testimony and to rely on it as a basis for conviction even if it was the only evidence offered to establish one or more essential elements of the charged offense. Therefore, we reject the defendant's initial challenge to the sufficiency of the evidence to support his conspiracy conviction. The defendant next claims that the state presented insufficient evidence to establish that he and his companions entered into an agreement to commit any crime, much less the specific crime of home invasion, as required to convict him of conspiracy to commit that offense. On the basis of the testimony of Davis concerning how he, the defendant and Dough planned their visit to 33 Seyms Street on the morning of February 19, however, and their joint efforts thereafter to carry out that very plan, we disagree. According to Davis, the men's shared purpose in going to 33 Seyms Street that morning was to break into 300's apartment and take a large sum of money from him. All three men travelled together to 33 Seyms Street that morning for that purpose, supporting the inference that they did so intentionally, pursuant to a joint agreement among them. They did so, moreover, while two of the men, the defendant and Davis, were armed with loaded, operable handguns that they had purchased together approximately one week earlier. This evidence, if believed, certainly was sufficient to establish not only that the three men agreed to engage in a joint criminal enterprise on the morning of February 19, but that they did so with the shared intent to enter an occupied dwelling at that address, without the owner's or occupant's permission, with the intent to commit a larceny within that dwelling, at gunpoint if necessary, while the defendant was armed with a deadly weapon from which a shot could be discharged. The jury reasonably could have relied upon such evidence, viewed in the light most favorable to the state, to find that the specific crime that the defendant and his companions agreed to commit that morning was home invasion in violation of § 53a-100aa. Accordingly, we also reject the defendant's remaining challenges to the sufficiency of the evidence to support his conspiracy to commit home invasion conviction. B Attempt to Commit Home Invasion The defendant next challenges the sufficiency of the state's evidence to support his conviction of attempt to commit home invasion. The defendant claims, more particularly, that because "no entry was ever made" into the first floor apartment at 33 Seyms Street, the state failed to establish that he intended to commit home invasion, or intentionally took a substantial step in a course of conduct planned to culminate in the commission of that offense, as opposed to some other crime. We disagree. General Statutes § 53a-49 (a) (2) provides in relevant part: "A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." "To constitute a substantial step, the conduct must be strongly corroborative of the actor's criminal purpose.... This standard focuses on what the actor has already done and not what remains to be done.... The substantial step must be at least the start of a line of conduct which will lead naturally to the commission of a crime." (Internal quotation marks omitted.) State v. Andrews , 114 Conn. App. 738, 747, 971 A.2d 63, cert. denied, 293 Conn. 901, 975 A.2d 1277 (2009). General Statutes § 53a-49 (b) provides in relevant part: "Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law . (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed . [and] (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances ." In State v. Serrano , 91 Conn. App. 227, 242-43, 880 A.2d 183, cert. denied, 276 Conn. 908, 884 A.2d 1029 (2005), this court held that the evidence was sufficient to support a conviction of attempt to commit burglary where the victim "was in her apartment at the relevant time when she saw a fork being inserted past the door lock striker and saw the doorknob turn. When the door opened, she saw the defendant holding a fork near the locking mechanism. The defendant stated that he was at the wrong apartment, covered his face and ran down the stairs. It was reasonable for the jury to infer that the defendant was attempting to break into the apartment." Reading the attempt and home invasion statutes together, the essential elements of attempt to commit home invasion are that (1) the defendant intentionally took a substantial step in a course of conduct planned to culminate in his commission of the crime of home invasion, to wit, entering a dwelling without license or privilege to do so, with the intent to commit a crime therein, while he was armed with a weapon from which a shot could be discharged, and another person not participating in the crime was actually present in the dwelling; and (2) at the time he took that substantial step, the defendant was acting with the mental state required for commission of the crime of home invasion, to wit, intent to commit a crime inside of the unlawfully entered dwelling. The evidence presented at trial concerning the defendant's conduct on the morning of February 19, was strongly corroborative of his alleged criminal purpose of committing the crime of home invasion. On the basis of Davis' testimony, which the jury reasonably could have credited and relied upon, the defendant went to 33 Seyms Street on that morning, while he and Davis were armed with loaded weapons from which shots could be discharged, with the intent to break into an apartment at that address and steal a large sum of money from a person who lived there. When he and his companions arrived at that address, moreover, he used a ruse to cause the person who responded to his knock on the apartment door to open that door, then tried to force his way inside when the door began to open. Such evidence reasonably could have been found to strongly corroborate the defendant's intent to enter an occupied dwelling, without the permission of its owner or occupant, with the intent to commit a crime therein, while he was armed with a deadly weapon. It thus was sufficient to establish that he intentionally took a substantial step in a course of conduct planned to culminate in the commission of a home invasion. Therefore, his claims of evidentiary insufficiency as to his conviction of attempt to commit home invasion must likewise be rejected. II CLAIMS OF INSTRUCTIONAL ERROR The defendant next claims that the trial court erred by instructing the jury improperly on a common essential element of conspiracy to commit home invasion and attempt to commit home invasion. Specifically, he contends that the jury could have been misled by the trial court's repeated substitution of the word building for the term dwelling in its final oral jury instructions on the elements of those offenses, thereby diluting the state's burden of proof as to those offenses. The defendant concedes that this claim is unpreserved, and thus he seeks review of the claim under State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R ., 317 Conn. 773, 781, 120 A.3d 1188 (2015). In the alternative, he asks that we reverse his conviction under the plain error doctrine. Although we conclude that the claim is reviewable under the first two prongs of Golding , we further conclude that the claim fails under Golding' s third prong, as modified by In re Yasiel R. , which requires that he demonstrate that "the alleged constitutional violation . exists and . deprived the defendant of a fair trial ." Golding , supra, at 240, 567 A.2d 823. The following additional facts are necessary to our review of this claim. On May 11, 2016, the day before the jury charge was to be given, the court held a brief charging conference on the record, during which it clarified the language it would use in its instructions on the underlying offense of home invasion, which the defendant was charged, in separate counts, with conspiring and attempting to commit. The court's focus in that conference was on whether it should describe that underlying offense, as the defendant allegedly conspired and attempted to commit it, as "entering or remaining" in the subject premises under circumstances constituting home invasion or merely "entering" those premises under such aggravating circumstances. After the close of testimony later that day, the court distributed to counsel copies of what it called the "close-to-final version" of its jury instructions so that they could take them home and review them. The following day, when counsel were asked to state for the record if they wished to make any changes or corrections to the written instructions, they both answered in the negative. During the state's closing argument concerning the charge of attempted home invasion, it focused on the alleged conduct of the defendant and his companions just outside the interior door of the Moore sisters' first floor apartment, contending that "the attempt [was] knocking on the door [of the apartment] and trying to get in ." Notably, defense counsel's closing argument focused solely on the issue of identity, challenging the credibility of the defendant's alleged coconspirator, Davis, who was the only person to implicate the defendant as a participant in the charged offenses. Before giving its oral charge, the court distributed written copies of its final instructions to the jury so that the jurors could read along as the court read the instructions aloud, and so they could have the instructions with them in writing when they conducted their deliberations. In its written instructions on the charge of home invasion, the court substituted the word building for the term dwelling on two of the twenty occasions when it should have used the term dwelling to describe the elements of the charged offenses. The first such occasion was when the court, in discussing the first element of home invasion, namely, that the defendant unlawfully entered a dwelling, stated: "The inference may be drawn if the circumstances are such that a reasonable person of honest intention, in the situation of the defendant, would have concluded that he knowingly and unlawfully remained in the building ." (Emphasis added.) The second such occasion occurred when the court, in discussing the fourth element of home invasion, namely, that the defendant was armed with a deadly weapon, stated: "This means that the defendant at some point of entering the building had actual physical possession of a deadly weapon." (Emphasis added.) There were no other substitutions of the word building for the term dwelling in the court's written instructions. When reading its written instructions to the jury, however, the court misspoke on eight of the twenty occasions when it should have used the word dwelling to define the elements of home invasion by using the word building in its stead. The first time the court misspoke in its oral instructions was when it gave the general definition of the term knowingly, stating: "In this case, the inference may be drawn if the circumstances are such that a reasonable person of honest intention, in the situation of the defendant, would have concluded that he unlawfully entered a building ." (Emphasis added.) The court next substituted the word building for the term dwelling in its recitation of the text of General Statutes § 53a-100aa (a) (2), when it stated: "A person is guilty of home invasion when such person unlawfully enters or remains in a building ." (Emphasis added.) The court thereafter used the word building instead of the term dwelling on three more occasions in quick succession, stating: "Element one-it says remained in the building . It should be entered a building . The first element is that the defendant knowingly and unlawfully entered a building ." (Emphasis added.) The court again used the word building instead of the term dwelling when it further explained the first element of home invasion, stating: "The inference may be drawn if the circumstances are such that a reasonable person of honest intention, in the situation of the defendant, would have concluded that he knowingly and unlawfully-it says remained but it should be entered in the building. " (Emphasis added.) This instance was one of the two substitutions of the word building for the term dwelling that also appeared in the court's written instructions. The next use of the word building by the court was when it appeared as part of the definition of the term dwelling. The court thereafter continued to use the term dwelling as required by the statute until it reached the fourth and final element of home invasion, as to which it said: "This means that the defendant at some point of entering the building had actual physical possession of a deadly weapon." (Emphasis added). This use of the word building for the term dwelling repeated the second such substitution as it appeared in the court's written instructions. At the conclusion of its oral charge, the court asked counsel if they had any comments or questions about the charge, but neither defense counsel nor the prosecutor took exception to the charge. Thereafter, during the jury's deliberations, it asked no questions about any of the court's written or oral jury instructions. As an initial matter, the defendant concedes that this claim is unpreserved, and thus seeks review pursuant to State v. Golding , supra, 213 Conn. at 239-40, 567 A.2d 823. "[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original; footnote omitted.) State v. Golding , supra, 213 Conn. at 239-40, 567 A.2d 823, as modified by In re Yasiel R ., supra, 317 Conn. at 781, 120 A.3d 1188. This unpreserved claim is reviewable under the first two prongs of Golding because the oral jury charge and the written instructions are set forth in their entirety in the record and the claim is of constitutional magnitude. See State v. Aponte , 259 Conn. 512, 518, 790 A.2d 457 (2002) (failure to instruct jury on essential element of crime deprives defendant of constitutional right to have jury told crimes charged and essential elements of those crimes). Therefore, we turn to the third prong of Golding to determine whether "the alleged constitutional violation . exists and . deprived the defendant of a fair trial." State v. Golding , supra, 213 Conn. at 240, 567 A.2d 823. Our analysis under the third prong of Golding begins with the "well established standard of review governing claims of instructional impropriety. [I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge.... The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . and not critically dissected in a microscopic search for possible error.... Accordingly, [i]n reviewing a constitutional challenge to the trial court's instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury." (Internal quotation marks omitted.) State v. Hampton , 293 Conn. 435, 452-53, 988 A.2d 167 (2009). In resolving this claim, we note that "[r]eviewing courts are especially hesitant in reversing a conviction on the basis of an inaccuracy in a trial court's oral instruction if the jury was provided with accurate written instructions." State v. Holley , 174 Conn. App. 488, 497, 167 A.3d 1000 (2017), cert. denied, 327 Conn. 907, 170 A.3d 3 (2017), cert. denied, - U.S. -, 138 S.Ct. 1012, 200 L.Ed.2d 275 (2018). In the present case, it is conceded by the state that the court erred in substituting the word building for the term dwelling in its instructions describing the crime of home invasion as the alleged object of the defendant's alleged conspiracy and attempt. We conclude, however, that it is not reasonably possible that the jury was misled by such erroneous instructions under the circumstances of this case or that the defendant was thereby deprived of a fair trial. The jury was given copies of the court's written instructions, which properly defined the term dwelling and correctly listed it as an element of home invasion on eighteen of the twenty times when that term should have been used in such written instructions. Such written instructions were available to the jury both during the delivery of the court's oral instructions and throughout its deliberations. Thus, although there were two instances in the written charge where the trial court erroneously used the word building instead of the term dwelling, when considering the whole charge, the other eighteen uses of the term dwelling clearly communicated to the jury that the defendant must have conspired to enter a dwelling, not merely a building, under circumstances constituting home invasion to be guilty of conspiracy to commit home invasion, and similarly must have intentionally taken a substantial step in a course of conduct planned to culminate in the unlawful entry of a dwelling under such circumstances to be guilty of attempt to commit home invasion. Moreover, neither counsel seemed to recognize that the court had misspoken at the time of trial since neither took exception to the charge. This suggests that, although the challenged misstatements were incorrect, they were not noticeable to the court, counsel, or the jury. The defendant claims that the jury could have been misled to believe that to convict him of conspiracy to commit home invasion and attempt to commit home invasion, it needed only to find that he had agreed to enter and attempted to enter the common spaces of the apartment building instead of the individual apartment within that building in which the intended victims dwelled. This is not reasonably possible in the context of this case. It was uncontested that the three men entered the front door of the apartment building and approached the door of a first floor apartment within it through a common hallway. It was uncontested throughout the trial that the first floor apartment was indeed a dwelling. It was clear from the testimony presented during trial and the arguments of counsel that the criminal activity at issue was that which occurred at the inner door to the first floor apartment. There was never any suggestion that the perpetrators' unopposed entry to the common area of the apartment building through its front door was the basis of the prosecution in this case. Therefore, although we conclude that the court erred by misspeaking during its oral charge, the overall charge, as delivered orally and in writing, was sufficiently correct in law and adapted to the issues to provide ample guidance to the jury, and, thus, the defendant was not deprived of a fair trial. Accordingly, his claim fails under Golding 's third prong. Furthermore, we also conclude that the defendant is not entitled to reversal for plain error pursuant to Practice Book § 60-5. "[P]lain error review is reserved for only the most egregious errors. When an error of such a magnitude exists, it necessitates reversal." State v. McClain , 324 Conn. 802, 814, 155 A.3d 209 (2017). "[T]he plain error doctrine . is not . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy." (Internal quotation marks omitted.) State v. Gaffney , 148 Conn. App. 537, 542, 84 A.3d 1261, cert. denied, 312 Conn. 902, 91 A.3d 907 (2014). For the foregoing reasons, we cannot conclude that the defendant's claim is so extraordinary that it necessitates reversal of the judgment. The judgment is affirmed. In this opinion the other judges concurred. The defendant also was convicted of attempt to commit robbery in the first degree in violation of General Statutes § 53a-49 (a) (2) and 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48 and 53a-134 (a) (2), and attempt to commit assault in the first degree in violation of General Statutes § 53a-49 (a) (2) and § 53a-59 (a) (5). No claim of error has been made on appeal with respect to his conviction of those charges. The amended information also charged the defendant with criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The defendant elected to try this final count to the court. The state entered a nolle prosequi on this charge on July 21, 2016. Davis pleaded guilty to his involvement in the incident in exchange for a suspended sentence and probation. As part of the terms of his probation, Davis agreed to continue to cooperate with the Hartford Police Department and the state on this case and others. The court dismissed count four of the amended information, conspiracy to commit robbery in the first degree, in accordance with our constitutional protections against double jeopardy. "The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. This clause prohibits not only multiple trials for the same offense but also multiple punishment for the same offense." (Internal quotation marks omitted.) State v. Brown , 132 Conn. App. 251, 255, 31 A.3d 434 (2011), cert. denied, 303 Conn. 922, 34 A.3d 396 (2012).

12493362

Thomas W. LANE, Zoning Enforcement Officer of the Town of Clinton v. Jeffrey S. CASHMAN, et al.

Lane v. Cashman

2018-01-30

AC 38290

13

38

180 A.3d 13

180

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.942366+00:00

Fastcase

Thomas W. LANE, Zoning Enforcement Officer of the Town of Clinton v. Jeffrey S. CASHMAN, et al.

Thomas W. LANE, Zoning Enforcement Officer of the Town of Clinton v. Jeffrey S. CASHMAN, et al. AC 38290 Appellate Court of Connecticut. Argued October 18, 2017 Officially released January 30, 2018 Edward M. Cassella, for the appellants (defendants). Sylvia K. Rutkowska, for the appellee (plaintiff). Keller, Prescott and Beach, Js.

13825

87513

KELLER, J. The defendants, Jeffrey S. Cashman and Patricia Cashman, appeal from the judgment of the trial court rendered in favor of the plaintiff, Eric Knapp, the zoning enforcement officer for the town of Clinton. The plaintiff brought the underlying action against the defendants to enforce orders to discontinue alleged zoning violations occurring at the defendants' property in Clinton. The defendants claim that the court erred in (1) striking their special defenses related to nonconforming uses and (2) granting the plaintiff's motions in limine. We affirm the judgment of the trial court. In his original complaint dated September 6, 2012, the plaintiff alleged that the defendants, who are the owners of 66 River Road in Clinton, were in violation of several Clinton zoning regulations by virtue of their keeping and raising cows without a permit, constructing a metal corral within fifty feet of the street line and within thirty-five feet of the southeast property line, and utilizing the metal corral as a structure or enclosure in which to keep the cows. The plaintiff alleged that, on January 26, 2012, he issued a warning of violation to the defendants with respect to their keeping of cows on the property without a permit and that, on March 13, 2012, he issued a warning of violation to the defendants with respect to their placement of the metal corral within the minimum setback requirements and the keeping of cows in the metal corral. The plaintiff further alleged that, on April 16, 2012, he issued to the defendants an order to discontinue their uses of the premises that violated the applicable zoning regulations, that the defendants did not file an appeal from the order within fifteen days of the issuance of the order, and that the defendants had failed to comply with the order. In his prayer for relief, the plaintiff sought, inter alia, a permanent injunction prohibiting the defendants from keeping cows on the subject premises without a permit; a mandatory injunction requiring the defendants to remove the metal corral from the street line setback and to keep any permitted livestock in an appropriate building, stable, or enclosure; and civil penalties authorized by General Statutes § 8-12 for the defendants' failure to comply with the order to discontinue. In their answer dated November 5, 2012, the defendants admitted their ownership of the subject premises and, with respect to the remainder of the allegations set forth in the original compliant, either denied the allegations or left the plaintiff to his proof. In a special defense dated November 5, 2012, the defendants alleged in relevant part that "[t]he complained of activities were nonconforming uses that predate the zoning laws the plaintiff is trying to enforce." Also, in a counterclaim dated November 5, 2012, the defendants alleged that the plaintiff, by bringing "these complaints" against them, engaged in "extreme and outrageous" conduct that caused the defendants "extreme emotional distress"; the plaintiff, "[b]y filing these groundless complaints," committed intrusions of a "highly offensive" nature against the defendants; and that the plaintiff had engaged in professional malpractice that caused the defendants to suffer damages. The defendants sought, inter alia, money damages and "[a] court order requiring . [the plaintiff] to cease harassing, selective enforcement of the zoning regulations against . [the defendants]." The plaintiff filed a "motion to dismiss and/or strike" with respect to the defendants' counterclaim and special defense. The plaintiff argued that the counterclaim and special defense "merely seek to contest the validity of a zoning order issued pursuant to General Statutes § 8-12, from which the [defendants] did not timely appeal pursuant to General Statutes § 8-7. Their failure to exhaust that administrative remedy leaves this court without subject matter jurisdiction over their special defense and counterclaim." Alternatively, the plaintiff argued that each counterclaim count "[failed] to state a claim upon which relief can be granted under the facts alleged." Over the defendants' objection, and after hearing argument on the motion, the court, Domnarski, J ., by order dated May 10, 2013, granted the plaintiff's motion. In striking the special defense, the court reasoned that it was "legally insufficient" because the defendants failed to exhaust their administrative remedies. In dismissing "[a]ll counts of the counterclaim," the court likewise relied on the fact that the defendants had failed to exhaust their administrative remedies, noting that "[i]n the counterclaim counts, the defendants seek a collateral attack on a zoning determination that they did not appeal from." On June 3, 2013, the defendants, pursuant to Practice Book § 6-15, filed a notice of intent to appeal from Judge Domnarski's May 10, 2013 dismissal of their entire counterclaim "until a final judgment rendered in said matter disposes of the case for all purposes and as to all parties." In the absence of an objection, on July 3, 2013, the plaintiff filed a request for leave to file an amended complaint and an amended complaint for the purpose of incorporating allegations of additional zoning violations at the subject premises. The amended complaint added an additional count to the cause of action. In this second count, the plaintiff sought enforcement with respect to an order to discontinue dated November 15, 2012. In count two, the plaintiff alleged that the defendants engaged in multiple activities on the subject premises in violation of the Clinton zoning regulations. Specifically, the plaintiff alleged that the defendants "have sold, and continue to sell, firewood and mulch, or otherwise maintain a retail establishment on the premises"; "have brought, and continue to bring, wood, brush, logs, wood chips, branches, and/or leaves onto the site from outside sources to process into firewood and mulch, or otherwise manufacture or process goods, on the premises"; "have participated, and continue to participate, in the wholesale of mulch on the premises"; "have stored, and continue to store, heavy equipment, trucks, and small equipment and machinery associated with businesses being conducted at the site on the premises"; "have stockpiled, and continue to stockpile, wood materials, including wood, wood chips and compost, beyond what is required for personal use on the premises and in contact with vegetation"; "have parked, and continue to park, several commercial vehicles which exceed the maximum vehicle weight limit on the premises"; "have parked, and continue to park, more than one commercial vehicle within the vehicle weight limit on the premises"; "have stockpiled and stored, and continue to stockpile and store, materials and equipment outside on the premises, including mulch, logs, firewood, log splitters, wood chippers, grinders, vehicles, loaders, and light and heavy construction equipment"; "have stored, and continue to store, more than two unregistered vehicles on the premises, including a recreational vehicle, a tractor for a tractor trailer, a dump truck, and an SUV"; "have constructed and maintained, and continue to maintain, a shed on the premises without a permit"; "have kept, and continue to keep, chickens and ducks on the premises without a permit and in excess of a total of ten"; "have conducted, and continue to conduct, a farming operation of raising, keeping and caring for livestock, poultry and ducks on the premises without a permit or special exception"; and have "kept, and continue to keep, livestock on the premises without any covered watertight container or containment on site for manure." The plaintiff alleged that all of these activities violated specific zoning regulations, all of which were cited in the complaint; that he issued the defendants a warning of violation on October 18, 2012; that he issued the defendants an order to discontinue on November 15, 2012; that the defendants failed to comply with the order to discontinue; and that the defendants did not file an appeal from the order to discontinue within fifteen days of the issuance of that order. Moreover, the plaintiff alleged that on March 13, 2013, the defendants notified him "that they intended to continue to regrind and sell wood chips from the premises," and that their conduct constituted a wilful failure to comply with the order to discontinue. In his amended complaint seeking enforcement of both orders to discontinue, the plaintiff sought permanent and mandatory injunctive relief related to the defendants' activities on the premises, civil penalties for the defendants' wilful failure to comply with the orders to discontinue dated April 16, 2012, and November 15, 2012, and further just and equitable relief deemed appropriate by the court. The defendants filed an answer to the amended complaint dated August 22, 2013. Therein, the defendants generally denied the substantive allegations in the amended complaint, or left the plaintiff to his proof. Additionally, the defendants raised three special defenses. In the first special defense, the defendants alleged that, to the extent that the plaintiff alleged that they used the subject premises as a farm, such use was a legally permissible nonconforming use of the premises. In the second special defense, the defendants alleged that, to the extent that the plaintiff alleged that they used the premises as a commercial nursery operation, such use was a legally permissible nonconforming use of the premises. In the third special defense, the defendants, claiming that the plaintiff's conduct led them to believe that their activities at the subject premises were legally permissible, alleged a defense of municipal estoppel. Subsequently, on September 6, 2013, the plaintiff filed a request to revise in which he requested that the defendants delete the first and second special defenses in their entirety and, with respect to the third special defense, state the special defense more particularly. In his request to revise, the plaintiff asserted that the first two special defenses were legally improper because they previously had been stricken by Judge Domnarski. Thereafter, on November 22, 2013, the defendants deleted the first and second special defenses in their entirety and repleaded the third special defense. Following the revision, on December 24, 2013, the plaintiff moved to strike the repleaded third special defense in its entirety on the grounds that it failed to state a claim upon which relief could be granted and was, in part, unresponsive to the request to revise inasmuch as it injected into the special defense a new claim that appeared to challenge the validity of the orders, specifically, that the defendants' use of the subject premises was lawful pursuant to General Statutes § 19a-341. The defendants filed an opposition to the motion to strike the third special defense. After the court, Aurigemma, J ., heard argument on the motion, on May 21, 2014, it granted the motion. In granting the motion, the court determined, first, that the defendants had failed to allege sufficient facts to support a claim of municipal estoppel because they had failed to allege that the plaintiff had induced the defendants to engage in the activities at issue at the subject premises. The court determined, second, that, in their revised answer, the defendants improperly had included revisions that had not been requested by the plaintiff in his request to revise and which were unrelated to the special defense of municipal estoppel. Also, with respect to the addition of paragraph 10 of the revised third special defense, which raised a claim that was based on § 19a-341, the court determined that it was improper because it "alleges preexisting nonconforming use, which has previously been stricken by this court." Additionally, prior to the commencement of the trial, the plaintiff filed five motions in limine to preclude the defendants from presenting evidence for the purpose of (1) contesting the validity of the orders to discontinue dated April 16, 2012, and November 15, 2012; (2) proving a defense of municipal estoppel or laches; (3) demonstrating that relevant actions or decisions had been undertaken or made by any Clinton individuals or agencies other than the Clinton zoning authority; (4) demonstrating facts related to police reports and "claims of false or illegal entries into the record (specifically the zoning office 'street' file) by the plaintiff as zoning enforcement officer"; and (5) proving a defense of nonconforming farm use of the subject premises. The defendants objected to these motions. The court expressly granted the first, second, fourth, and fifth of these motions, but a ruling on the third motion, related to evidence concerning other agencies or individuals, does not appear in the record. Prior to the hearing, the parties entered into a joint stipulation of facts, dated April 28, 2015, as follows: "(1) The defendants . purchased the [subject premises] . and are the current owners. "(2) The premises is located within a R-80 residential zoning district. "(3) The defendants have kept, and continue to keep, cows on the premises . "(4) The defendants have constructed a metal corral within fifty feet from the street line and thirty-five feet from the southeast property line.... "(5) On April 16, 2012, the plaintiff issued to the defendants an order to discontinue the keeping of cows within a metal corral, which was constructed and located within the minimum front yard setback for the R-80 zoning district (50 feet) and the minimum side property line setback for the R-80 zoning district (35 feet). "(6) The defendants did not file an appeal from the order to discontinue to contest its validity within fifteen (15) days after the issuance of said order to discontinue pursuant to . General Statutes § 8-6 and 8-7 and the rules of the Zoning Board of Appeals of the Town of Clinton [board] . establishing a fifteen (15) day appeal period.... "(7) The defendants have sold, and continue to sell, firewood and mulch on the premises. "(8) On October 18 and November 15, 2012, section 24.1.21 [of the Clinton zoning regulations] stated that retail establishments, as a permitted use, were prohibited in the R-80 district. "(9) The defendants have brought, and continue to bring, wood, logs and wood chips onto the premises from outside sources to process into firewood and mulch. "(10) The defendants have participated, and continue to participate, in the wholesale of mulch on the premises. "(11) On October 18 and November 15, 2012, section 24.1.61 [of the Clinton zoning regulations] stated [that] manufacturing, processing or assembly of goods, as a permitted use, is prohibited in the R-80 district. "(12) On October 18 and November 15, 2012, section 24.1.62 [of the Clinton zoning regulations] stated [that] warehousing and wholesale businesses, as a permitted use, are prohibited in the R-80 district. "(13) The defendants have stored, and continue to store, heavy equipment, trucks, small equipment and machinery associated with the business being conducted at the site on the premises. "(14) The defendants have stockpiled, and continue to stockpile, wood materials, including wood, wood chips and compost. "(15) On October 18 and November 15, 2012, section 24.1.76 [of the Clinton zoning regulations] stated [that] storage of materials, which is dangerous due to explosion, extreme fire hazard and radioactivity, beyond what is required for person[al] residential use, as a permitted use, is prohibited in the R-80 district. "(16) The defendants have parked, and continue to park, several vehicles, including two dump trucks, two mason trucks, a 3500 Dodge pickup and a six wheel tanker truck on the premises. "(17) On October 18 and November 15, 2012, section 24.1.70 [of the Clinton zoning regulations] stated [that] contractor's businesses, associated building and storage yards, as permitted uses, are prohibited in the R-80 district. "(18) On October 18 and November 15, 2012, section 26.1.4 (d) (1) stated that parking of commercial vehicles in excess of one and one-half ton gross vehicle weight, as an accessory use, is prohibited in the R-80 district. "(19) The defendants have stockpiled and stored, and continue to stockpile and store, materials and equipment outside on the premises, including mulch, logs, firewood, a log splitter, wood chippers, vehicles and loaders. "(20) On October 18 and November 15, 2012, section 26.1.4 (m) [of the Clinton zoning regulations] stated [that] outside storage areas, as an accessory use, shall not extend into the areas required for setbacks from property line or residential district boundary lines; and section 26.1.4 (m) (1) [of the Clinton zoning regulations] stated [that] any permitted outside accessory storage areas shall be enclosed except for necessary access drive, by building and/or fence, walls, embankments or evergreen shrubs or trees so as to screen the storage area[s] from view from any other lot or from any street. "(21) The defendants have kept, and continue to keep, chickens and ducks on the premises in excess of ten. "(22) On October 18 and November 15, 2012, section 24.1.43 [of the Clinton zoning regulations] stated that chickens or other poultry, as a permitted use, are not to exceed a total of ten (10) on a lot. "(23) The defendants have conducted, and continue to conduct, a farming operation of raising, keeping and caring for livestock, poultry and ducks on the premises. "(24) On November 15, 2012, the plaintiff issued to the defendants an order to discontinue, listing numerous violations of the Clinton zoning regulations with activities on the site . "(25) The defendants did not file an appeal from the order to discontinue to contest its validity within fifteen (15) days after the issuance of said order to discontinue pursuant to . General Statutes § 8-6 and 8-7 and rules of the [board] . section IV, establishing a fifteen (15) day appeal period.... "(26) On March 13, 2013, the defendants notified the plaintiff that they intended to continue to regrind wood chips and sell wood chips from the premises. "(27) On March 28, 2013, the plaintiff, through counsel, issued to the defendants a letter advising them that the importation and processing of wood materials is a violation of the acts prohibited under section 24.1.61 of the Clinton zoning regulations and the order to discontinue dated November 15, 2012." (Citations omitted.) The matter was tried before the court, Aurigemma, J ., on April 28, 2015. The court heard testimony from Lane, Knapp, and Jeffrey Cashman. Additionally, the parties presented several exhibits. On July 30, 2015, the court issued a memorandum of decision by which it rendered judgment in favor of the plaintiff, thereby enforcing the plaintiff's orders of April 16, 2012, and November 15, 2012. In its memorandum of decision, the court set forth the parties' stipulation of facts. Additionally, the court found that, after the plaintiff issued the April 16, 2012 order, which described the defendants' right to appeal, "the parties had discussions, and the defendants agreed to move the cows into the areas that met the setback requirements. The defendants did relocate the cows, but only for a short period of time, [before they] moved them back so that they continued to violate the April 16, 2012 order to discontinue. "On February 1, 2012, the plaintiff issued a warning of violation of sections 7.5, 23.4, 24.1.57 and 4.1.74 of the [Clinton zoning] regulations to the defendants. The warning expressly advised the defendants to '[s]top the manufacturing of wood materials for sale and the stock-piling of wood and debris away from vegetative areas to prevent any possible ignition of the vegetation. Stabilize the site by properly installing erosion controls along all disturbed areas and stockpiles. Stop the import of materials such as logs, wood chips, branches, leaves and other land/tree clearing debris.' After inspection, on February 13, 2012, the plaintiff issued a second warning of violations that was identical to the February 1, 2012 warning. Thereafter, the defendants met with the plaintiff and agreed to reduce and eliminate the mulch piles, eliminate the use of outside mulch and provide a place for the animals outside of the setbacks. The defendants also advised the plaintiff in April, 2012, that they had stopped accepting outside wood and wood chips. Thereafter, the defendants violated their agreements and failed to comply with the February warnings. "After the plaintiff inspected the premises and found that the defendants had not remedied various violations of the zoning regulations, on October 18, 2012, he issued a notice of violations of numerous sections of the regulations. The notice reminded the defendants of their previous agreements to bring the premises into compliance and expressly advised the defendants that their failure to remedy the violations could lead to further legal action and the imposition of penalties under the Connecticut General Statutes. Thereafter, on November 15, 2012, the plaintiff issued an order to discontinue, listing the numerous violations of the regulations about which the defendants had previously received notice. This order, like the April order, expressly stated that it 'may be appealed to the [board] within fifteen days of its receipt.' "On March 13, 2013, the defendants' attorney . sent a letter to . [the attorney] who represented the plaintiff, advising her that since the Department of [Energy and] Environmental Protection did not require [Jeffrey Cashman] to obtain a permit to regrind and sell wood chips, [Jeffrey Cashman] intended to resume regrinding and selling wood chips on the premises. The letter did not explain how the position of the Department of [Energy and] Environmental Protection had any relevance whatsoever to the violation of the Clinton zoning regulations. On March 28, 2013 . [another attorney who] also represented the plaintiff, sent a letter to the defendants' attorney . advising that accepting wood chips for regrinding and sale would constitute a wilful failure to comply with the November 15, 2012 order to discontinue. "On November 13, 2013, the defendants petitioned to amend the Clinton zoning regulations to allow a number of the defendants' activities that are the subject of the orders to discontinue, including the mulching operation. The petition to amend was approved with modification on May 12, 2014. However, the defendants have never even attempted to take advantage of the amended regulations and, unbelievably, have not applied to obtain a special permit exception pursuant to the new regulations. "[Lane] retired as zoning enforcement officer . and . [Knapp] became the Clinton [zoning enforcement officer] on May 1, 2014. He inspected the premises and found that almost all of the violations mentioned in the orders to discontinue still existed, including cows in the corral, smoking piles of mulch, and heavy machinery on the premises. [Knapp] testified that [Jeffrey Cashman] has made it clear that he has no intention of complying with the orders at issue. [Jeffrey Cashman's] own testimony made it clear that, essentially, he does not think the zoning regulations should apply to him because he's a farmer. "The plaintiff has incurred $16,388.50 in attorney's fees and $412.20 in costs related to this action through May 1, 2015. Since the briefs in this case were filed on June 19, 2015, and July 7, 2015, the plaintiff has undoubtedly incurred additional legal expenses in connection therewith. "The defendants have stipulated to the majority of the allegations in the plaintiff's complaint. They don't deny that they are in violation of the orders to discontinue and the regulations referenced therein. They just don't believe the orders are valid and/or that the orders should apply to them. However, the defendants may not contest the validity of the orders to discontinue in this zoning enforcement action because they failed to appeal those orders." The court proceeded in its analysis to reject the defendants' argument that the injunctive relief requested by the plaintiff was inequitable. The court, citing relevant case law, observed that the granting of such relief must be compatible with the equities of the case, and went on to determine that equitable considerations weighed in favor of granting the plaintiff relief. The court stated in relevant part: "[T]he fact that a party will suffer irreparable harm as a result of a zoning enforcement injunction does not make the injunction inequitable.... In this case . the court finds that the equities patently lie with the town. The defendants have blatantly and defiantly violated multiple zoning regulations, failing to even attempt to lessen or erase those violations by applying for special permits." The court granted the plaintiff injunctive relief with respect to the activities and conditions at the subject premises that were the subject of the plaintiff's orders to discontinue. Moreover, the court ordered the defendants to pay a fine and awarded the plaintiff attorney's fees and costs. This appeal followed. Additional facts will be set forth as necessary. I First, the defendants claim that Judge Domnarski and Judge Aurigemma erred in striking one of their special defenses, thereby prohibiting them from demonstrating that they had a legally protected right to use the subject premises as a farm on the ground that such use of their property was a nonconforming use that existed prior to the town's amendment of the zoning regulations in 2012 with respect to farms and livestock. We disagree. We begin our analysis of this claim by reviewing some of the relevant procedural history set forth previously in this opinion. The record reflects that on May 10, 2013, Judge Domnarski struck the defendants' special defense that was included in their answer dated November 5, 2012, which they had filed in response to the plaintiff's original complaint. This special defense was that the subject property had been classified as farmland under Public Act 63-490 and that the activities described in the April 16, 2012 order to discontinue "were nonconforming uses that predate the zoning laws the plaintiff is trying to enforce." In granting the motion to strike, Judge Domnarski agreed with the plaintiff's arguments and determined that the special defense was "legally insufficient" because the defendants had failed to exhaust their administrative remedies by exercising their right to challenge the validity of the order by appealing it to the board. After the plaintiff filed an amended complaint, the defendants filed an answer to the amended complaint. As we explained previously, the answer to the amended complaint originally contained three special defenses. The defendants deleted the first two of these special defenses in response to the plaintiff's request to revise. Thus, following its revision by the defendants, the answer set forth only one special defense that included a claim of municipal estoppel and a claim that the defendants' activities at the subject premises were protected pursuant to § 19a-341. In striking this special defense in its entirety, Judge Aurigemma determined that the defendants had failed to allege sufficient facts to demonstrate that the plaintiff had engaged in activities that induced them to engage in the conduct at issue at the subject premises. Additionally, Judge Aurigemma concluded that, insofar as the defendants had revised the special defense to include a claim pursuant to § 19a-341, such revision was legally improper. See footnotes 9 and 10 of this opinion. In their argument concerning the present claim, the defendants focus solely on whether the court properly precluded them from setting forth their special defense on the basis of farming as a nonconforming use. Specifically, the defendants argue: "Throughout the record of the case, the defendant[s] [have] attempted to provide evidence that shows, unequivocally, that some, if not all, of the 'violations' existed prior to the revision of the zoning regulations on January 1, 2012, and were legal as of right uses on December 31, 2011. The defendants admittedly failed to appeal the [zoning enforcement officer's] orders to the [board]. The trial court should have [nonetheless] . allowed the defendants to proceed with their special defenses. Because the defendants' uses were legal nonconforming uses, the defendants were entitled to constitutional protection of those nonconforming uses that were on the property at the time of the amendment to the zoning regulations." The defendants proceed to argue that they operated a farm on the subject premises prior to January 1, 2012, that the zoning regulations at issue were amended to prohibit some of the defendants' activities on the subject premises on January 1, 2012, and that the plaintiff began enforcement action against the defendants approximately four months later. Additionally, the defendants argue that "[t]he facts are clear that once the town revised the regulations, the plaintiff began immediate enforcement against the defendants. Such behavior is a violation of the defendants' statutory and constitutional rights that are attached to property owners with nonconforming uses and, because of the egregious nature of the enforcement and the unconstitutional nature of the result, the doctrine of exhaustion of administrative remedies should not apply." Additionally, in framing their claim, the defendants have referred to rulings made by Judge Domnarski and Judge Aurigemma. They argue that these rulings "prohibited [them] from raising the special defenses that they had a legal nonconforming right to use the property as a farm ." Turning to the defendants' claim of error as it relates to Judge Aurigemma's ruling, we observe, once again, that, in this appeal, the defendants do not claim that Judge Aurigemma erroneously struck their special defense as it pertained to their claim of municipal estoppel or their reliance on § 19a-341. Instead, the defendants claim is limited to their assertion of a legally protected right to the nonconforming use of the subject premises as a farm. Although the defendants refer to Judge Aurigemma's ruling in their statement of the claim, they do not identify how Judge Aurigemma's ruling on the motion to strike harmed them or why it was erroneous. As counsel for the defendants acknowledged at oral argument before this court, Judge Aurigemma did not strike a special defense related to such a nonconforming use of the subject premises because, by the time that Judge Aurigemma ruled on the motion to strike, the defendants had deleted their first and second special defenses (related to nonconforming use) in their response to the plaintiff's request to revise. Thus, any claim of error by the defendants that Judge Aurigemma improperly struck their special defenses related to nonconforming use is belied by a simple review of the record. We are unable to review a ruling that was not made. Thus, we turn to the defendants' claim of error as it relates to Judge Domnarski's ruling striking their special defense that they had a legally protected right to continue to conduct nonconforming farming activities at the subject premises. Before discussing the propriety of that ruling, we address the plaintiff's argument that the defendants voluntarily waived appellate review of Judge Domnarski's ruling because, following that ruling, the plaintiff filed an amended complaint, the defendants filed an answer in response to the plaintiff's amended complaint, and, later, the defendants amended their answer and voluntarily deleted special defenses alleging nonconforming use. It is well established in our law that "[w]hen an amended pleading is filed, it operates as a waiver of the original pleading. The original pleading drops out of the case and although it remains in the file, it cannot serve as the basis for any future judgment, and previous rulings on the original pleading cannot be made the subject of an appeal." (Internal quotation marks omitted.) Lund v. Milford Hospital, Inc ., 326 Conn. 846, 850, 168 A.3d 479 (2017) ; see also Rockstone Capital, LLC v. Sanzo , 175 Conn. App. 770, 788, 171 A.3d 77 (same), cert. granted on other grounds, 327 Conn. 968, 173 A.3d 391 (2017) ; Ed Lally & Associates, Inc . v. DSBNC, LLC , 145 Conn. App. 718, 746, 78 A.3d 148 (same), cert. denied, 310 Conn. 958, 82 A.3d 626 (2013). "When a defendant voluntarily files an amended or substitute answer after a former one has been adjudged insufficient on demurrer, he waives all right to except to the action of the court in sustaining the demurrer to the first answer." Pettus v. Gault , 81 Conn. 415, 418, 71 A. 509 (1908). In the present case, following Judge Domnarski's ruling on the motion to strike on May 10, 2013, the defendants did not file an amended or substitute answer in response to the plaintiff's original complaint. Rather, on August 22, 2013, after the plaintiff filed a motion for default for the defendants' failure to file a responsive pleading to the amended complaint, the defendants filed an answer to the plaintiff's July 3, 2013 amended complaint. In their answer to the amended complaint, the defendants included two special defenses of nonconforming use, thereby reasserting the special defense related to farming activities that had been stricken by Judge Domnarski. In his request to revise the answer to the amended complaint, the plaintiff requested that the first and second special defenses be deleted in their entirety as having been "previously alleged" by the defendants in their response to his original complaint and having been "already stricken by Judge Domnarski" on the ground that the defendants failed to exhaust their administrative remedies. Although they had a right to object to any or all of the requested revisions; see Practice Book § 10-37 (b) ; the defendants did not do so. Instead, they deleted the special defenses, thereby removing those special defenses from the trial court's consideration in adjudicating the merits of the case. To clarify the narrow waiver issue before us, we reiterate that, presently, the defendants only challenge Judge Domnarski's ruling in striking their special defense related to farming activities on the subject premises. They deleted their special defense related to commercial nursery activities at the subject premises; see footnote 11 of this opinion; and no ruling was made with respect to that special defense. Moreover, they have not appealed from Judge Aurigemma's ruling striking their special defense that was based on municipal estoppel. The plaintiff's waiver argument is somewhat persuasive, for it is based on the defendants' voluntary decision to delete both their special defenses that were based on nonconforming use in response to the plaintiff's request to revise. The defendants, although failing to address the plaintiff's waiver argument by means of a reply brief, nonetheless rely on Judge Domnarski's ruling as a rationale for their failure to object to the request to revise, an undoubtedly futile endeavor that only would have compelled the court to revisit the issue of the validity of their special defenses. We have not discovered any precedent that shares the unique procedural history presented in the present case and, thus, could be considered to be binding authority with respect to the issue. Lacking clearly applicable precedent, we turn to a review of the merits of the claim and conclude that Judge Domnarski's ruling was proper. It is undisputed that the defendants did not exercise their right to appeal to the board from the plaintiff's April 16, 2012 order to discontinue within fifteen days of the receipt of that order. In moving to dismiss and/or strike the special defense at issue, the plaintiff argued that the court lacked subject matter jurisdiction to consider the special defense because the defendants failed to exhaust their administrative remedies by appealing to board within the time prescribed by the board. See General Statutes § 8-7. In their written objection to the plaintiff's motion, submitted to the trial court, the defendants argued in relevant part that the exhaustion doctrine did not apply in this case because (1) the special defense was based on a determination that one or more zoning regulations were invalid, specifically, that by virtue of Public Act 63-490, the regulations on which the plaintiff relied are invalid or illegal and did not apply to the subject property, and (2) their special defense was based on the interpretation of a statute, specifically, that it required the court to interpret Public Act 63-490, which, the defendants argued, "exempts them from the zoning regulations of Clinton by making their property a valid nonconforming use that predates the zoning regulations of Clinton" and that "[a] land owner is not required to appeal to an administrative agency where the interpretation of a statute is required." During argument on the motion, the defendants' attorney reiterated that the defendants intended by their special defense to challenge the validity of the zoning regulations "because Public Act 63-490 . effectively trumps these zoning enforcement regulations" and that their special defense required the court to interpret Public Act 63-490. The plaintiff reiterated the central premise advanced in his motion, namely, that the special defense at issue raised a garden variety claim of whether the defendants had a nonconforming use and that such issue should have been raised before the board because it was "clearly within [its] purview." Before this court, the defendants argue that they wanted to demonstrate that some, if not all, of the conditions and activities at issue on the subject property existed prior to the time that the Clinton zoning regulations were revised on January 1, 2012, such that they were legal on December 31, 2011. The defendants argue that farming uses were "lightly regulated" prior to the revisions, but beginning on January 1, 2012, farming uses required a permit. The defendants argue that, as part of proving their special defense, they intended to present evidence to show that they had been operating a farm on the subject premises since 1988 and had constructed the enclosure for cows prior to January 1, 2012, the date when newly enacted regulations prohibiting livestock from being kept within the setback area went into effect. They argue that it was obvious that their farming activities predated the newly enacted regulations and that the plaintiff's conduct, in immediately enforcing the newly enacted zoning regulations with respect to their property was "egregious" because their activities clearly were legally protected as nonconforming uses. They argue that "[s]uch behavior is a violation of the defendants' statutory and constitutional rights that are attached to property owners with nonconforming uses ." The defendants argue that the present case falls into one of the narrow exceptions to the exhaustion doctrine. Relying on Norwich v. Norwalk Wilbert Vault Co ., 208 Conn. 1, 4, 544 A.2d 152 (1988), the defendants argue that they excusably bypassed available administrative relief, specifically, appealing to the board, because "a constitutional question is involved and obtaining relief from the [board] would be futile." In this regard, the defendants argue that the question of whether any constitutionally protected nonconforming uses existed was beyond the scope of review by the board and that "this case presents a constitutional question as to whether the plaintiff can eliminate a constitutionally protected nonconforming right just by the issuance of a cease and desist order that is not appealed." The defendants argue that the exception applies in this case to address what they describe as an "unconstitutional result" of the plaintiff's order. Additionally, the defendants argue that the plaintiff's actions "raised questions as to whether or not the newly enacted regulation[s] [were] invalid. The [board] was not in a position to make a determination as to whether or not the newly enacted regulation[s] [were] invalid, particularly, in [their] enforcement against the defendants." Without citing to any relevant authority, the defendants posit that the issue of whether a nonconforming use existed was simply "beyond the scope of the [board]." Additionally, relying on Upjohn Co . v. Zoning Board of Appeals , 224 Conn. 96, 104-105, 616 A.2d 793 (1992), the defendants argue that they properly bypassed administrative relief because the plaintiff's "zoning action [was] so far outside [a] valid exercise of zoning power that public policy dictates that the aggrieved party be allowed to challenge the zoning authority in court." In this regard, the defendants rely, in part, on the fact that the plaintiff began his enforcement action soon after the zoning regulations were revised and that the order to discontinue had the effect of "eliminat[ing]" their nonconforming right to use the subject property as a farm. At oral argument before this court, the defendants clarified that the timing of the plaintiff's enforcement activities in relation to the revisions to the zoning regulations was sufficient to reflect that the plaintiff's zoning enforcement activities fell so far outside of the lawful or legitimate exercise of zoning power that they should be permitted to challenge the zoning authority in court. Thus, the arguments raised by the defendants before Judge Domnarski with respect to exceptions to the exhaustion doctrine differ from those, discussed previously, that the defendants currently advance before this court. Before the trial court, the defendants' exhaustion arguments were dominated by a reliance on Public Act 63-490, an enactment to which the defendants do not even refer in their appellate brief. It would be particularly unfair, both to the trial court and to the plaintiff, for this court to overturn the trial court's ruling on the basis of constitutional and public policy arguments that were neither raised before nor addressed by the court. Even if we were to consider the merits of the arguments on which the defendants currently rely, we would readily conclude that they are not persuasive and, thus, do not afford them a right to bypass the administrative remedies available to them. A motion to strike is the procedural vehicle whereby a party may challenge the legal sufficiency of a special defense and, in ruling on a motion to strike, the court "must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." Barasso v. Rear Still Hill Road, LLC , 64 Conn. App. 9, 13, 779 A.2d 198 (2001). In the present case, the issue raised by the motion to strike concerned the exhaustion doctrine and, thus, the court's subject matter jurisdiction to consider the special defense rather than the legal sufficiency of the special defense. Accordingly, it is appropriate to view and review the ruling as one made in connection with a motion to dismiss. "The standard of review for a court's decision on a motion to dismiss . is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.... When a . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the [special defense] in their most favorable light.... In this regard, a court must take the facts to be those alleged in the [special defense], including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.... The motion to dismiss . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.... In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Dorry v. Garden , 313 Conn. 516, 521, 98 A.3d 55 (2014). If the resolution of the jurisdictional issue hinges on relevant facts that are in dispute, the court may hold an evidentiary hearing to resolve them. Id., at 523-24, 98 A.3d 55. In the present case, it is of no consequence that the court viewed the motion as it was framed by the parties, as a motion to strike, because the relevant facts were not in dispute in light of the parties' stipulation that the defendants did not pursue an appeal before the board. The defendants argue that this case falls within an exception to the exhaustion doctrine because a "constitutional question is involved" and "[t]he [board] was not in a position to make a determination as to whether or not the newly enacted regulation was invalid ." In Norwich v. Norwalk Wilbert Vault Co ., supra, 208 Conn. at 1, 544 A.2d 152, precedent on which the defendants expressly rely, our Supreme Court stated: "It is well settled that a jurisdictional prerequisite to seeking relief in a court of law is that all available administrative remedies must have been exhausted.... We have held, however, that under limited circumstances, there are exceptions to this principle. One such exception is that where the available relief is inadequate or futile, the administrative process may be bypassed.... [E]xhaustion of administrative remedies is generally not required when the challenge is to the constitutionality of the statute or regulation under which the board or agency operates, rather than to the actions of the board or agency.... Generally, such challenges have been instituted by a plaintiff in a declaratory judgment action." (Citations omitted; internal quotation marks omitted.) Id., at 4-5, 544 A.2d 152. In Stepney, LLC v. Fairfield , 263 Conn. 558, 821 A.2d 725 (2003), our Supreme Court provided additional guidance with respect to this type of issue: "[T]here are recognized exceptions to the exhaustion doctrine, but we have recognized such exceptions only infrequently and only for narrowly defined purposes.... One such exception involves a challenge to the constitutionality of the statute or regulation under which an agency operates, rather than to the actions of the board or agency.... [T]he mere allegation of a constitutional violation [however] will not necessarily excuse a [party's] failure to exhaust available administrative remedies . The test is whether the appeal would be futile because the administrative agency . lacks the authority to grant adequate relief.... "Moreover . [s]imply bringing a constitutional challenge to an agency's actions will not necessarily excuse a failure to follow an available statutory appeal process.... [D]irect adjudication even of constitutional claims is not warranted when the relief sought by a litigant might conceivably have been obtained through an alternative [statutory] procedure . which [the litigant] has chosen to ignore.... [W]e continue to limit any judicial bypass of even colorable constitutional claims to instances of demonstrable futility in pursuing an available administrative remedy." (Citations omitted; internal quotation marks omitted.) Id., at 570-71, 821 A.2d 725 ; see also General Dynamics Corp. v. Groton , 184 Conn. 483, 490, 440 A.2d 185 (1981) (exhaustion doctrine does not apply to questions concerning constitutionality of statute granting administrative agency authority to operate); Friedson v. Westport , 181 Conn. 230, 233, 435 A.2d 17 (1980) (exhaustion doctrine does not apply to questions related to "very enactment" of regulations at issue). Looking beyond isolated assertions by which the defendants purport to challenge the validity of the zoning regulations at issue, which are unaccompanied by any legal analysis, a careful review of the substance of the defendants' arguments reveals that the "constitutional question" that they sought to raise by means of their special defense simply was whether the plaintiff's enforcement activities were valid despite the fact that, following the enactment of the revised zoning regulations at issue, they had a constitutionally protected preexisting use resulting from their activities on the subject premises prior to January 1, 2012. As the defendants acknowledge ultimately, their special defense was meant to challenge "the unconstitutional result of the plaintiff's illegal enforcement," but not the constitutionality of the regulations that the plaintiff purported to enforce. (Emphasis added.) The defendants' constitutional challenge to the plaintiff's activities does not excuse their failure to avail themselves of the administrative appeal process that was available to them. Although we recognize that "[a] party need not exhaust an inadequate or futile administrative remedy"; Conto v. Zoning Commission , 186 Conn. 106, 115, 439 A.2d 441 (1982) ; the defendants have not demonstrated that the board was unable to fulfill its customary administrative function in the present case by considering the appropriate evidence and determining whether the plaintiff properly determined that a nonconforming use did not exist, a determination made manifest by the issuance of the order to discontinue. Moreover, the defendants have not demonstrated that the board, in fulfilling its customary administrative function, was unable to grant any appropriate relief warranted in the present case with respect to the plaintiff's order to discontinue. Nothing in the record suggests that the relief sought by the defendants could not have been obtained by resort to the administrative remedy that they ignored. Our Supreme Court has "held that the statutory scheme [which affords a right to appeal from the decision of an administrative officer or agency to the zoning board of appeals] reflects the legislative intent that the issue of what constitutes a nonconforming use should be resolved in the first instance by local officials.... [W]hen a party has a statutory right of appeal from the decision of an administrative officer or agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test.... Likewise, the validity of the order may not be contested if zoning officials seek its enforcement after a violator has failed to appeal." (Citations omitted; internal quotation marks omitted.) Gelinas v. West Hartford , 225 Conn. 575, 595, 626 A.2d 259 (1993). The rationale in another decision of our Supreme Court applies with equal force to the present case: "Clearly the defendant had a statutory right to appeal the cease and desist order to the zoning board of appeals. The zoning board [of appeals] would in that proceeding determine whether the defendant, in fact, had a nonconforming use. The statutory procedure reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board's judgment.... Instead of following this administrative process to establish the legality of his use after the receipt of the order to cease and desist, the defendant elected to await the institution of an action by the town to enforce the order. On the record of this case, we conclude that the trial court properly refused to resolve the issue of the defendant's special defense alleging a nonconforming use, since that issue was one properly for administrative determination in the first instance." (Citation omitted; footnote omitted.) Greenwich v. Kristoff , 180 Conn. 575, 578-79, 430 A.2d 1294 (1980). Accordingly, the defendants' futility argument is unpersuasive. As the defendants properly observe, in Upjohn Co . v. Zoning Board of Appeals , supra, 224 Conn. at 104-105, 616 A.2d 793, our Supreme Court, in rejecting a collateral attack upon a condition attached to a building application, stated that "there may be exceptional cases in which a previously unchallenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition would violate some strong public policy. It may be that in such a case a collateral attack on such a condition should be permitted. We leave that issue to a case that, unlike this case, properly presents it." See also Gangemi v. Zoning Board of Appeals , 255 Conn. 143, 150, 763 A.2d 1011 (2001) (rejecting claim that exception suggested in Upjohn Co . satisfied). The court in Upjohn Co . stated: "[W]e have ordinarily recognized that the failure of a party to appeal from the action of a zoning authority renders that action final so that the correctness of that action is no longer subject to review by a court.... [This rule rests] in large part, at least in the zoning context, on the need for stability in land use planning and the need for justified reliance by all interested parties-the interested property owner, any interested neighbors and the town-on the decisions of the zoning authorities." (Citations omitted.) Upjohn Co . v. Zoning Board of Appeals , supra, at 102, 616 A.2d 793. In arguing that this precedent permitted them to bypass the administrative remedies available to them, the defendants argue, inter alia, that they were faced with a fifteen day appeal period in which to appeal to the board, that they had complied with the plaintiff's initial orders and had made attempts to persuade the plaintiff that his zoning enforcement activities were unjust and illegal, that such discussions lasted beyond the appeal period, and that the plaintiff's orders had the effect of eliminating their nonconforming use rights with respect to the subject premises. The defendants challenge Judge Domnarski's ruling in striking their special defense, yet the defendants rely on "facts surrounding [their] decision not to appeal the orders" that were presented at the time of the trial, well after the time that Judge Domnarski considered and ruled on the motion to strike. Having reviewed Upjohn Co . and its progeny, we are not persuaded that the facts of the present case are sufficient to meet the "very high standard"; Torrington v. Zoning Commission , 261 Conn. 759, 769, 806 A.2d 1020 (2002) ; necessary to satisfy the narrow exception to the exhaustion doctrine on which they rely. Stripped of the defendants' rhetoric, their special defense was a means of demonstrating that a nonconforming use existed. The plaintiff, in issuing the order to discontinue, plainly disagreed with the defendants' position in this regard. That a property owner disagreed with the determination of a zoning enforcement officer hardly presents an extraordinary circumstance. Moreover, the defendants have not presented this court with any authority to support their assertion that "[t]he question of whether any constitutionally protected nonconforming uses [existed] is beyond the scope of the [board]." The defendants, having been apprised of their right to appeal, chose not to appeal within the time period set by the board. If, as they argue, their farming activities obviously were nonconforming uses of the property following January 1, 2012, they had an ample opportunity to demonstrate that fact before the board. They do not present any compelling reasons why the issue was not the proper subject of an appeal before the board or why, despite any ongoing efforts to persuade the plaintiff to rescind his order, they were unable to bring an appeal. Nothing in the record suggests that the defendants could not have brought a timely appeal before the board while simultaneously continuing to negotiate with the plaintiff in an effort to resolve the dispute. For the foregoing reasons, we conclude that Judge Domnarski's ruling in striking the special defense was proper. II Next, we consider the defendants' claim that the court improperly granted three of the plaintiff's motions in limine. We disagree. As explained previously in this opinion, the plaintiff brought five motions in limine in which he sought to preclude certain evidence. The defendants challenge the court's granting of three of those motions. The first motion pertained to evidence offered for the purpose of challenging the validity of the orders to discontinue dated April 16, 2012, and November 15, 2012. The second motion pertained to evidence offered for the purpose of proving a defense of municipal estoppel or laches. The third motion pertained to evidence offered for the purpose of proving a nonconforming farm use of the subject premises. In his written motions, the plaintiff argued in relevant part that any evidence by which the defendants sought to raise a collateral attack on the orders to discontinue, including any evidence offered to demonstrate that a nonconforming use existed, should be disallowed in light of Judge Domnarski's prior ruling that struck the defendants' special defense, the fact that the defendants had voluntarily withdrawn their special defenses related to nonconforming use in response to his request to revise, and the defendants' failure to appeal the orders to the board. Moreover, the plaintiff argued, in relevant part, that evidence related to the issues of municipal estoppel or laches should be disallowed in light of Judge Aurigemma's prior ruling that struck the defendants' special defense that was related to these issues. Previously in this opinion, we discussed the foregoing procedural history in greater detail. The defendants filed a written objection to these motions, in which they argued in relevant part: "The defendants intend to present evidence which will provide the court with the full history of the defendants' use of the property since they acquired the property in 1987. The defendants intend to present evidence concerning the steps that they have taken to improve their property and utilize it in a manner that they believed was consistent with the zoning regulations then in effect. The defendants intend to present evidence of their responses to the orders to discontinue and their obtaining and providing information concerning the nature of their use.... All of the evidence that the defendants intend to introduce is relevant to the court's central determination as to whether or not the permanent injunction should be granted." The defendants argued that because the plaintiff has invoked the court's equitable powers by seeking a permanent injunction with respect to the defendants' farming activities on the subject property, the court was obligated to consider the equities of the case and to assess the gravity and wilfulness of the violation and the potential harm to the defendants. The defendants argued: "Although the defendants failed to appeal the orders to discontinue, the court must look to the historic use of the property in ruling on whether the equities will be served in granting this injunction.... The evidence that the defendants seek to admit will provide the court with evidence that is necessary for the determination regarding the gravity and wilfulness of the violation as well as the potential harm [to the] defendants. The evidence will include the historic use of the property, the plaintiff's inspections of the property, town regulation of the property and the defendants' responses to the orders to discontinue." (Citation omitted; internal quotation marks omitted.) Initially, during oral argument on the motions, the defendants' attorney argued in relevant part: "I disagree that we cannot challenge the validity of the orders [to discontinue] because the court has the ultimate discretion as to whether or not those orders should be upheld and turned into permanent injunctions in favor of the town." The defendants' attorney argued that the evidence at issue, with respect to nonconforming use, was necessary so that the court would have "a full picture" of all of the facts surrounding the orders to discontinue and that such evidence was relevant to the equitable issues before the court in determining whether it should grant the plaintiff permanent injunctive relief. Later, the defendants' attorney appeared to have modified his argument slightly by stating that the defendants did not intend "necessarily" to challenge the validity of the orders to discontinue, but to present evidence that was relevant to a determination of what injunctive relief, if any, was warranted. During oral argument on the motions, the plaintiff's attorney argued in relevant part that, despite the equitable considerations that were before the court, the defendants' position, that they should be allowed to present evidence in an attempt to demonstrate a nonconforming farm use or to otherwise challenge the validity of the orders to discontinue, would permit them, effectively, to transform the case into the administrative appeal that the defendants chose not to pursue. With respect to the motions in limine pertaining to evidence of nonconforming use or evidence that otherwise would effectively challenge the validity of the orders to discontinue, the court, Aurigemma, J ., agreed with the plaintiff's arguments and granted the motions in limine related to such evidence. The court stated that the defendants had not pursued an administrative appeal. With respect to the motion in limine pertaining to the special defense of estoppel or laches, the plaintiff's attorney observed that the court already had stricken the special defense of the defendants to which such evidence would have pertained. The defendants' attorney acknowledged that the parties already had presented relevant arguments in this regard in the context of the motion to strike that special defense. The court granted the motion. Presently, the defendants argue that the court's rulings were erroneous because in so ruling the court prohibited them from presenting an equitable defense to the zoning enforcement action. The defendants argue: "In this case, although the defendants failed to appeal the orders to discontinue, the court must look to the historic use of the property in ruling on whether the equities will be served in granting this injunction." They argue: "The evidence that the defendants attempted to admit would have provided the trial court with evidence that was necessary for the determination regarding the gravity and wilfulness of the violation as well as the potential harm to the [defendants].... [T]he evidence will include the historic use of the property, the plaintiff's inspections of the property, town regulation of the property and the defendants' responses to the orders to discontinue." (Internal quotation marks omitted.) Additionally, the defendants argue: "In the present matter, the defendants failed to appeal the cease and desist orders due to their belief that the matters would be amicably resolved. We do not believe that the mere failure to timely appeal the matter is sufficient to have the nonconforming uses extinguished. In reviewing the orders, it does not appear as though [the] plaintiff ever considered the property was a farm or understood that the farm use was permitted without a zoning permit until December 31, 2011." (Internal quotation marks omitted.) Primarily, the plaintiff argues that the defendants have failed to claim, let alone demonstrate, that the court's rulings were harmful such that the disallowed evidence likely would have affected the result of the trial. Also, the plaintiff argues that the court's rulings reflected a proper exercise of its discretion because the equitable nature of the proceeding did not limit the court's discretion in the manner claimed by the defendants. The defendants urge us to review the court's rulings de novo because the court based its evidentiary rulings on its resolution of a question of law, specifically, whether their failure to exhaust their administrative remedies precluded them from presenting "any evidence concerning their historic use of the property or the regulations that had been in effect on December 31, 2011." Also, the defendants argue that the rulings require that we review questions of law, including "whether the defendants were entitled to a constitutional review of the elimination of the nonconforming rights, whether the plaintiff's actions deprived the defendants of constitutionally protected rights and whether this constitutional question presents an exception to the exhaustion of administrative remedies rule." The plaintiff urges us to apply the deferential abuse of discretion standard of review to the claimed errors. Here, it is apparent that the court determined that the evidence at issue was inadmissible because (1) the defendants failed to exhaust their administrative remedies, (2) Judge Domnarski previously struck the special defense of nonconforming use, and (3) the court previously struck the special defense of equitable estoppel. The defendants urge us to reconsider whether the evidence at issue related to the historic use of the subject property, the zoning regulations in effect on December 31, 2011, and estoppel nonetheless was admissible in the present enforcement action. We note, however, that we already have determined in part I of this opinion that the court properly struck the special defense of farming as a nonconforming use, and the defendants do not challenge Judge Aurigemma's ruling that struck their special defense that was based on estoppel. At no time did the court strike the voluntarily deleted special defense of operating a commercial nursery as a nonconforming use. We recognize that the function performed by the court in issuing the challenged evidentiary ruling dictates our scope of review. See State v. Saucier , 283 Conn. 207, 219, 926 A.2d 633 (2007). Regardless of whether we review the rulings under a plenary standard of review or under an abuse of discretion standard of review, it remains the defendant's burden on appeal to demonstrate that the court's evidentiary rulings were harmful. "[B]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful.... The harmless error standard in a civil case is whether the improper ruling would likely affect the result.... When judging the likely effect of such a trial court ruling, the reviewing court is constrained to make its determination on the basis of the printed record before it.... In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless." (Internal quotation marks omitted.) Desrosiers v. Henne , 283 Conn. 361, 366, 926 A.2d 1024 (2007). As the plaintiff aptly observes, the defendants' brief does not adequately set forth an analysis of how the court's exclusion of evidence affected the final result of the proceeding. Faced with an appellant's failure adequately to brief how a challenged evidentiary ruling was harmful, both this court and our Supreme Court have declined to review a claim of error related to such ruling. See, e.g., Saint Bernard School of Montville, Inc . v. Bank of America , 312 Conn. 811, 823, 95 A.3d 1063 (2014) ; State v. Toro , 172 Conn. App. 810, 813, 162 A.3d 63, cert. denied, 327 Conn. 905, 170 A.3d 2 (2017) ; In re James O ., 160 Conn. App. 506, 526, 127 A.3d 375 (2015), aff'd, 322 Conn. 636, 142 A.3d 1147 (2016). The consequence of the defendants' failure to analyze the issue of harm adequately is that we are left to speculate with respect to the content and significance of the evidence that was excluded by the court's rulings. The defendants argued before the trial court that they would have presented evidence relevant to an understanding of the historic use of the subject premises, as well as the gravity and wilfulness of the zoning violation. In their brief, the defendants do not draw our attention to any proffer made by them to the trial court and, beyond conclusory statements concerning the existence of a nonconforming use, the record does not clearly describe the content of the evidence that the court excluded. In their appellate brief, the defendants state in broad terms that the court erroneously excluded evidence concerning "the historic utilization of the property, the previous versions of the regulations under which the defendants acted and the unreasonableness of the plaintiff when considering the history prior to January 1, 2012." Apart from failing to refer us to any portion of the record for details concerning the excluded evidence, the defendants fail to attempt to demonstrate how the excluded evidence was likely to have affected the result-a showing that, on the scant record before us, is not at all self-evident. As the defendants assert, "[e]ven in an action brought by a zoning enforcement officer to require conformity with the zoning regulations, the granting of injunctive relief, which must be compatible with the equities of the case, rests within the trial court's sound discretion.... Those equities should take into account the gravity and wilfulness of the violation, as well as the potential harm to the defendants." (Citation omitted.) Johnson v. Murzyn , 1 Conn. App. 176, 183, 469 A.2d 1227, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). "This court previously has observed that [t]here is a general principle that a court of equity will balance the equities between the parties in determining what, if any, relief to give. The equities on both sides must be taken into account in considering an appeal to a court's equitable powers. An equity court wisely considers the relative positions of the parties and makes a decree that does substantial justice to all. It is the duty of a court of equity to strike a proper balance between the needs of the plaintiff and the consequences of giving the desired relief.... [C]ourts should not intervene unless the need for equitable relief is clear, not remote or speculative. Thus, a court of equity should not grant an award which would be disproportionate in its harm to the defendant and its assistance to the plaintiff." (Internal quotation marks omitted.) Steroco, Inc . v. Szymanski , 166 Conn. App. 75, 90-91, 140 A.3d 1014 (2016). At the core of the defendants' claim is their belief that a nonconforming use existed and that the plaintiff unjustly deprived them of such use. General Statutes § 8-2 (a), as amended by Public Acts 2017, No. 17-39, § 1, provides in relevant part that zoning regulations "shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations. Such regulations shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use. Such regulations shall not terminate or deem abandoned a nonconforming use, building or structure unless the property owner of such use, building or structure voluntarily discontinues such use, building or structure and such discontinuance is accompanied by an intent to not reestablish such use, building or structure. The demolition or deconstruction of a nonconforming use, building or structure shall not by itself be evidence of such property owner's intent to not reestablish such use, building or structure." A nonconforming use has been defined as "a use or structure [that is] prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations [were] adopted." (Internal quotation marks omitted.) Stamford v. Ten Rugby Street, LLC , 164 Conn. App. 49, 71, 137 A.3d 781, cert. denied, 321 Conn. 923, 138 A.3d 284 (2016). "A [nonconforming] use is merely an existing use, the continuance of which is authorized by the zoning regulations.... Stated another way, it is a use . prohibited by the zoning regulations but . permitted because of its existence at the time that the regulations [were] adopted.... [T]he rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the [relevant] zoning regulations." (Internal quotation marks omitted.) Wiltzius v. Zoning Board of Appeals , 106 Conn. App. 1, 25, 940 A.2d 892, cert. denied, 287 Conn. 906, 907, 950 A.2d 1283, 1284 (2008). "For a use to be considered nonconforming . that use must possess two characteristics. First, it must be lawful and second, it must be in existence at the time that the zoning regulation making the use nonconforming was enacted." (Emphasis omitted; internal quotation marks omitted.) Cummings v. Tripp , 204 Conn. 67, 91-92, 527 A.2d 230 (1987) ; see also R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015) § 2:2 p. 28 ("[a] nonconforming use is one that was in existence at the time that the zoning regulation making the use nonconforming was enacted and which was previously lawful"). "The party claiming the benefit of a nonconforming use bears the burden of proving that the nonconforming use is valid." Connecticut Resources Recovery Authority v. Planning & Zoning Commission , 225 Conn. 731, 744, 626 A.2d 705 (1993). Although the defendants bear the burden of demonstrating that the exclusion of evidence and, particularly, the exclusion of evidence of a nonconforming use, likely affected the result of the trial, they do not demonstrate how the record justifies that they were prepared to present such evidence to the court. Although they argue that, on and before December 31, 2011, they used the subject property as a farm, they do not point to evidence, or proffered evidence, in the record, or to any applicable zoning regulation in effect prior to January 1, 2012, to support a determination that their historic use of the subject premises was lawfully nonconforming. Additionally, by reference to the record, they do not demonstrate how any excluded evidence would have proven a lack of wilfulness on the defendants' part. Instead, the record reflects the existence of many undisputed facts, all of which tend to support the court's determination that injunctive relief was warranted. Specifically, the facts reflect that the defendants admittedly failed to exhaust their administrative remedies by appealing from either of the orders to discontinue and that they admittedly violated multiple zoning regulations and manifested to the plaintiff an intent to continue activities that violated zoning regulations. Additionally, in determining that "the equities patently lie with [the plaintiff]," the court found: "The defendants have blatantly and defiantly violated multiple zoning regulations, failing to even attempt to lessen or erase those violations by applying for special permits." The defendants do not afford this court any basis on which to conclude that the excluded evidence would have tipped the balance of the equities in their favor. For the foregoing reasons, we reject the claim that the court's evidentiary ruling was erroneous. The judgment is affirmed. In this opinion the other judges concurred. In 2012, the underlying action was commenced by Thomas W. Lane as zoning enforcement officer for the town of Clinton. On September 23, 2014, prior to the trial, Lane moved to substitute Knapp as the plaintiff in the present action because, on May 1, 2014, Knapp had assumed the position of zoning enforcement officer for Clinton. The court granted the motion. Because Lane and Knapp appear in the same representative capacity and it is not necessary to our analysis to distinguish between them, in this opinion, we will refer to both Lane and Knapp as the plaintiff. The plaintiff alleged in part: "The defendants' use of the property . violates Clinton zoning regulations, sections 24.1.42, which states that the keeping and raising of cows requires a zoning permit from the zoning enforcement officer; 25.1, which states that 'no structure shall extend into any setbacks required by [the zoning] regulations'; 25.10.6, which states that the minimum setback from the street line in a R-80 district is fifty feet; 25.10.8, which states that the minimum setback from the property line or side property in a R-80 district is 35 feet; and 26.1.4, which states that 'all livestock shall be kept in a building, stable or enclosure, not less than the legal setback for the appropriate zone for any abutting residential property.' " It is undisputed that the order of April 16, 2012, stated, in relevant part: "This violation must be remedied within ten (10) days of receipt of this notice. Failure to correct these violations within the above stated time frame may result in the party being fined $250 per day for each day the violation(s) continues and/or may result in a civil penalty not to exceed $2500 and/or result in legal action to enforce the order and to obtain penalties and fines accruing pursuant to . General Statutes § 8-12. "This order may be appealed to the Zoning Board of Appeals of the Town of Clinton within fifteen days of its receipt." The special defense stated: "1. The subject property has been classified by the town of Clinton as farmland under Public Act 63-490 since 1990 and is, therefore, a legally nonconforming use of the subject property not subject to zoning laws passed after its classification as farmland under Public Act 63-490. "2. The complained of activities were nonconforming uses that predate the zoning laws the plaintiff is trying to enforce." In general terms, No. 63-490 of the 1963 Public Acts, codified in General Statutes § 12-107a et seq., allows certain types of land, including farmland, to be assessed at its use value, rather than at its fair market value, for purposes of local property taxation. Additionally, the plaintiff alleged that the defendants have caused dust and smoke; "[o]dors, fumes and/or gasses"; have made "[n]oise"; have failed to have proper provisions for the storage of waste; and have stockpiled wood materials in contact with vegetation. Prior to trial, the plaintiff withdrew these parts of the second count of the amended complaint. It is undisputed that the order of November 15, 2012, stated, in relevant part: "These violations must be remedied within ten (10) days of the receipt of this notice. Failure to correct these violations within the above stated time frame may result in the party being fined $250 per day for each day the violations continue and/or may result in a civil penalty not to exceed $2500 and/or result in legal action to enforce the order and to obtain penalties and fines accruing pursuant to . General Statutes § 8-12. "This order may be appealed to the Zoning Board of Appeals of the Town of Clinton within fifteen days of receipt." The first special defense stated: "1. The various uses described in the plaintiff's amended complaint are uses directly associated with a farm on said premises, which is a specifically permitted use under the zoning regulations of the town of Clinton, which use has been established and operated by the defendants and their predecessors in ownership of said property for a period of at least thirsty (30) years. "2. The above described use of the property predates the present zoning regulations, which require a special permit or a special exception for said use, and hence is a permitted, preexisting, nonconforming use." The second special defense stated: "1. In addition to the use of said premises as a 'farm,' said premises also had been used by the defendants and their predecessors in title as a commercial nursery operation, and as such, is a legally permitted, preexisting, nonconforming use under the Clinton zoning regulations." General Statutes § 19a-341 provides in relevant part: "(a) Notwithstanding any general statute or municipal ordinance or regulation pertaining to nuisances to the contrary, no agricultural or farming operation, place, establishment or facility, or any of its appurtenances, or the operation thereof, shall be deemed to constitute a nuisance, either public or private, due to alleged objectionable (1) odor from livestock, manure, fertilizer or feed, (2) noise from livestock or farm equipment used in normal, generally acceptable farming procedures, (3) dust created during plowing or cultivation operations, (4) use of chemicals, provided such chemicals and the method of their application conform to practices approved by the Commissioner of Energy and Environmental Protection or, where applicable, the Commissioner of Public Health, or (5) water pollution from livestock or crop production activities, except the pollution of public or private drinking water supplies, provided such activities conform to acceptable management practices for pollution control approved by the Commissioner of Energy and Environmental Protection; provided such agricultural or farming operation, place, establishment or facility has been in operation for one year or more and has not been substantially changed, and such operation follows generally accepted agricultural practices. Inspection and approval of the agricultural or farming operation, place, establishment or facility by the Commissioner of Agriculture or his designee shall be prima facie evidence that such operation follows generally accepted agricultural practices.... "(c) The provisions of this section shall not apply whenever a nuisance results from negligence or wilful or reckless misconduct in the operation of any such agricultural or farming operation, place, establishment or facility, or any of its appurtenances." In revising the third special defense, in which the defendants originally had raised a claim of municipal estoppel, the defendants, inter alia, inserted a new paragraph, numbered as paragraph 10, which provides: "In addition, the defendants claim that their activities on said premises with respect to the mulching operation as a farming activity, together with other farming activities conducted on said premises by them, are protected and permitted under the provisions of [General Statutes § 19a-341 ]." In his memorandum of law in support of the motion to strike the third special defense, the plaintiff argued that this newly added paragraph should be stricken because it was unresponsive to the request to revise and, in light of the defendants' failure to exhaust their administrative remedies, jurisdictionally improper as a means of demonstrating that the defendants were lawfully using the subject premises. We reiterate that Judge Domnarski struck the special defense set forth in the defendants' answer to the plaintiff's original complaint. This special defense pertained to nonconforming farming activities at the subject premises. The defendants did not plead a special defense of nonconforming use related to commercial nursery activities at the subject premises until after the plaintiff amended his complaint to seek enforcement of the order to discontinue dated November 15, 2012. The defendants did not file a reply brief to respond to this waiver argument. At oral argument before this court, the defendants' attorney relied on the fact that the defendants had filed a notice of intent to appeal from Judge Domnarski's ruling dismissing their counterclaim. The defendants' notice of intent to appeal from Judge Domnarski's dismissal of their counterclaim does not affect our analysis of the waiver issue concerning the striking of their special defense. Count one of the amended complaint was related to the zoning violations addressed in the order to discontinue dated April 16, 2012. Count two of the amended complaint was related to the zoning violations addressed in the order to discontinue dated November 15, 2012. The special defenses in the answer to the amended complaint were designated as "first," "second," and "third" special defenses and, thus, were not pleaded in accordance with Practice Book § 10-51, which provides in relevant part that "[w]here the complaint . is for more than one cause of action, set forth in several counts, each separate matter of defense should be preceded by a designation of the cause of action which it is designed to meet, in this manner: First Defense to First Count , Second Defense to First Count , First Defense to Second Count , and so on...." (Emphasis in original.) At oral argument before this court, the defendants' attorney stated that the defendants' trial counsel deleted the special defenses in recognition of Judge Domnarski's prior ruling. "[T]he law does not require the performance of a futile act." (Internal quotation marks omitted.) Barber v. Jacobs , 58 Conn. App. 330, 336, 753 A.2d 430, cert. denied, 254 Conn. 920, 759 A.2d 1023 (2000). It suffices to state that, with respect to the exhaustion of administrative remedies issue, we are not persuaded by the defendants' reliance on Haussherr-Hughes v. Redenz , Superior Court, judicial district of Danbury, Docket No. CV-98-0332716 S (January 11, 2000) (26 Conn. L. Rptr. 256, 2000 WL 73169), which we deem to be factually and procedurally distinguishable from the present case. The defendants also argued that they would have presented evidence concerning the potential harm to them arising from injunctive relief. We observe that, during his testimony before the trial court, Jeffrey Cashman testified with respect to what actions he took in an attempt to address the zoning violations at issue, why he did not bring an administrative appeal, and how the granting of injunctive relief would impact and harm him. Our review of the trial transcript reveals that the defendants made an offer of proof on two separate occasions. During argument on the plaintiff's motions in limine, the defendants made an offer of proof with respect to certain police report evidence. The defendants, however, do not appeal from the court's ruling on the plaintiff's motion in limine related to this evidence. Later, during Jeffrey Cashman's examination, the defendants attempted to make an offer of proof with respect to an inspection report that was provided to Jeffrey Cashman by the Department of Agriculture to demonstrate that "what he was doing on his property was within generally accepted agricultural practices." We note that, although the defendants purport to challenge the court's ruling in excluding evidence pertaining to estoppel, they do not adequately address this issue in their brief, and the record does not contain sufficient facts to warrant any discussion of harm with respect to the exclusion of such evidence.

12510831

Angel VILLAFANE v. COMMISSIONER OF CORRECTION

Villafane v. Comm'r of Corr.

2019-06-11

AC 40615

72

81

211 A.3d 72

211

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:58:01.966564+00:00

Fastcase

Angel VILLAFANE v. COMMISSIONER OF CORRECTION

Angel VILLAFANE v. COMMISSIONER OF CORRECTION AC 40615 Appellate Court of Connecticut. Argued January 9, 2019 Officially released June 11, 2019 Cheryl A. Juniewic, assigned counsel, New Haven, for the appellant (petitioner). Nancy L. Walker, assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, former state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent). Keller, Moll and Bishop, Js. Opinion

4338

26883

KELLER, J. The petitioner, Angel Villafane, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal and improperly (1) denied his motions to appoint habeas counsel, and (2) rejected his claim that his trial counsel provided ineffective assistance. We disagree and, accordingly, dismiss the petitioner's appeal. The following facts and procedural history are relevant to our resolution of this appeal. On December 17, 2014, the petitioner pleaded guilty to one count of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2) and one count of criminal violation of a protective order in violation of General Statutes § 53a-223. The petitioner also admitted to violating his probation in two instances and violating a conditional discharge in violation of General Statutes § 53a-32. According to the factual basis provided by the state at the petitioner's plea hearing, the petitioner forced his way into a house occupied by a woman with whom he had a previous relationship, where he proceeded to strike her "several times in the head, and then grabbed a knife from the kitchen and attempted to stab her ." The prosecutor indicated that the woman's daughter called the police, and, at that time, the petitioner fled from the residence. After canvassing the petitioner, the court determined that the pleas had been "knowingly and voluntarily made" and were supported by a factual basis. At the petitioner's sentencing hearing on February 25, 2015, the court imposed a total effective sentence of eight years incarceration followed by seven years of special parole. The court terminated the other probations that the petitioner was serving at the time. On June 29, 2015, the petitioner, who was self-represented at the time, filed a petition for a writ of habeas corpus. The petitioner alleged, inter alia, that he was living at the victim's house on the day on which the crime was committed. He contended that, because he lived there, he "could not be guilty of burglary in the first degree ." Based on this contention, he alleged that his attorney at the time of the plea hearing, public defender David Egan, provided ineffective assistance by recommending that he plead guilty to that crime and "take [nine] years and [seven] years special parole." Id. He also contended that Egan never "did his due diligence to remotely look into fighting" his case, nor did he investigate "the facts in the case or the witnesses ." Additionally, the petitioner asserted that Egan and the trial court, Iannotti , J. , had violated his sixth and fourteenth amendment rights because Egan was ineffective and the trial court had refused to grant his motion to dismiss Egan as his attorney. In his return, the respondent, the Commissioner of Correction, indicated that he was without sufficient information to admit or deny any of the factual allegations contained in the petitioner's petition for a writ of habeas corpus. As such, the respondent indicated he would leave the petitioner to his proof. On July 9, 2015, after the court received the petition for a writ of habeas corpus, it referred the petitioner to the Office of the Chief Public Defender for appointment of counsel. On August 17, 2015, Attorney James Ruane and his law firm, Ruane Attorneys at Law, entered an appearance on the petitioner's behalf. On December 6, 2016, however, the petitioner moved to dismiss counsel because, in his view, since the time he was appointed counsel, the petitioner had been "represented by [three] different attorneys" from the firm. He argued that each of the attorneys had "done nothing at all in the petitioner's case" and that his most recent attorney, Daniel F. Lage, had refused to investigate his case. The petitioner requested that the habeas court dismiss Lage and permit him to represent himself, and that a trial be scheduled for March 20, 2017. On January 30, 2017, the habeas court, Bright, J. , heard arguments on the petitioner's motion to dismiss counsel. After canvassing the petitioner and cautioning him about the challenges of self-representation, the court stated: "[The petitioner] has thought through this. He understands the challenges of representing himself, but he's been working diligently in preparing his case. He has a right to represent himself. He says he's prepared to go to trial. I'm going to grant his motion." On May 9, 2017, fifteen days before the habeas trial was scheduled to begin, the petitioner filed a written motion with the habeas court for "[appointment] of special counsel." The petitioner indicated in the motion that he wanted "special counsel to assist the petitioner with his habeas case." The court, Sferrazza, J. , who presided over the habeas trial, denied the motion, indicating that the "petitioner specifically asked to dismiss appointed counsel and proceed [self-represented]." The petitioner's habeas trial was held on May 24, 2017. At the outset of the proceeding, the petitioner renewed his request for counsel to assist him in his representation. He stated: "Now, being that I got the private investigator and the expert psychologist to do the work . I need . an attorney to be able to help me represent this because I'm having problems to understand why am I still being charged with burglary one when I live at that address and I have all the proof ." The court responded: "[Y]ou don't get to pick and choose who your attorney is when you're having an appointed attorney. And the fact that you're disappointed with the attorney or you hold the attorney in low regard or the attorney is not presenting the case the way you would want is not grounds for disqualifying the attorney and getting a new attorney. And you opted to represent yourself, and that's what you're doing. If I were to appoint a new attorney now, that would be like allowing indigents to pick and choose their own attorney, which is not allowed. So you'll have to proceed and do the best you can in representing yourself." The petitioner did not revisit his request for counsel. At trial, the self-represented petitioner presented testimony from three witnesses, including himself, and offered twelve exhibits, nine of which were admitted into evidence. The respondent presented no evidence. In a memorandum of decision dated May 26, 2017, the habeas court denied the petitioner's petition for a writ of habeas corpus. The court aptly observed that the petitioner claimed that trial counsel had rendered ineffective assistance by (1) failing to conduct adequate pretrial investigation and preparation, (2) failing to request that the petitioner undergo a competency examination pursuant to General Statutes § 54-56d, and (3) failing to advise the petitioner that one cannot burglarize one's own residence. The court concluded that the petitioner was unable to prevail on any of these claims. Soon thereafter, the petitioner filed a petition for certification to appeal; see General Statutes § 52-470 (g) ; and an application for waiver of fees, costs, and expenses and appointment of counsel on appeal (fee waiver application). See General Statutes § 52-259b. He asserted the following grounds for his proposed appeal: "(1) I don't have money I'm flat broke," and "(2) my [sixth] and [fourteenth] amendment right[s] are violated. I have evidence to show that my . then Attorney Egan was ineffective and also the Milford court [Iannotti, J .] was bias[ed]. My due process was violated by the court [and] Attorney Egan." The habeas court denied the petition for certification to appeal but granted the fee waiver application and appointed counsel for purposes of the appeal. This appeal followed. The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal and improperly (1) denied his motions to appoint habeas counsel, and (2) rejected his claim that his trial counsel provided ineffective assistance. Section 52-470 (g) provides: "No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person's release may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or, if such judge is unavailable, a judge of the Superior Court designated by the Chief Court Administrator, to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies." As our Supreme Court has explained, one of the goals our legislature intended by enacting this statute was "to limit the number of appeals filed in criminal cases and hasten the final conclusion of the criminal justice process ." Iovieno v. Commissioner of Correction , 242 Conn. 689, 699, 699 A.2d 1003 (1997). "[T]he legislature intended to discourage frivolous habeas appeals." Simms v. Warden , 230 Conn. 608, 616, 646 A.2d 126 (1994). "[ Section] 52-470 (b) acts as a limitation on the scope of review, and not the jurisdiction, of the appellate tribunal." (Footnote added.) Logan v. Commissioner of Correction , 125 Conn. App. 744, 750, 9 A.3d 776 (2010), cert. denied, 300 Conn. 918, 14 A.3d 333 (2011). "Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits.... "To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." (Internal quotation marks omitted.) Logan v. Commissioner of Correction , supra, 125 Conn. App. at 750-51, 9 A.3d 776. "In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification." (Internal quotation marks omitted.) Sanders v. Commissioner of Correction , 169 Conn. App. 813, 821-22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017). I The petitioner first claims that the habeas court abused its discretion in denying his petition for certification to appeal with respect to the issue of whether the habeas court properly denied his motions for the appointment of habeas counsel. The respondent argues, however, that the petitioner failed to raise this issue as a ground for appeal either by stating it in his petition for certification to appeal or in his fee waiver application on which he expressly relied in his petition for certification to appeal. Thus, the respondent argues that the petitioner is unable to claim on appeal that the court abused its discretion in denying his petition for certification to appeal on this ground. The petitioner acknowledges that he did not include this ground in his petition for certification to appeal but alternatively "seeks to prevail on his claim pursuant to the plain error doctrine." We address these arguments in turn. It is well established that a petitioner cannot demonstrate that the habeas court abused its discretion in denying a petition for certification to appeal if the issue raised on appeal was never raised before the court at the time that it considered the petition for certification to appeal as a ground on which certification should be granted. See, e.g., Henderson v. Commissioner of Correction , 181 Conn. App. 778, 792, 189 A.3d 135, cert. denied, 329 Conn. 911, 186 A.3d 707 (2018) ; Tutson v. Commissioner of Correction , 144 Conn. App. 203, 216-17, 72 A.3d 1162, cert. denied, 310 Conn. 928, 78 A.3d 145 (2013) ; Perry v. Commissioner of Correction , 131 Conn. App. 792, 796-97, 28 A.3d 1015, cert. denied, 303 Conn. 913, 32 A.3d 966 (2011) ; Mercado v. Commissioner of Correction , 85 Conn. App. 869, 872, 860 A.2d 270 (2004), cert. denied, 273 Conn. 908, 870 A.2d 1079 (2005). Although the petitioner argues in his appellate brief that the habeas court abused its discretion in denying his petition for certification to appeal with respect to the issue of whether the habeas court properly denied his motions for the appointment of habeas counsel, as stated previously, the petitioner recognizes that he did not include that claim as a potential ground for appeal in his petition for certification to appeal. This omission is fatal to his claim. As our decisional law makes clear, "[b]ecause it is impossible to review an exercise of discretion that did not occur, we are confined to reviewing only those issues which were brought to the habeas court's attention in the petition for certification to appeal." (Emphasis omitted; internal quotation marks omitted.) Henderson v. Commissioner of Correction , supra, 181 Conn. App. at 792, 189 A.3d 135 ("[A] petitioner cannot demonstrate that the habeas court abused its discretion in denying a petition for certification to appeal if the issues that the petitioner later raises on appeal were never presented to, or decided by, the habeas court. . Under such circumstances, a review of the petitioner's claims would amount to an ambuscade of the [habeas] judge." [Internal quotation marks omitted.] ). Alternatively, the petitioner attempts to raise an independent claim on which to obtain reversal of the habeas court's denial of his petition for a writ of habeas corpus. In particular, he invokes the plain error doctrine pursuant to Practice Book § 60-5. He contends that the habeas court's denial of his written and oral motions for the appointment of counsel is an error so obvious that it affects the fairness and integrity of, and public confidence in, the judicial proceedings. The respondent, however, argues that this court should not consider the petitioner's claim under the plain error doctrine because the petitioner has failed to establish a prerequisite for appellate review-i.e., that the habeas court abused its discretion in denying certification to appeal. In support of his argument urging us not to consider the petitioner's plain error claim, the respondent cites to the concurring opinion in Foote v. Commissioner of Correction , 151 Conn. App. 559, 573-74, 96 A.3d 587 (Keller, J. , concurring) ("[e]ngaging in a plain error analysis of claims never raised in connection with a petition for certification to appeal expands the scope of review and thwarts the goals that the legislature sought to achieve by enacting § 52-470 [g]"), cert. denied, 314 Conn. 929, 102 A.3d 709 (2014), and cert. dismissed, 314 Conn. 929, 206 A.3d 764 (2014), and to this court's decision in Mercado v. Commissioner of Correction , supra, 85 Conn. App. at 872, 860 A.2d 270 (dismissing appeal from denial of certification to appeal because petitioner did not raise claim of plain error in petition for certification to appeal). The respondent argues, inter alia, that considering the petitioner's claim of plain error invites petitioners who have been denied certification to appeal to circumvent the bounds of limited review pursuant to § 52-470 (g) simply by couching wholly unpreserved grounds as plain error. The respondent correctly acknowledges, however, that in appeals from the denial of a petition for certification to appeal, this court previously has considered claims of plain error that were not included as potential grounds for appeal in a petition for certification to appeal. See, e.g., Foote v. Commissioner of Correction , supra, 151 Conn. App. at 566-69, 96 A.3d 587 (in appeal from denial of certification to appeal, court considered claim of plain error not raised in petition for certification to appeal). Despite this apparent inconsistency in this court's jurisprudence with respect to whether, in an appeal from the denial of a petition for certification to appeal, this court may consider a claim of plain error that was not raised as a ground on which certification should be granted, we need not attempt to resolve that reviewability issue in the present case. This is because we conclude that the petitioner's reliance on the plain error doctrine is flawed for a more fundamental reason, namely, the claim was adequately preserved during the habeas trial. The plain error doctrine is set forth at Practice Book § 60-5, which provides in relevant part: "The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court...." The plain error doctrine "is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine . is not . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy. . In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . Plain error is a doctrine that should be invoked sparingly.... Implicit in this very demanding standard is the notion . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review.... [Thus, an appellant] cannot prevail under [the plain error doctrine] . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Emphasis added; internal quotation marks omitted.) State v. Moore, 293 Conn. 781, 823, 981 A.2d 1030 (2009), cert. denied, 560 U.S. 954, 130 S. Ct. 3386, 177 L.Ed. 2d 306 (2010). In the present case, however, the petitioner did in fact raise, by written and oral motion, requests for the appointment of counsel, which were ultimately denied by the court. Because this claim was raised and ruled on by the habeas court and, thus, was properly preserved prior to and during the habeas trial, the petitioner's reliance on the plain error doctrine is misplaced. Cloaking the claim in plain error garb merely obfuscates the fact that the claim was raised and decided during the habeas trial. If the petitioner desired appellate review of the court's denial of his motions, it was incumbent on him to include that issue as a ground for appeal in his petition for certification to appeal in order for the habeas court to rule on it. See General Statutes § 52-470 (g). Because he did not do so, we decline to afford it review. See Tutson v. Commissioner of Correction , supra, 144 Conn. App. at 217, 72 A.3d 1162. II The petitioner also claims that the habeas court abused its discretion in denying his petition for certification to appeal with respect to the issue of whether his trial counsel rendered ineffective assistance. The respondent contends that this court should forgo reviewing this claim because it is inadequately briefed. We agree with the respondent. "Ordinarily, [c]laims are inadequately briefed when they are merely mentioned and not briefed beyond a bare assertion.... Claims are also inadequately briefed when they . consist of conclusory assertions . with no mention of relevant authority and minimal or no citations from the record . As a general matter, the dispositive question in determining whether a claim is adequately briefed is whether the claim is reasonably discernible [from] the record . We are not required to review issues that have been improperly presented to this court through an inadequate brief.... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Citation omitted; internal quotation marks omitted.) Artiaco v. Commissioner of Correction , 180 Conn. App. 243, 248-49, 182 A.3d 1208, cert. denied, 328 Conn. 931, 184 A.3d 758 (2018). In the petitioner's appellate brief, he provides only bare assertions that the habeas court abused its discretion in denying the petition for certification to appeal with respect to his claim that his trial counsel provided ineffective assistance. As we explained previously, "[i]n determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous." (Internal quotation marks omitted.) Sanders v. Commissioner of Correction , supra, 169 Conn. App. at 821-22, 153 A.3d 8. Although the petitioner provides in his brief a "merits" section titled "The Habeas Court Erred in Denying Petitioner's Claim of Ineffective Assistance of Trial Counsel," it contains no analysis pertaining to his trial counsel's performance. Instead, he devotes the section to arguing that the habeas court should have appointed him habeas counsel. Because his brief provides only conclusory assertions that the court abused its discretion in denying his petition for certification to appeal and provided this court with no analysis of how his trial counsel provided ineffective assistance, we decline to review this claim. The appeal is dismissed. In this opinion the other judges concurred. Pursuant to No. 12-115, § 1, of the 2012 Public Acts, subsection (b) of § 52-470 was redesignated as subsection (g). In arguing that it is appropriate for this court to consider the claim under the plain error doctrine, the petitioner cites to Foote v. Commissioner of Correction , supra, 151 Conn. App. at 566-69, 96 A.3d 587. Foote was an appeal brought by a petitioner from the denial of his petition for certification to appeal. Id., 560, 96 A.3d 587. He challenged the court's judgment denying certification to appeal on the ground that the court (1) abused its discretion and (2) committed plain error by failing to inquire adequately into his request for new habeas counsel. Id. This court concluded that the petitioner was unable to challenge the habeas court's judgment denying certification to appeal on the ground that the court abused its discretion by failing to inquire adequately into his request for new habeas counsel because that ground was raised for the first time on appeal. Id., 565-66, 96 A.3d 587. This court, however, then considered whether the habeas court committed plain error by failing to inquire adequately into the petitioner's request for new counsel. Id., 566-69, 96 A.3d 587. Ultimately, this court concluded that the petitioner had failed to demonstrate an error that was "so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." Id., 569, 96 A.3d 587. Although the court in Foote considered the claim of plain error despite the fact that the claim of plain error was not set forth by the petitioner as a ground on which certification should be granted in his petition for certification to appeal, it did not expressly state that the claim was not preserved at trial or otherwise explain why the claim fell within the ambit of the plain error doctrine. We conclude that the claim at issue in the present case, however, was preserved at trial and, thus, is not a claim that falls within the ambit of the plain error doctrine. The petitioner, who properly preserved the issue at his habeas trial, nonetheless chose not to present that issue to the habeas court, by way of his petition for certification to appeal, in order for the court to certify that the issue ought to be reviewed by an appellate court of this state. See General Statutes § 52-470 (g). Although some of our cases have categorized this omission as failing to preserve the claim for review, a petitioner's decision not to include an issue in his petition for certification to appeal that was preserved during the habeas trial itself is more akin to abandoning the claim. To the extent the petitioner is also claiming that the habeas court plainly erred in failing, sua sponte, to suspend trial and appoint counsel after certain testimony was elicited from the petitioner's expert witness at the habeas trial, we deem that claim inadequately briefed and, thus, abandoned. See State v. Buhl , 321 Conn. 688, 724, 138 A.3d 868 (2016) ("[a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly"). To be sure, in this section of his brief, the petitioner argues that he "was denied the opportunity of representation by counsel in his habeas proceeding , let alone the opportunity to have effective representation of counsel in that proceeding. Due to the lack of appointed counsel and the petitioner's lack of understanding of the legal system, trial procedures in particular, the petitioner was unable to prevail at trial." (Emphasis added.)

12510618

FLAGSTAR BANK, FSB v. Christine KEPPLE et al.

Flagstar Bank, FSB v. Kepple

2019-06-04

AC 41185

628

641

210 A.3d 628

210

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

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

FLAGSTAR BANK, FSB v. Christine KEPPLE et al.

FLAGSTAR BANK, FSB v. Christine KEPPLE et al. AC 41185 Appellate Court of Connecticut. Argued February 4, 2019 Officially released June 4, 2019 Albert L.J. Speziali, with whom, on the brief, were Paul M. Geraghty, New London, and Mark R. Kepple, self-represented, for the appellants (defendants). Scott H. Bernstein, for the appellee (plaintiff). DiPentima, C.J., and Alvord and Moll, Js.

6166

38326

MOLL, J. The defendants, Christine Kepple and Mark Kepple, appeal from the judgment of foreclosure by sale rendered in favor of the plaintiff, Flagstar Bank, FSB. On appeal, the defendants claim that the trial court lacked subject matter jurisdiction over this action as a result of the plaintiff's alleged lack of standing. We disagree and, accordingly, affirm the judgment of the trial court. The following facts and procedural history are relevant to the resolution of the defendants' claim on appeal. The plaintiff filed this action in February, 2011, seeking to foreclose a residential mortgage on property located at 140 Elm Street in Stonington. According to the complaint, on November 19, 2004, Mark Kepple executed a promissory note payable to the order of Atlantis Mortgage Co., Inc., in the amount of $ 322,700. To secure the note, the defendants executed a mortgage on the property in favor of Mortgage Electronic Registration Systems, Inc., as nominee for Atlantis Mortgage Co., Inc. The complaint alleged that the plaintiff was the owner of the note and mortgage by virtue of an assignment of the mortgage dated February 3, 2011. The complaint further alleged that the note was in default and that the plaintiff was exercising its option to declare the entire balance on the note due and payable. On October 23, 2017, the court rendered a judgment of foreclosure by sale. The court thereafter denied the defendants' motion to reconsider, and the defendants filed the present appeal. On appeal, the defendants claim that the trial court lacked subject matter jurisdiction over this action because of the plaintiff's alleged lack of standing. Specifically, the defendants argue that (1) the plaintiff merely was the holder of the note and not the owner of the debt, and (2) the evidence in the record, taken as a whole, rebutted the presumption that the plaintiff, as the holder of the note, was the owner of the debt. We disagree. At the outset, we note that "[t]he issue of standing implicates [the] court's subject matter jurisdiction.... Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.... When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . Because standing implicates the court's subject matter jurisdiction, the plaintiff ultimately bears the burden of establishing standing." (Citation omitted; internal quotation marks omitted.) JPMorgan Chase Bank, National Assn . v. Simoulidis , 161 Conn. App. 133, 142, 126 A.3d 1098 (2015), cert. denied, 320 Conn. 913, 130 A.3d 266 (2016). "Because a determination regarding the trial court's subject matter jurisdiction raises a question of law, [the standard of] review is plenary." (Internal quotation marks omitted.) Id. "In addition, because standing implicates the court's subject matter jurisdiction, the issue of standing is not subject to waiver and may be raised at any time." (Internal quotation marks omitted.) U.S. Bank, National Assn . v. Schaeffer , 160 Conn. App. 138, 145, 125 A.3d 262 (2015). The following additional facts are necessary for the resolution of the defendants' claim. On March 14, 2012, the plaintiff filed a motion for default for failure to disclose a defense, which the court, Martin, J ., granted on March 26, 2012. On April 3, 2012, Mark Kepple filed (1) an appearance as a self-represented party in lieu of the appearance filed by his initial attorney and (2) a motion for inclusion in the foreclosure mediation program. On August 13, 2012, Attorney Paulann Hosler Sheets filed an appearance for the defendants in addition to the self-represented appearance filed by Mark Kepple. The defendants then filed a motion to open the default, an answer, and a motion to dismiss, claiming that the plaintiff lacked standing to prosecute the action because it did not own the underlying debt. In support of the motion to dismiss, the defendants filed an affidavit of Mark Kepple with accompanying exhibits. In the affidavit, Mark Kepple stated facts in support of the defendants' claim that Federal Home Loan Bank of Indianapolis was the owner of the mortgage and that the plaintiff lacked standing to bring this action. The defendants also submitted a document produced by Mortgage Electronic Registration Systems, Inc., indicating that Federal Home Loan Bank of Indianapolis was the "investor." At a hearing on the defendants' motion to dismiss on September 7, 2012, the defendants argued that the owner of the underlying debt was Federal Home Loan Bank of Indianapolis and not the plaintiff. The plaintiff responded by arguing that it had standing to bring the foreclosure action as the holder of the note. The plaintiff also argued that the affidavit submitted in support of the motion to dismiss contained inadmissible hearsay. In a memorandum of decision dated September 21, 2012, the court, Cosgrove, J., denied the defendants' motion to dismiss, concluding that the plaintiff had standing to commence the action. In its decision, the court noted that the plaintiff had produced a copy of the note, endorsed by Atlantis Mortgage Co., Inc., to the plaintiff, and established a prima facie case for foreclosure against the defendants. With regard to Mark Kepple's affidavit, the court stated: "Absent some exception to the hearsay rule, which is not present here, the statements of third parties contained within Mark Kepple's affidavit constitute hearsay and cannot be considered by the court for the truth of the matters contained therein. Even if considered . Kepple's statement would not, alone, rebut the presumption created by possession of the note in this case. In viewing the remainder of the available evidence, the court finds that the defendants failed to rebut the presumption that the plaintiff owns the underlying debt, and thus the plaintiff has standing to commence the present foreclosure action." On October 2, 2012, the court denied the defendants' motion to open the default and granted the defendants' motion to participate in the foreclosure mediation program. The parties participated in the foreclosure mediation program from October, 2012 through August, 2014. The final foreclosure mediation took place on August 6, 2014. The foreclosure mediator's report from that mediation stated in part that "[t]he parties have been in mediation since [October 26, 2012] and the same issues are brought up at every mediation without resolution." Following the denial of the defendants' motion to dismiss, and after almost two years in the foreclosure mediation program, the defendants continued to raise the plaintiff's alleged lack of standing in various proceedings over the next several years. On August 21, 2014, the defendants filed a petition for reinclusion in the foreclosure mediation program and a motion to order the plaintiff to produce documentation of a purported investor restriction. In the latter motion, the defendants contended that the plaintiff repeatedly had denied their request for a loan modification because of an alleged investor restriction and sought, inter alia, an order that the plaintiff produce evidence of the purported investor restriction. On September 4, 2014, the defendants filed a second motion to open the default for failure to disclose a defense. In that motion, the defendants argued that they were waiting for the plaintiff to disclose any agreements between itself and Federal Home Loan Bank of Indianapolis regarding the servicing, including modification, of the defendants' loan. According to the defendants, these documents were relevant to their defense that the plaintiff lacked standing to bring this action. On September 8, 2014, a hearing took place on the defendants' petition for reinclusion in the foreclosure mediation program and the defendants' motion to order the plaintiff to produce documentation of a purported investor restriction. At that hearing, counsel for the defendants argued that this matter should be referred back to mediation and that the court should order the plaintiff to produce documentation regarding the relationship and the restrictions between the investor, Federal Home Loan Bank of Indianapolis, and the plaintiff. The plaintiff argued in response that the defendants were not entitled to any of the documents requested and that the defendants were trying to interfere with the contractual relationship between the plaintiff and Federal Home Loan Bank of Indianapolis. The plaintiff further argued that the defendants were pursuing such discovery as a means to effectuate a settlement. During the argument on the defendants' motions, the court engaged in a colloquy with counsel for the plaintiff regarding the distinction between the owner and the holder of the note. On September 17, 2014, the court denied the defendants' petition for reinclusion in the foreclosure mediation program, stating: "This case has been through an extended mediation process. Most recently, the mediator filed a report with the court indicating in part that the mortgagor was denied relief due to 'debt to income ratio.' Further, the mediator stated she had no material reason to disagree with the response. The court cannot find that further mediation has a high probability of success." On September 17, 2014, the court also denied the defendants' motion to order the plaintiff to produce documentation of a purported investor restriction. On October 14, 2014, during a hearing on the defendants' second motion to open the default, the court questioned counsel for the plaintiff regarding whether the plaintiff was a bank or a servicer of the loan. In response, counsel for the plaintiff stated: "They're a bank and the servicer of this loan. They're also the holder of the note authorized to commence the foreclosure action which has already been resolved by the prior motion to dismiss, which is a standing issue [that] counsel's attempting to raise again, which has already been denied." On December 5, 2014, the court denied the defendants' second motion to open the default. On December 19, 2014, the defendants filed a motion for a stay, contending that this action was barred by a September 29, 2014 consent order entered into between the federal Consumer Financial Protection Bureau and the plaintiff regarding deceptive and unfair practices committed by the plaintiff. On January 21, 2015, the defendants filed an affidavit of Mark Kepple in support of their motion to stay the foreclosure proceedings. The defendants attached as exhibits (1) some of the same documents that were previously found to be inadmissible hearsay by the trial court when it ruled on the defendants' motion to dismiss, and (2) additional correspondence from the plaintiff to the defendants. Specifically, Mark Kepple included a letter from the plaintiff to the defendants dated August 8, 2012, identifying Federal Home Loan Bank of Indianapolis as the investor of the mortgage loan, and letters from the plaintiff dated July 22, August 27, and November 2, 2013, in which the plaintiff identified itself as the servicer of the defendants' mortgage loan. The latter two letters each stated that the defendants were "not approved for loss mitigation options by the investor/owner of the loan." On December 24, 2014, the plaintiff filed an objection to the defendants' motion for a stay, along with an affidavit of Susan Dowd, an officer of the plaintiff. A hearing on the motion for a stay took place on January 26, 2015. During a colloquy with counsel for the defendants at the conclusion of the hearing, the court commented that it appeared that the owner of the note was Federal Home Loan Bank of Indianapolis. On January 26, 2015, the court entered a stay in this matter without prejudice to the plaintiff demonstrating that the defendants' loan was not covered by the consent order entered into by the plaintiff with the Consumer Financial Protection Bureau. On May 19, 2016, the plaintiff filed a motion for an order requesting that the court lift the stay. In that motion, the plaintiff maintained that (1) the defendants' loan was not covered by the consent order and (2) even if it were covered, which was denied, the plaintiff had offered the defendants the very relief they had been seeking, namely, a new loan modification review. In this connection, the motion detailed the efforts that the plaintiff had made between January, 2015, and May, 2016, to obtain a completed loan modification application from the defendants; the defendants did not, however, submit a loan modification application. On July 25, 2016, the court granted the plaintiff's motion and lifted the stay. On August 3, 2016, the plaintiff filed a motion to strike the defendants' counterclaims, which sounded in negligence, breach of the duty of good faith and fair dealing, negligent misrepresentation, and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. On December 20, 2016, the court, Nazzaro, J ., granted the plaintiff's motion to strike. In its memorandum of decision, the court stated that "[t]he note and mortgage are now owned by the plaintiff by virtue of assignment on February 3, 2011." On October 10, 2017, the plaintiff filed a motion for a judgment of strict foreclosure and finding of entitlement of possession. In connection with the motion, the plaintiff filed the affidavit of Vanessa M. Ellison, a loan administration analyst employed by the plaintiff. In the affidavit, Ellison stated, inter alia, that she was "duly authorized to make this Affidavit for [the plaintiff] in its capacity as the holder of the note and servicer of the mortgage loan ." On October 17, 2017, the defendants filed an objection to the plaintiff's motion for a judgment of strict foreclosure; the defendants did not reassert therein that the plaintiff lacked standing to bring this action. On October 23, 2017, at a hearing on the plaintiff's motion for a judgment of strict foreclosure, the defendants, through counsel, withdrew their objection to the plaintiff's motion. Thereupon, the court stated: "All right. I have a promissory note, and it-November 19, 2004, in favor of Atlantis Mortgage Company, Inc. It's a wet-ink original, and it's endorsed in favor of [the plaintiff] by Atlantis Mortgage Company [Inc.] through the Independence Community Bank, attorney-in-fact. And then it is endorsed in blank by [the plaintiff]. "And the mortgage has been recorded on the land records contemporaneously with the closing. And I have an assignment of mortgage from [Mortgage Electronic Registration Systems, Inc.,] as nominee for Atlantis [Mortgage Company, Inc.] in favor of [the plaintiff]. That assignment is dated February 3, 2011.... So I'll find that the plaintiff is the holder of the note and mortgage that they seek to foreclose." Thereafter, the court rendered a judgment of foreclosure by sale. On November 10, 2017, the defendants filed a motion to reconsider the court's order rendering a judgment of foreclosure by sale. In the motion, the defendants argued that Mark Kepple had come to the courtroom on October 23, 2017, but, following a discussion with counsel for the plaintiff, became ill and had to leave and, therefore, was unable to attend the hearing. The defendants also argued that, on the basis of a colloquy between counsel for the plaintiff and the court at a hearing on September 8, 2014; see footnote 6 of this opinion; the court had made a judicial finding that the plaintiff did not own the debt and the plaintiff had admitted that it did not own the debt. The plaintiff filed an objection to the defendants' motion to reconsider. On December 4, 2017, the court denied the defendants' motion, stating: "The issues raised by the defendants have previously been presented to the court in various contexts. Defendants' counsel withdrew objections. Appropriate grounds for reconsideration or reargument have not been presented." This appeal followed. On January 22, 2018, while this appeal was pending, the plaintiff filed a motion for an order conditioning the continuation of the appellate stay pursuant to Practice Book § 61-11 upon the defendants reimbursing the plaintiff for its payments of property taxes and insurance premiums in connection with the subject property during the pendency of the appeal. On April 2, 2018, this court referred the motion and the defendants' opposition thereto to the trial court for consideration. On May 31, 2018, the trial court, Cosgrove, J ., issued its memorandum of decision, concluding that it would be equitable to condition the maintenance of the appellate stay upon the defendants' prompt reimbursement of property taxes and insurance premiums paid by the plaintiff during the pendency of the appeal. In its decision, the court stated: "This court always examines the note and mortgage, endorsements or allonges and any assignments of mortgage recorded in the land records prior to the entry of judgment. The issues of standing had been raised and addressed several times earlier in this litigation and now is the thrust of the [defendants'] appeal.... The court was presented with the original note and mortgage documents and examined the allonges, endorsements and assignments. No credible, persuasive or admissible evidence has been presented to rebut the [plaintiff's] standing." Against the backdrop of this extensive factual and procedural background, we now consider the defendants' claim that the trial court lacked jurisdiction over this action on the basis of the plaintiff's alleged lack of standing. "The ability to enforce a note in Connecticut is governed by the adopted provisions of the Uniform Commercial Code. Pursuant to General Statutes § 42a-3-301, a [p]erson entitled to enforce an instrument means . the holder of the instrument . When a note is endorsed in blank . the note becomes payable to the bearer of the note. See General Statutes § 42a-3-205 (b) ; see also RMS Residential Properties, LLC v. Miller , 303 Conn. 224, 231, 32 A.3d 307 (2011), overruled in part on other grounds by J.E. Robert Co. v. Signature Properties, LLC , [supra, 309 Conn. at 325 n.18, 71 A.3d 492 ]. When a person or entity has possession of a note endorsed in blank, it becomes the valid holder of the note. General Statutes § 42a-1-201 (b) (21) (A). Therefore, a party in possession of a note, endorsed in blank and thereby made payable to its bearer, is the valid holder of the note, and is entitled to enforce the note.... "In RMS Residential Properties, LLC v. Miller , supra, 303 Conn. at 231, 32 A.3d 307, our Supreme Court stated that to seek enforcement of a note through foreclosure, a holder must be able to demonstrate it is the owner of the underlying debt. It noted, however, that a holder of a note is presumed to be the rightful owner of the underlying debt, and that unless the party defending against the foreclosure action rebuts that presumption, the holder has standing to foreclose.... A holder merely needs to produce the note to establish that presumption. The production of the note establishes his case prima facie against the [defendant] and he may rest there.... It [is] for the defendant to set up and prove the facts which limit or change the plaintiff's rights." (Citations omitted; emphasis in original; footnotes omitted; internal quotation marks omitted.) U.S. Bank, National Assn . v. Schaeffer , supra, 160 Conn. App. at 146-47, 125 A.3d 262. "The rules for standing in foreclosure actions when the issue of standing is raised may be succinctly summarized as follows. When a holder seeks to enforce a note through foreclosure, the holder must produce the note. The note must be sufficiently endorsed so as to demonstrate that the foreclosing party is a holder, either by a specific endorsement to that party or by means of a blank endorsement to bearer. If the foreclosing party shows that it is a valid holder of the note and can produce the note, it is presumed that the foreclosing party is the rightful owner of the debt. That presumption may be rebutted by the defending party, but the burden is on the defending party to provide sufficient proof that the holder of the note is not the owner of the debt, for example, by showing that ownership of the debt has passed to another party. It is not sufficient to provide that proof, however, merely by pointing to some documentary lacuna in the chain of title that might give rise to the possibility that some other party owns the debt. In order to rebut the presumption, the defendant must prove that someone else is the owner of the note and debt. Absent that proof, the plaintiff may rest its standing to foreclose on its status as the holder of the note." (Emphasis in original; footnote omitted.) Id., at 150, 125 A.3d 262. In the event of such proof, "the burden would shift back to the plaintiff to demonstrate that the owner has vested it with the right to receive the money secured by the note." J.E. Robert Co. v. Signature Properties, LLC , supra, 309 Conn. at 325 n.18, 71 A.3d 492. The defendants argue that they successfully rebutted the presumption that the plaintiff, as the holder of the note, is the owner of the debt, and, therefore, has standing to seek enforcement of the note through foreclosure. The defendants rely in part on a foreclosure mediator's report filed on November 27, 2013, in which the mediator referred to the plaintiff as the servicer of the loan and Federal Home Loan Bank of Indianapolis as the investor. The defendants also rely on the letters from the plaintiff to the defendants in which the plaintiff referred to itself as the servicer of the loan and to Federal Home Loan Bank of Indianapolis as the investor. The defendants specifically refer to the letter dated November 4, 2014, indicating that Mark Kepple had communicated directly with Federal Home Loan Bank of Indianapolis. See footnote 8 of this opinion. Additionally, the defendants contend that statements of counsel for the plaintiff-made at hearings during the litigation and indicating that (1) a contractual relationship existed between the plaintiff and Federal Home Loan Bank of Indianapolis and (2) the plaintiff was the servicer of the loan-constituted judicial admissions. Finally, the defendants argue that the court's statement that "it seem[ed] . that the owner as opposed to the holder of the note [was] . Federal Home Loan Bank [of Indianapolis]," made during the hearing on the defendants' motion to stay; see footnote 10 of this opinion; constituted a factual finding that Federal Home Loan Bank of Indianapolis was the owner of the underlying debt. The plaintiff counters that the defendants failed to rebut the presumption of standing in the plaintiff's favor. We agree with the plaintiff that the defendants failed to rebut the presumption that the plaintiff was the owner of the debt. As a threshold matter, we note that the defendants do not challenge on appeal any particular ruling of the trial court relating to the plaintiff's standing. Rather, they rely on a compilation of purported evidence cherry picked from the record, which they argue should be "taken as a whole" on appeal. Notably, when the trial court rendered judgment of foreclosure by sale on October 23, 2017, the defendants did not renew their motion to dismiss based on the plaintiff's alleged lack of standing and did not present to the trial court, during the October 23, 2017 hearing or at any other time, the compilation of purported evidence on which they rely on appeal. Instead, they withdrew their objection to the plaintiff's motion for judgment of foreclosure at the October 23, 2017 hearing. See Wells Fargo Bank, N.A . v. Tarzia , 150 Conn. App. 660, 665-66, 92 A.3d 983 (rejecting defendant's argument that plaintiff failed to state claim for strict foreclosure by pleading and proving its status as holder of note and mortgage when defendant did not file opposition to plaintiff's motion for summary judgment and, therefore, never attempted to rebut presumption that plaintiff owned debt and had right to foreclose mortgage), cert. denied, 314 Conn. 905, 99 A.3d 635 (2014). Moreover, in the six years following the court's denial of their motion to dismiss on September 21, 2012, which the defendants do not challenge on appeal, the defendants apparently did not seek an evidentiary hearing in order to proffer to the trial court the compilation of purported evidence on which they now rely. Their failure to do so deprived the plaintiff of the ability to present evidence demonstrating, in the event the presumption was rebutted, "that the owner has vested it with the right to receive the money secured by the note." J.E. Robert Co. v. Signature Properties, LLC , supra, 309 Conn. at 325 n.18, 71 A.3d 492. The defendants' failure to present the compilation in an evidentiary hearing also deprived the trial court of the ability to consider the proffered evidence, rule on its admissibility, and make specific findings relating to whether the presumption had been rebutted. Although it is axiomatic that subject matter jurisdiction can be raised at any time, the defendants' attempt to have this court make evidentiary determinations regarding their compilation of purported evidence and make factual findings based thereon is wholly improper. See Gianetti v. Norwalk Hospital , 266 Conn. 544, 560, 833 A.2d 891 (2003) ("[o]rdinarily it is not the function of [our Supreme Court] or [this court] to make factual findings"). Accordingly, we reject the defendants' claim. We also highlight certain reviewability problems with the defendants' compilation of purported evidence. We initially note that some of the statements upon which the defendants rely were deemed inadmissible hearsay by the trial court when it denied the defendants' motion to dismiss on September 21, 2012. The defendants do not address those evidentiary determinations on appeal and, thus, they remain undisturbed. The subsequent letters from the plaintiff to the defendants, in which the plaintiff identified itself as the servicer of the defendants' loan, were attached as exhibits to Mark Kepple's affidavit filed in support of the defendants' motion to stay. These letters were not introduced into evidence. Moreover, we question the probative value of the correspondence from the plaintiff to the defendants and the statements in the foreclosure mediator's report identifying the plaintiff as the servicer of the loan and Federal Home Loan Bank of Indianapolis as the investor. In JPMorgan Chase Bank, National Assn. v. Simoulidis , supra, 161 Conn. App. at 139-40, 147, 126 A.3d 1098, we affirmed the trial court's finding that the deposition testimony of a home lending research officer employed by the plaintiff, who testified that the plaintiff was the holder of the note, servicer, and mortgagee, and that Freddie Mac was the investor of the debt, did not rebut the presumption in favor of the plaintiff, where the employee did not define what an "investor" is in this context and did not testify that the plaintiff was not the owner of the debt. As in Simoulidis , the documents upon which the defendants rely in this case do not define the role of the investor with regard to the loan. In addition, with respect to the foreclosure mediator's report, the defendants do not explain how the mediator's statement in such report would be admissible where it is not based on personal knowledge regarding ownership of the debt. With regard to whether the statements of counsel for the plaintiff-in which counsel indicated that a contractual relationship existed between the plaintiff and Federal Home Loan Bank of Indianapolis and that the plaintiff was the servicer of the loan-constituted judicial admissions, we note that "[t]he determination of whether a party's statement is a judicial admission or an evidentiary admission is a question of fact for the trial court." (Internal quotation marks omitted.) O & G Industries, Inc . v. All Phase Enterprises, Inc ., 112 Conn. App. 511, 524, 963 A.2d 676 (2009). A witness or a party should not be presumed to have made a judicial admission without a finding of the trial court. Id. In the present case, the defendants have not pointed to any finding by the trial court indicating that these statements were judicial admissions. In the absence of such a finding, we cannot conclude that these statements are conclusive regarding the plaintiff's standing to bring the action. Finally, we disagree with the defendants that the court's statement, made during the hearing on the defendants' motion to stay and indicating that "it seem[ed] . that the owner as opposed to the holder of the note [was] . Federal Home Loan Bank [of Indianapolis]," constitutes a finding of fact. This conclusion necessarily follows from the court's repeated decisions indicating that the defendants had not presented evidence sufficient to rebut the presumption that the plaintiff had standing. On the basis of our review of the record, we conclude that at no time did the defendants rebut the presumption enjoyed by the plaintiff and, thus, the plaintiff had standing to prosecute this foreclosure action. The judgment is affirmed. In this opinion the other judges concurred. Bank of America N.A., Westerly Hospital, and the United States of America also were named as defendants in the foreclosure action. Bank of America N.A. and Westerly Hospital, which were defaulted for failure to appear in the trial court, have not appealed from the judgment of foreclosure or participated in the present appeal. The plaintiff withdrew this action as to the United States of America in the trial court. Accordingly, we refer to Christine Kepple and Mark Kepple as the defendants in this opinion. The defendants also argue that the plaintiff failed to produce any evidence that it was authorized by Federal Home Loan Bank of Indianapolis, as the purported owner of the debt, to prosecute the action. In light of our conclusion that the defendants failed to rebut the presumption that the plaintiff was the owner of the debt, we need not address this issue. Specifically, Mark Kepple stated that since April, 2011, he had pursued an application for a loan modification and that, after being told by the plaintiff that his application was complete, he was told that certain documents were stale and needed to be updated. According to the affidavit, on March 2, 2012, the plaintiff informed Mark Kepple that it was unable to proceed with his application, as he had not returned some of the missing documents, and that it deemed the application withdrawn. Mark Kepple immediately contacted the plaintiff about the mistake and was informed that his application was, in fact, complete and had been referred to the underwriting department. Mark Kepple also stated that on July 31, 2012, he called the plaintiff's loss mitigation department, as he had been doing on a monthly basis, and spoke to an individual who informed him that he would have a decision on his application within thirty days. On August 6, 2012, however, Mark Kepple received a letter from the plaintiff dated July 25, 2012, informing him that his loan modification application had been denied because it did " 'not fulfill investor requirements/guidelines.' " Upon inquiry with the plaintiff's loss mitigation department, Mark Kepple spoke with a different individual, who informed him that the investor of the loan was Federal Home Loan Bank of Indianapolis. According to the affidavit, Mark Kepple then called Federal Home Loan Bank of Indianapolis and spoke with Mark Holt in the mortgage purchasing department, who confirmed that Federal Home Loan Bank of Indianapolis was the investor and had bought the note. The defendants filed an amended affidavit of Mark Kepple, with the permission of the court, following oral argument on the defendants' motion to dismiss. The transcript reveals the following colloquy: "The Court: There's a-let me just hear on that simple issue. Is it your position that the plaintiff, Flagstar, [FSB] is the owner of the note as of the date that this action was commenced in February of 2011? "[The Plaintiff's Counsel]: Our position is that Flagstar, [FSB] as the commencement of this action, because of assignment they're the-they have the right to enforce the debt, and as the holder of the negotiable interest, we have every right to initiate this foreclosure proceeding." The transcript reveals the following: "The Court: What about the issue if there's a question, as I have read this briefly, that the investor has a restriction, and that investor is the owner of the note. "[The Plaintiff's Counsel]: Correct, the owner of the debt. "The Court: The owner of the note, what's the difference? I don't get it. "[The Plaintiff's Counsel]: There's a difference between holder and owner, Your Honor. There's a distinct difference between holder and owner. "The Court: You're drawing that distinction between that and a servicer? "[The Plaintiff's Counsel]: No, Your Honor. There's a difference between-a party can be a holder- "The Court: Educate me, what's the difference? "[The Plaintiff's Counsel]: Look at the [J.E. Robert Co. Inc . v. Signature Properties, LLC , 309 Conn. 307, 71 A.3d 492 (2013) ] decision, Your Honor. It states that the party who's holding the note has the opportunity to enforce that note, provided that they have the authority to do so. That's not the question that's before this court today; the issue that's raised in J.E. [Robert ] is not what's before the court." The court's order stated: "The defendants have not demonstrated good cause for the opening of the default for failure to disclose a defense that was entered approximately two and one-half years earlier." The defendants also attached a letter from the plaintiff to the defendants dated November 4, 2014. In addition to referencing Federal Home Loan Bank of Indianapolis as the investor and the plaintiff as the servicer of the defendants' loan, this letter indicated that, after the defendants' application for a loan modification had been denied, Mark Kepple contacted and spoke with Federal Home Loan Bank of Indianapolis regarding what he would need to do to have his loan modification application reconsidered. In the affidavit, Dowd stated that on September 29, 2014, the plaintiff had entered into a consent order with the Consumer Financial Protection Bureau pursuant to which certain loss mitigation actions were to be taken by the plaintiff, including reviews of prior loss mitigation decisions. Dowd further stated, however, that the defendants' loan was not among the loans subject to the consent order requirement to review prior loss mitigation decisions. The transcript reveals the following: "[The Defendants' Counsel]: I mean, they have not amended their pleading, their complaint, to delete the claim that they're an owner. "The Court: Well . it seems to me from reviewing the extensive work that [Mark] Kepple has done that there has been identification that the owner as opposed to the holder of the note is this Federal Home Loan Bank from the-I can't remember the precise name. "[The Defendants' Counsel]: Federal Home Loan Bank of Indianapolis." On February 14, 2017, after the granting of the plaintiff's motion to strike and before the plaintiff filed its motion for judgment of strict foreclosure, the trial court, Nazzaro, J. , granted the plaintiff's motion for a protective order with regard to discovery requests served by the defendants seeking information concerning the plaintiff's standing in the foreclosure action. We note that the defendants' counsel attended the hearing. The court also stated: "Although the . defendants' attorney has made strenuous arguments to the court regarding the standing of the plaintiff to pursue this foreclosure action over the course of almost seven years of litigation at the trial court level, none of these arguments have been supported by evidence or persuasive to the court for the reasons that were previously stated in the memoranda of decision resolving the motions filed by the defendant[s]." The foreclosure mediator's report stated that "[the plaintiff] is the servicer of the loan but does not have the authority to approve any retention options. All decisions must be made by the investor, Federal Home Loan Bank [of Indianapolis]. Federal Home Loan Bank [of Indianapolis] reviews the application based on the information [the plaintiff] sends them for review." The statements were made by counsel for the plaintiff during hearings on the defendants' petition for reinclusion in the foreclosure mediation program, the defendants' motion to order the plaintiff to produce documentation of a purported investor restriction, and the defendants' second motion to open the default. "Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings.... They excuse the other party from the necessity of presenting evidence on the fact admitted and are conclusive on the party making them.... The statement relied on as a binding admission [however] must be clear, deliberate and unequivocal." (Citation omitted; internal quotation marks omitted.) O & G Industries, Inc . v. All Phase Enterprises, Inc. , supra, 112 Conn. App. at 523 n.5, 963 A.2d 676. Although the trial court in this case did not make a finding that the statements of counsel for the plaintiff constituted judicial admissions, it appears that the trial court did not consider the statements to be conclusive regarding the plaintiff's standing to bring the present action.

12503387

Clifton OWENS v. COMMISSIONER OF CORRECTION

Owens v. Comm'r of Corr.

2018-12-11

AC 41012

883

883

196 A.3d 883

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

Clifton OWENS v. COMMISSIONER OF CORRECTION

Clifton OWENS v. COMMISSIONER OF CORRECTION AC 41012 Appellate Court of Connecticut. Argued November 26, 2018 Officially released December 11, 2018

27

185

Per Curiam. The appeal is dismissed.

12503381

STATE of Connecticut v. Joesenier RUIZ-PACHECO

State v. Ruiz-Pacheco

2018-09-25

AC 39605

805

839

196 A.3d 805

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

STATE of Connecticut v. Joesenier RUIZ-PACHECO

STATE of Connecticut v. Joesenier RUIZ-PACHECO AC 39605 Appellate Court of Connecticut. Argued November 28, 2017 Officially released September 25, 2018 Pamela S. Nagy, assistant public defender, for the appellant (defendant). Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, Warren C. Murray, supervisory assistant state's attorney, and Laurie N. Feldman, special deputy assistant state's attorney, for the appellee (state). Prescott, Elgo and Harper, Js.

16057

98076

ELGO, J. The defendant, Joesenier Ruiz-Pacheco, appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the first degree as a principal in violation of General Statutes § 53a-59 (a) (1), two counts of assault in the first degree as an accessory in violation of General Statutes § 53a-59 (a) (1) and 53a-8, one count of attempt to commit murder in violation of General Statutes § 53a-54, and one count of conspiracy to commit assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and 53a-48. On appeal, the defendant claims that (1) his conviction of the assault counts violates the double jeopardy clause; (2) the jury instructions on attempted murder were improper; (3) the court's repeated instruction that the jury should consider the lesser included offenses even if the state failed to disprove self-defense on the greater offenses misled the jury; and (4) he was deprived of a fair trial due to prosecutorial improprieties that affected the critical issues of self-defense and third-party culpability. We affirm the judgment of the trial court. The following facts, which the jury reasonably could have found, and procedural history are relevant to the defendant's appeal. On November 30, 2012, the defendant went to El Milenio, a nightclub in Danbury, with his brother, Eliezer, and his friends, Raymond Martinez and Eiliana Martinez. A group of women, Dumilka Adames, Samantha Medina, Petra Mendez, Carina Amaro, and Rita Santos, also attended the nightclub. At approximately 2 a.m. on December 1, 2012, the nightclub closed and the group of women walked to their cars, which were parked in the adjacent C-Town grocery store parking lot. Kenneth Tucker, who had attended a different nightclub, was waiting in the parking lot to meet up with the group of women. The defendant and his associates also walked to the C-Town grocery store parking lot. Adames got into Santos' car with Tucker. Medina and Mendez got into Amaro's car. At some point, the defendant and Eliezer approached Amaro's car. Eliezer and Mendez exchanged words. Medina, the defendant's former girlfriend, got out of the car and argued with him. The defendant then punched Medina in the face and put her in a headlock. Other people in the parking lot, including Tucker and Luis Rodriguez, another bystander, saw the defendant put Medina in a headlock. Medina yelled at the defendant to let her go. Tucker punched the defendant, and the defendant released Medina from the headlock. Tucker, the defendant and Eliezer then immediately began to fight with their fists. Rodriguez also entered the fray after he saw the defendant hit Medina. At some point during the fight, the defendant and Eliezer went to their car to arm themselves; Eliezer obtained a knife for himself from the car and handed a knife to the defendant. Tucker and Rodriguez were unarmed. Throughout the course of the fight in the parking lot, the defendant and Eliezer stabbed Tucker multiple times. The defendant also stabbed Rodriguez two or three times. When the defendant and Eliezer walked away, Rodriguez said something to the brothers. In response, the defendant and Eliezer ran after Rodriguez, and Eliezer stabbed Rodriguez in the back. After Eliezer stabbed him, Rodriguez tumbled down a portion of grass between the parking lot and the sidewalk. The defendant then approached Rodriguez, who was in the street unable to move as a result of his injuries, stabbed him in the left side of the chest and said: "This is for hitting my brother." The defendant and Eliezer thereafter fled the scene together in a vehicle. Two off-duty police officers witnessed a portion of the fight and rendered medical assistance to Rodriguez after he was stabbed. Rodriguez sustained five stab wounds and Tucker sustained three stab wounds. The defendant was arrested later that night. The police took the defendant's statement in which the defendant admitted that he "stabbed a person in self-defense ." The state charged the defendant with two counts of assault in the first degree as a principal in violation of § 53a-59 (a) (1), two counts of assault in the first degree as an accessory in violation of § 53a-59 (a) (1) and 53a-8, two counts of attempted murder in violation of § 53a-54, and two counts of conspiracy to commit first degree assault in violation of § 53a-59 (a) (1) and 53a-48. At trial, the state presented eyewitness testimony, including that of Mendez, Adames, Tucker, Rodriguez, Liybin Fernandez, Officer Kristin Lindstrom, and Officer David Dubord. Following a jury trial, the defendant was found guilty on all counts except for one count of attempted murder (count five), and the jury's guilty verdict on one count of conspiracy to commit assault in the first degree (count eight) was vacated at sentencing. This appeal followed. I The defendant first claims that his conviction of assault in the first degree as a principal pursuant to counts two and six of the information, and assault in the first degree as an accessory pursuant to counts three and seven of the information, violates his fifth and fourteenth amendment right against double jeopardy. Accordingly, he contends that his conviction of the two counts of assault as an accessory should be vacated. The state argues that because the defendant's conviction of the four counts was based on different acts, his double jeopardy rights were not violated. We agree with the state. The following additional facts are relevant to our resolution of the defendant's claim. The information in the present case charged the defendant with four separate counts of first degree assault. In relevant part, the information contained one count each of assault in the first degree as a principal and assault in the first degree as an accessory with respect to the stabbing injuries suffered by Rodriguez, and separate counts of assault in the first degree as a principal and assault in the first degree as an accessory with respect to the stabbing injuries sustained by Tucker. The defendant never sought a bill of particulars. In discussing the nature of the charges in its closing argument, the state argued that there were many possible combinations whenever there are at least two persons stabbing two victims and that multiple counts were appropriate in this case "to accommodate all those situations." The state argued that there was evidence that both the defendant and his brother, Eliezer, armed themselves with knives during the conflict and that both victims were stabbed multiple times. According to the prosecutor, the jury had the obligation of sorting out the conflicting evidence presented and to determine whether the defendant himself had stabbed both victims or had helped his brother stab the victims "just by being there with the knife himself." The state did not expressly rule out that some combination was also possible. In fact, at no time did the state suggest to the jury that it was proceeding on a theory of alternative liability or that the jury was limited to finding the defendant guilty either solely as a principal or solely as an accessory with respect to the two victims. In her closing argument, defense counsel also noted the conflicting evidence that existed with respect to who had stabbed each of the victims and argued that it was the jury's duty to reach a determination on the basis of the evidence before it. The defense theory was that it was Eliezer who stabbed the victims, not the defendant, but that if the jury found otherwise, it should still find the defendant not guilty because he had acted in self-defense or in defense of others. At no point did the defense argue to the jury that if it found the defendant guilty of assaulting the victims as a principal, it could not also find him guilty of acting as an accessory. In its instructions to the jury regarding the charges against the defendant, the court told the jury that the defendant was "entitled to and must be given by you a separate and independent determination of whether he's guilty or not guilty as to each of the counts" charged, and that "[e]ach of the counts charged is a separate crime." The defendant did not object to the instruction given by the court or ask for clarification about whether he potentially could be found guilty on all counts or whether certain counts were pleaded only in the alternative. With that background in mind, we address the reviewability of the defendant's claim. The defendant acknowledges that he failed to raise any double jeopardy claim before the trial court and, thus, seeks review of his claim pursuant to State v. Golding , 213 Conn. 233, 567 A.2d 823 (1989). Golding provides 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 . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis omitted; footnote omitted.) Id., at 239-40, 567 A.2d 823 ; see In re Yasiel R ., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding ). We conclude that the first two prongs of the Golding test have been met because the record before us is adequate to review the defendant's claim and a double jeopardy claim raises an issue of constitutional magnitude. See State v. Estrada , 71 Conn. App. 344, 357, 802 A.2d 873, cert. denied, 261 Conn. 934, 806 A.2d 1068 (2002). We, thus, direct our attention to the third prong and whether the defendant's claimed double jeopardy violation exists. Before turning to our discussion of the law relative to the defendant's double jeopardy claim, it is important to emphasize what the defendant is not claiming. He is not claiming that there was insufficient evidence from which the jury could find him guilty, either as a principal or as an accessory, of assaulting the two victims with the intent to cause serious bodily injury. In other words, he has not argued that there was insufficient evidence from which the jury could conclude that he stabbed the two victims and that he engaged in conduct with the intent to aid Eliezer in Eliezer's assault of each of the victims. The claim he makes on appeal is simply that it is constitutionally impermissible under the facts of this case to allow his conviction of multiple counts of assault as to each victim to stand because, in his view, doing so would result in his being punished twice for the same act. "A defendant's double jeopardy claim presents a question of law, over which our review is plenary.... The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. The double jeopardy clause [applies] to the states through the due process clause of the fourteenth amendment. . This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial." (Internal quotation marks omitted.) State v. Porter , 328 Conn. 648, 654-55, 182 A.3d 625 (2018). In analyzing a double jeopardy claim arising in the context of a single trial, we apply a well established two step process. "First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met." (Internal quotation marks omitted.) State v. Bernacki , 307 Conn. 1, 9, 52 A.3d 605 (2012), cert. denied, 569 U.S. 918, 133 S.Ct. 1804, 185 L.Ed.2d 811 (2013). In State v. Porter , supra, 328 Conn. at 648, 182 A.3d 625, our Supreme Court clarified the type of evidence an appellate court should consider in applying this two step process. In evaluating the first step, i.e., whether the charges arise out of the same act or transaction, "we look to the evidence at trial and to the state's theory of the case . in addition to the information against the defendant, as amplified by the bill of particulars.... If it is determined that the charges arise out of the same act or transaction, then the court proceeds to step two, where it must be determined whether the charged crimes are the same offense.... [In considering the] second step . we look only to the information and bill of particulars-as opposed to the evidence presented at trial . Because double jeopardy attaches only if both steps are satisfied . a determination that the offenses did not stem from the same act or transaction renders analysis under the second step unnecessary . (Citations omitted; emphasis added; internal quotation marks omitted.) Id., at 662, 182 A.3d 625. Because we conclude in the present case that the defendant's double jeopardy claim founders on the first step of the analysis, it is unnecessary to consider whether the charged crimes are the same offense under the rubric set forth in Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). "[D]istinct repetitions of a prohibited act, however closely they may follow each other . may be punished as separate crimes without offending the double jeopardy clause. . The same transaction, in other words, may constitute separate and distinct crimes where it is susceptible of separation into parts, each of which in itself constitutes a completed offense.... [T ]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such as are made punishable by the [statute ]." (Emphasis altered; internal quotation marks omitted.) State v. Brown , 299 Conn. 640, 652, 11 A.3d 663 (2011). Accordingly, although the counts in an information may rely on factual allegations arising from one overarching criminal event, if it is possible to isolate distinct acts that occurred during that event that constitute separate and severable criminal offenses, prosecution of those offenses will not implicate double jeopardy. "[A]n appellate court reviewing an unpreserved claim of double jeopardy must examine the evidence to determine whether the alleged transaction logically can encompass separate acts, which in turn form the basis of separate convictions." State v. Porter , 167 Conn. App. 281, 290-91, 142 A.3d 1216 (2016), aff'd, 328 Conn. 648, 182 A.3d 625 (2018). By way of example, in Brown , the defendant and several coconspirators participated in a scheme to rob a suspected drug dealer that ended with that dealer being killed by the defendant. State v. Brown , supra, 299 Conn. at 644-46, 11 A.3d 663. The defendant was convicted of felony murder and murder, which were merged prior to sentencing, and robbery in the first degree, attempt to commit robbery in the first degree, conspiracy to commit robbery in the first degree, and other crimes related to the use of a firearm. Id., at 646, 11 A.3d 663. On appeal, the defendant raised an unpreserved double jeopardy claim, arguing that his conviction of both robbery and attempted robbery arose out of the same transaction, and, therefore, his sentence for attempted robbery should be vacated. Id., at 650, 11 A.3d 663. The court disagreed because the evidence presented at trial showed that acts constituting an attempted robbery reasonably could be isolated from other acts constituting a separate robbery and, therefore, punishing the defendant for both crimes did not violate the constitution. Id., at 654, 11 A.3d 663. Specifically, the court concluded that the jury reasonably could have found, on the basis of the evidence presented, that the attempted robbery had occurred when the victim was first confronted in his car by the defendant's three coconspirators, one of whom pointed a gun at his head. Id., at 653, 11 A.3d 663. Following a struggle for control of the gun, the victim escaped and began to run down the street. Id. The court found that the actions up to that point constituted a completed attempted robbery. Id. The defendant, who had run after the victim when he escaped from the car, was able to catch him when the victim tripped and fell. The defendant then shot the victim in the head and went through the victim's pockets, which the court viewed as constituting a separate and distinct act of robbery. Thus, the court concluded that in the course of the single criminal conspiracy, the defendant had participated in two separate and severable crimes that happened close together in both time and physical proximity-an attempted robbery as an accessory and a robbery acting as the principal. Id., at 653-54, 11 A.3d 663. The double jeopardy analysis in the present case is, at least at first blush, complicated by the fact that all the stabbing injuries to the victims occurred within a very short duration of each other, and that the defendant was charged with having committed an assault of each of the victims and as an accessory to an assault of each of the victims by Eliezer. It is true that "[t]his state . long ago adopted the rule that there is no practical significance in being labeled an accessory or a principal for the purpose of determining criminal responsibility.... Under the modern approach, a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime.... [T]here is no such crime as being an accessory . The accessory statute merely provides alternate means by which a substantive crime may be committed." (Citations omitted; internal quotation marks omitted.) State v. Correa , 241 Conn. 322, 340-41, 696 A.2d 944 (1997). Section 53a-8 (a) provides in relevant part that "[a] person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct ." To intentionally aid someone means to be "more than a mere inactive companion"; (internal quotation marks omitted) State v. Harris , 32 Conn. App. 831, 841, 632 A.2d 50 (1993), appeal dismissed, 230 Conn. 347, 644 A.2d 911 (1994) ; but "to do something purposely" in order to "support, help, assist or strengthen" them. (Internal quotation marks omitted.) Id., at 841 n.10, 632 A.2d 50. Although accessorial liability for an assault cannot be based solely on a person's presence at the scene, if there is evidence that the person was not merely a witness but also participated in the assault, a reasonable inference may be drawn that the participation aided the principal assailant by, for example, preventing the victim from more easily escaping the fight or by making the victim more vulnerable to the principal assailant's assault. See State v. Raynor , 175 Conn. App. 409, 431, 167 A.3d 1076 (in challenge by defendant to sufficiency of evidence supporting conviction of first degree assault as accessory, court concluded jury reasonably could have inferred from evidence of defendant's presence at brawl with gun and participation in physical beating of victim prior to his shooting that defendant aided principal by preventing victim from leaving area and helping immobile victim before he was shot), cert. granted on other grounds, 327 Conn. 969, 173 A.3d 952 (2017). Although it is indisputable that a defendant could not be punished for acting as both a principal and accessory in the commission of a single criminal act, the prohibition against double jeopardy is not always automatically violated simply because of contemporaneous convictions of the same offense as both a principal and as an accessory. If, for example, a jury reasonably could find on the basis of the evidence presented that each charged offense was the result of a distinct act of independent legal significance-one committed as a principal and another as an accessory-double jeopardy is not implicated. Because the defendant in the present case was convicted on separate counts of assaulting each of the victims both as a principal and as an accessory, we look to the evidence and the state's theory of the case to determine whether the jury could have reasonably concluded that separate acts underlie each conviction or whether the defendant is being twice punished for the same act. A We first consider whether, with respect to the convictions arising out of the stabbing injuries to Rodriguez, the defendant has demonstrated that the jury could not reasonably have concluded that two distinct acts of criminal conduct were committed that would support its findings of guilt on separate counts alleging first degree assault as a principal and first degree assault as an accessory. We conclude that the defendant has failed to meet this burden. The evidence at trial reasonably can be construed as establishing at least three separate stabbing incidents involving Rodriguez. First, during the fracas that ensued after Rodriguez intervened to stop the altercation between the defendant and Medina, the defendant stabbed Rodriguez. Second, Eliezer, who also was armed with a knife, then stabbed Rodriguez in the back. Third, after Rodriguez tried to leave the initial skirmish, the defendant pursued Rodriguez into the street and stabbed him again. The jury, thus, reasonably could have predicated its finding that the defendant committed assault in the first degree as a principal either on the basis of the first or third of these stabbing incidents, each of which was completed by the defendant himself. Even if the defendant were able to convince us that the relatively simultaneous stabbings of Rodriguez by the defendant and Eliezer during the initial outbreak of violence should be treated a single act for purposes of double jeopardy, an argument that we reject for reasons we discuss in addressing the injuries to Tucker, there is no doubt that the subsequent stabbing of Rodriguez by the defendant that occurred after Rodriguez left the initial brawl was a criminal act distinct and separate from the stabbings initially inflicted on Rodriguez by the defendant and his brother. Furthermore, the jury's finding that the defendant engaged in an assault in the first degree as an accessory could have been predicated on his having aided Eliezer in the second act of stabbing Rodriguez. The jury reasonably could have concluded that the defendant aided and encouraged Eliezer's assault of Rodriguez in any number of ways, including by helping Eliezer to arm himself with a knife and through his own participation in the fight, making it easier for Eliezer to wound Rodriguez. See id. (defendant's participation in fight evinces intent to aid perpetrator in assault and supports jury's finding of accessorial liability). Moreover, as we previously stated, we consider the state's theory of the case in our analysis of whether the alleged transaction logically can encompass separate acts. See State v. Porter , supra, 328 Conn. at 661, 182 A.3d 625. To the extent that the defendant contends that the state presented the two charges of assault in the first degree as a principal and an accessory as alternative theories of liability, we reject that claim. The state argued that both victims were stabbed multiple times and presented evidence of both assailants stabbing each victim. The state also argued that the evidence supported a finding that the defendant acted as an accessory "just by being there with the knife himself." From the very beginning of trial, the information contained four separate and distinct counts for each charge. At no time did the state suggest to the jury that the charges were alternative theories of liability. Furthermore, the court's jury instruction regarding the four charges reiterated that each charge was separate and distinct, rather than charges in the alternative. Although the trial court did not specifically articulate that the jury could deliver a guilty verdict as to each of the charges, it did not preclude the jury from making such a finding. See State v. King , 321 Conn. 135, 154, 136 A.3d 1210 (2016) ("[a]lthough . the trial court never explicitly informed the jury that it could deliver a guilty verdict on both charges, it also never instructed the jury that it could find the defendant guilty only on one charge but not the other"). In sum, we conclude with respect to the injuries inflicted on Rodriguez that the acts of stabbing were susceptible of separation into distinct criminal acts for which the defendant could be punished without offending principles of double jeopardy. See State v. Brown , supra, 299 Conn. at 654, 11 A.3d 663. Furthermore, such theory comports with the state's theory presented at trial. The defendant has presented no legal precedent that would compel an opposite conclusion. Accordingly, we reject the defendant's claim that his conviction of assault in the first degree as an accessory, as charged in count three of the information, should have been vacated by the trial court because it violated double jeopardy principles. B We turn next to the evidence pertaining to the stabbing injuries inflicted on Tucker, which we acknowledge presents a closer case from a double jeopardy perspective than the assault on Rodriguez because, unlike Rodriguez, all three stabs inflicted on Tucker occurred closer in both proximity and time. Nevertheless, on the basis of our review of the available evidence, we conclude that the jury reasonably could have determined that the defendant was guilty both as a principal actor for the stab or stabs that he personally inflicted on Tucker and as an accessorial actor for intentionally aiding the nearly simultaneous stab or stabs that Eliezer directly inflicted on Tucker. The defendant argues that if he had acted alone, he could not have been convicted of separate counts of assault on Tucker on the basis of each individual stab that he inflicted during the short duration of the fight, and that the same rationale should bar his conviction for multiple stabs that were inflicted by himself and by an accomplice. In making this argument, the defendant relies on this court's decision in State v. Nixon , 92 Conn. App. 586, 597, 886 A.2d 475 (2005), in which we held that the conviction of two counts of assault in the second degree arising out of multiple stab wounds inflicted on a single victim during a continuous and uninterrupted attack violated the prohibition against double jeopardy. Nixon did not address, however, the scenario at issue here, in which more than one perpetrator each assaulted a victim within close proximity in time and space. We conclude that Nixon is not applicable to the scenario presented in the present case. The defendant argues that Nixon is still controlling despite the fact that it involved only one criminal perpetrator. He does so by relying on the notion that courts generally make no legal distinction between accessorial liability and liability as a principal. See State v. Gamble , 119 Conn. App. 287, 297, 987 A.2d 1049, cert. denied, 295 Conn. 915, 990 A.2d 867 (2010). From that doctrinal basis, he asserts that the presence of multiple assailants should have no effect on the application of Nixon . This argument, however, fails to recognize that multiple convictions for the same crime are permitted if they are based on distinct acts that may be performed by more than one person rather than the type of rapid succession of multiple blows by a single perpetrator, on which Nixon was decided. It is particularly noteworthy that the defendant does not argue that double jeopardy bars his conviction as a principal for the stabbing of Tucker and as an accessory to the stabbing of Rodriguez, despite those stabbings also having quickly occurred within the context of the same melee. The defendant thus seems tacitly to acknowledge that he properly may be held criminally liable for the actions of his accomplice against a separate victim. It would be illogical to conclude that he would not be liable to the same degree simply on the happenstance that his accomplice targets the same victim that he himself has just assaulted or is simultaneously assaulting. In short, we find the defendant's argument, which is based on his interpretation and conflation of Nixon and Gamble , unpersuasive. This court having resolved that argument, the evidence before the jury was that Tucker was stabbed multiple times during the initial fray. There was evidence that both the defendant and Eliezer were armed with knives. The jury was free to resolve conflicting evidence by concluding that Tucker's injuries were not inflicted by a single assailant, and that both the defendant and Eliezer stabbed Tucker. Under such a scenario, the jury reasonably could have found the defendant liable for assault in the first degree on the basis of his own stabbing of Tucker. Moreover, as it did with Rodriguez, the jury also could have found the defendant liable as an accessory for Eliezer's stabbing of Tucker, a contemporaneous yet separate assault with independent legal significance because the defendant engaged in conduct with the intent to aid Eliezer's assault. In sum, because the defendant's multiple punishments for assault as to each victim were premised not on a single criminal act but distinct repetitions of the same crime, the court was not constitutionally required to vacate his conviction of two counts of assault in the first degree as an accessory. Because the defendant has not demonstrated that a double jeopardy violation exists, he cannot prevail under the third prong of Golding . II The defendant next claims that the court improperly instructed the jury on attempted murder and consequently deprived him of a fair trial. The defendant contends that the court's instructions on attempted murder improperly permitted the jury to find him guilty if it found that he had the general intent to fight with a knife without also finding that he had the specific intent to cause death. Specifically, the defendant argues that the court misled the jury by utilizing the phrase "engaged in anything" in three instances, reading the full statutory definition of general and specific intent, and failing to adequately define the substantial step element. The defendant acknowledges that he did not file a request to charge on attempted murder. Furthermore, the defendant did not take exception to the trial court's instructions as given. Nevertheless, the defendant argues that the unpreserved claim of instructional error is reviewable under Golding because it implicates his constitutional right to have the jury properly instructed on all elements of an offense and the record is adequate for review. See part I of this opinion. The state does not dispute that the first two prongs of Golding have been satisfied with respect to this claim, and the state did not assert a waiver pursuant to State v. Kitchens , 299 Conn. 447, 482-83, 10 A.3d 942 (2011). We agree because the record is adequate for review, and, when intent is an element of a crime, a trial court's failure to instruct the jury properly with respect to intent implicates the due process rights of the accused. See, e.g., State v. DeJesus , 260 Conn. 466, 472-73, 797 A.2d 1101 (2002). We conclude, however, that the defendant cannot prevail under Golding 's third prong. "Our standard of review for claims of instructional impropriety is well established. The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which they might find to be established . When reviewing [a] challenged jury instruction . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . and judged by its total effect rather than by its individual component parts.... [T]he test of a court's charge is . whether it fairly presents the case to the jury in such a way that injustice is not done to either party . In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial.... Moreover, as to unpreserved claims of constitutional error in jury instructions, we have stated that under the third prong of Golding , [a] defendant may prevail . only if . it is reasonably possible that the jury was misled ." (Internal quotation marks omitted.) State v. Lawrence , 282 Conn. 141, 179, 920 A.2d 236 (2007). "[I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge.... Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . and not critically dissected in a microscopic search for possible error.... Accordingly, [i]n reviewing a constitutional challenge to the trial court's instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury." (Internal quotation marks omitted.) State v. Hampton , 293 Conn. 435, 452-53, 988 A.2d 167 (2009). It is well established that the charge of attempted murder requires the state to prove beyond a reasonable doubt that the defendant had the specific intent to cause the death of another person. State v. Griggs , 288 Conn. 116, 130-31, 951 A.2d 531 (2008). We turn to a review of the challenged jury instruction to determine whether it is reasonably possible that the jury was misled. The trial court instructed the jury on intent as follows: "The question of intent: Intent relates to the condition of the mind of the person who commits the act, his or her purpose in doing it. The law recognizes two types of intent; general intent and specific intent, but each of the crimes charged here are crimes of specific intent, so you do not need to concern yourself with what general intent means. "Specific intent is the intent to achieve a specific result. A person acts intentionally, with respect to a result, when his or her conscious objective is to cause such result. What the defendant intended is a question of fact for you to determine. "A person acts intentionally with respect to a result or to conduct described by a statute defining an offense, when his conscious objective is to cause such a result or . engage in such conduct . "In this case, you will note that there is in each count an element which requires you to find that the state has proven beyond a reasonable doubt that . the defendant had the specific intent to do the thing charged.... "The evidence of intent: What a person's intention was is usually a matter to be determined by inference. No person is able to testify that he or she looked into another's mind and saw therein certain knowledge or a certain purpose or intention to do harm to another. "Because direct evidence of the . defendant's state of mind is rarely available, intent is generally proved by circumstantial evidence. The only way a jury can ordinarily determine what a person's intention was, at any give[n] time, is by determining what the person's conduct was and what the circumstances were surrounding that conduct and from that infer what his or her intention was." (Emphasis added.) The defendant claims that the court erred in using the phrase "engage in anything" when it read the attempt statute to the jury. The court instructed the jury as follows: "The defendant is charged with two counts of attempt to commit murder. "The mental state required for the commission of the crime of murder is that the defendant specifically intended to cause the death of another person. "The statute defining attempt reads in pertinent part as follows: A person is guilty of an attempt to commit a crime if, acting with the mental state required for the commission of the crime, he intentionally engaged in anything , which, under the circumstances, as he believed them to be, was an act constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. "For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: Element number one, intent . the first element is that the defendant had the kind of mental intent required for the commission of the crime of murder. The mental state required for the commission of murder is that the defendant specifically intended to cause the death of another person. There is no particular length of time necessary for the defendant to have formed the specific intent to kill. And, a person acts intentionally with respect to a result, when his conscious objective is to cause such a result." (Emphasis added.) In defining the second element of attempt, the court instructed the jury using the contested language as follows: "Element number two . the second element is that the defendant intentionally engaged in anything , which, under the circumstances, as he believed them to be, was an act constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. In other words, the state must prove both intent and conduct beyond a reasonable doubt to obtain a conviction." (Emphasis added.) Finally, the court summarized the elements utilizing the "engaged in" phrase as follows: "So, to sum up, the charge of attempt to commit murder, the state has to prove beyond a reasonable doubt that the defendant had the necessary . intent to commit the crime and that he intentionally engaged in anything which constituted a substantial step in the course of conduct planned to culminate in his commission of the crime under the circumstances, as he believed them to be." (Emphasis added.) On appeal, the defendant claims that the court improperly comingled the language from both sections of the attempt statute by utilizing the phrase "engaged in" and not the phrase "did or omitted doing" from the other subsection of the attempt statute. In the challenged jury instruction, the court utilized the "engaged in anything" language, which the defendant claims is related to the impermissible definition of general intent found in § 53a-3 (11). In addition, the defendant claims that the trial court's recitation of the full definition of intent in § 53a-3 (11) misled the jury. We disagree. "It is axiomatic that the definition of intent as provided in § 53a-3 (11) embraces both the specific intent to cause a result and the general intent to engage in proscribed conduct. It has become axiomatic, through decisional law, that it is improper for a court to refer in its instruction to the entire definitional language of § 53a-3 (11), including the intent to engage in conduct, when the charge relates to a crime requiring only the intent to cause a specific result." (Footnote added.) State v. Sivak , 84 Conn. App. 105, 110-11, 852 A.2d 812, cert. denied, 271 Conn. 916, 859 A.2d 573 (2004). In State v. Rivet , 99 Conn. App. 230, 232-33, 912 A.2d 1103, cert. denied, 281 Conn. 923, 918 A.2d 274 (2007), this court stated: "[I]n cases in which the entire definition of intent was improperly read to the jury, the conviction of the crime requiring specific intent almost always has been upheld because a proper intent instruction was also given. The erroneous instruction, therefore, was not harmful beyond a reasonable doubt [in those cases]." (Internal quotation marks omitted.) Compare State v. Austin , 244 Conn. 226, 236, 710 A.2d 732 (1998) (no reversible error when improper intent instruction followed by numerous proper instructions on elements of murder), and Moody v. Commissioner of Correction , 127 Conn. App. 293, 306, 14 A.3d 408 (no reversible error when improper intent instruction followed by repetition of specific intent element of murder and assault), cert. denied, 300 Conn. 943, 17 A.3d 478 (2011), with State v. Lopes , 78 Conn. App. 264, 271-72, 826 A.2d 1238 (reversible error when improper intent instruction given directly in regard to elements of attempt to commit murder and not followed by numerous proper instructions), cert. denied, 266 Conn. 902, 832 A.2d 66 (2003), and State v. DeBarros , 58 Conn. App. 673, 683, 755 A.2d 303 (reversible error when improper intent instruction not only given in initial and two supplemental charges but also referred to seven additional times), cert. denied, 254 Conn. 931, 761 A.2d 756 (2000). The defendant contends that the attempt instruction failed to guide the jury on what constituted a substantial step, and the omission of the language found in the model jury instruction on the Judicial Branch website, coupled with the other improper instructions, seriously misled the jurors because it allowed them to find the defendant guilty of attempted murder on the basis of his act of fighting with a knife, without determining his true purpose. The state argues that the model jury instruction language was not necessary in guiding the jury, and that the instructions that the court gave properly required it to find that the defendant intended to cause death and whether he intentionally engaged in conduct that constituted a substantial step planned to culminate in his commission of murder. We agree with the state. After reviewing the instructions in their entirety, we are persuaded that the instructions adequately conveyed to the jury that to find the defendant guilty of attempted murder, the jury must find that he had the specific intent to cause death. Although the court gave the full definition of intent as provided in § 53a-3 (11) and used the phrase, "engage in anything," at three points in the charge, our review of the entire instruction reveals that it is not reasonably possible that the instructions misled the jury. The words, "engaged in anything," as used by the trial court in the charge on attempt to commit murder did not affect the specific intent requirement; rather, the language referred to conduct constituting a substantial step toward the commission of the crime. See State v. Pires , 122 Conn. App. 729, 745, 2 A.3d 914 (2010) ("the words 'engage in conduct' refer not to the required intent but rather explain that the person being aided by the accessory must be doing the action that constitutes the crime, as opposed to simply thinking about the criminal act or perhaps engaging in conduct other than the criminal act"), aff'd, 310 Conn. 222, 77 A.3d 87 (2013). Indeed, the trial court repeatedly told the jury that, in order to find the defendant guilty, it must find that he had the specific intent to cause death and explained that the jury "[did] not need to concern [itself] with what general intent means." The court instructed the jury twice that "[t]he mental state required for the commission of murder is that the defendant specifically intended to cause the death of another person." Moreover, the court instructed that "a person acts intentionally with respect to a result when his conscious objective is to cause such result." Additionally, to the extent that the defendant claims that the separate claims of error taken together deprived him of a fair trial, we note that our Supreme Court has rejected the cumulative error approach regarding claims of instructional error. State v. Tillman , 220 Conn. 487, 505, 600 A.2d 738 (1991) ("[w]e decline to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts"), cert. denied, 505 U.S. 1207, 112 S.Ct. 3000, 120 L.Ed.2d 876 (1992). Viewing the instructions as a whole, we conclude that the defendant cannot prevail on his claim of instructional impropriety with regard to his conviction of attempted murder. Accordingly, the defendant's claim fails to satisfy the third prong of Golding , as he has not established the existence of a constitutional violation that deprived him of a fair trial. III The defendant also claims that the court misled the jury by instructing the jurors on the defenses of self-defense and defense of others, as well as on the lesser included offenses of assault in the second degree and assault in the third degree. More specifically, the defendant claims that the court committed reversible error because its instructions on self-defense permitted the jury to consider lesser included offenses if the state failed to disprove self-defense beyond a reasonable doubt. We disagree. The defendant failed to preserve this claim at trial and now seeks Golding review. See part I of this opinion. Unlike the prior claim of instructional error, however, the state argues that the defendant waived this claim, pursuant to State v. Kitchens , supra, 299 Conn. at 482-83, 10 A.3d 942, and, thus, is not entitled to review under Golding . We agree. The following facts are necessary for the resolution of this claim. The trial court provided a thirty-one page draft of the proposed jury instructions to the defendant and the state prior to the charging conference on July 29, 2015. Although the record does not identify the exact date that the parties received the draft, the record is clear that the parties had the draft overnight from July 29 to July 30, 2015. During the charging conference the court discussed with counsel how to guide the jury regarding the consideration of the numerous charges and the lesser included offenses. The court's proposed instructions included explaining to the jury that it is the jury's choice as to what order it deliberates the charges, except for the lesser included offenses, and the court, during the charging conference, specifically stated to the parties, "I am going to ask you to review that, particularly." The court also discussed with counsel the instructions on defense of others and self-defense. The court stated that "[t]he self-defense and defense of others, the draft . proposed by [the state] . is tracked by the recommendation of the proposed charges filed by the defense." The discussion included a suggestion about whether the court should utilize "and/or," or, "or," or, "and," in its instruction. The defense suggested "and/or" and did not raise any exceptions to the charge as proposed. At the end of the charging conference, the court specifically addressed the self-defense charge and inquired as to whether the evidence indicated that the defendant attacked in defense of another person. The record indicates that the following morning, the trial court gave a revised copy of the charge to counsel and stated that "counsel and I had a charging conference here in this courtroom, and I had promised that I would give to each attorney a copy of a revised charge, following our discussions . While the charges remain very much the same in . substance, as the ones that I previously presented to defense counsel and the state, there have been some amendments and alterations, and, obviously I will give you, each of you, more time to consider the charges that I've proposed to the jury, if you wish to do that. I anticipate that you will take most of the morning to do the arguments; however, you will have the luncheon recess and as much time thereafter as you wish to review the charges." The court then reviewed the proposed changes with counsel on the record. The court reviewed how to guide the jury to consider the numerous charges and the lesser included offenses. stating: "I've suggested effectively that they should start on . count five, go through that, consider whether the elements are . proven; if they find that is the case, consider whether the defense [of] self-defense applies and then continue. In relation to the . other charges, I've added that they must consider or can consider lesser included offenses. So, I would appreciate it if . you let me know if you need any time on that." The jury was subsequently brought into the court, and the parties conducted closing arguments. After the jury was dismissed for the luncheon recess, the defense expressed an issue with one of the state's comments in the closing argument and requested a curative instruction. After the luncheon recess, the parties confirmed that they had no other concerns regarding the revised instructions, and the court discussed the curative instruction requested by defense counsel. The jury was summoned into the courtroom, and the court read the instructions to the jury. The court specifically asked if the parties had any exceptions to the charge, and defense counsel specifically stated, "I don't have any exceptions." "It is well established in Connecticut that unpreserved claims of improper jury instructions are reviewable under Golding unless they have been induced or implicitly waived.... The mechanism by which a right may be waived . varies according to the right at stake.... For certain fundamental rights, the defendant must personally make an informed waiver.... For other rights, however, waiver may be affected by action of counsel . [including] the right of a defendant to proper jury instructions.... Connecticut courts have consistently held that when a party fails to raise in the trial court the constitutional claim presented on appeal and affirmatively acquiesces to the trial court's order, that party waives any such claim [under Golding ].... [W]hen the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.... [C]ounsel's discussion of unrelated parts of the jury charge at an on-the-record charge conference . demonstrate[s] that counsel was sufficiently familiar with the instructions to identify those portions of the instructions with which [she] disagreed. [T]o the extent that [she] selectively discussed certain portions of the instructions but not others, one may presume that [she] had knowledge of the portions that [she] did not discuss and found them to be proper, thus waiving the defendant's right to challenge them on direct appeal.... Our Supreme Court has stated that it is sufficient to show that defense counsel had a meaningful opportunity to review the proposed instructions if she was given the opportunity to review them overnight." (Citations omitted; internal quotation marks omitted.) State v. Hall-Davis , 177 Conn. App. 211, 240-41, 172 A.3d 222, cert. denied, 327 Conn. 987, 175 A.3d 43 (2017) ; see also State v. Kitchens , supra, 299 Conn. at 482-83, 10 A.3d 942. Here, the defendant had a meaningful opportunity to review the proposed jury instructions at issue and assented to the instructions. The defendant had the proposed instructions overnight on July 29, 2015, and discussed the challenged instructions at length with the court at the charging conference and in the morning after the charging conference on July 30, 2015. The court reviewed the revisions with counsel and specifically requested that the parties review the revisions related to the instructions challenged on appeal. The defendant expressed no concerns regarding the revisions or the charge as given to the jury. Accordingly, we conclude that, under the present circumstances, the defendant had a meaningful opportunity to review the jury instruction challenged on appeal and waived his right to challenge the instruction on appeal. Alternatively, the defendant argues that this court should review his waived claim under the plain error doctrine. In State v. McClain , 324 Conn. 802, 812-15, 155 A.3d 209 (2017), our Supreme Court held that a Kitchens waiver does not preclude appellate relief under the plain error doctrine. See State v. Torres , 325 Conn. 919, 163 A.3d 618 (2017). Accordingly, we review whether the defendant's claim of instructional impropriety constitutes plain error requiring reversal of the judgment. A review of the record reveals the following additional relevant facts. The trial court instructed the jury on the defense of self-defense and defense of others as follows: "The evidence in this case raises the issues of self-defense . and/or the defense of others. Self-defense and/or the defense of others, applies to all of the charges before you, as well as to lesser included offenses of assault in the second degree, assault in the third degree.... After you've considered all of the evidence in this case, if you find that the state has proven beyond a reasonable doubt each element of the crime, you must go on to consider whether or not the defendant acted in self-defense or defense of others. In this case, you must consider self-defense or defense of others in connection with-with each count of the information and the lesser included offenses you may consider." Later in the charge, the court repeated the instructions as to self-defense and suggested a way for the jury to consider the charges. Following the repetition of the self-defense and defense of others instruction, the court instructed: "If . you . find that the state has not . disproved beyond a reasonable doubt at least one of the elements of the defense or has not proven one of the statutory disqualifications, then on the strength of that defense alone, you must find the defendant not guilty, despite the fact that you have found the elements of the crime proved beyond a reasonable doubt." The court continued to summarize an example for how to consider the lesser charges: "In other words, you consider, for example, assault in the first degree, only if you acquit the defendant of that charge, either because you do not find the state has proven the elements of that charge beyond a reasonable doubt or you find the state has failed to . disprove . the defenses of self-defense and/or defense of others, and so that you acquit the defendant on that charge, then you may consider assault in the second degree; you're going to go through the same analysis for that lesser included offense, if you acquit the defendant of that charge . you then shall consider the charge of assault in the third degree." The next day, the court reinstructed the jury about how to deliberate and stated that "while I anticipate that [your] findings in relation to self-defense and/or the defense of others, will probably be the same in both the substantive and the lesser included offenses, you must include . that issue in your consideration of each charge, if appropriate." "An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily [discernible] on the face of a factually adequate record, [and] also . obvious in the sense of not debatable.... This determination clearly requires a review of the plain error claim presented in light of the record. Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application.... [T]he plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... [I]n addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.... [Previously], we described the two-pronged nature of the plain error doctrine: [An appellant] cannot prevail under [the plain error doctrine] . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.... "It is axiomatic that, [t]he plain error doctrine . is not . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment . for reasons of policy.... Put another way, plain error review is reserved for only the most egregious errors. When an error of such a magnitude exists, it necessitates reversal." (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. McClain , supra, 324 Conn. at 812-14, 155 A.3d 209. The defendant claims that by its instructions, the court expressly precluded the jury from considering the defenses of defense of others and self-defense. The defendant cites State v. Hinckley , 198 Conn. 77, 87-88, 502 A.2d 388 (1985), and argues that the trial court's error was "an example of an extraordinary [situation] where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." The defendant also argues that it was plain error for the trial court to misstate the effect of the governing statute by telling the jurors that acquittal on the basis of self-defense was not a true acquittal. The state argues that it is not reasonably possible that the instruction misled the jury, and that any error did not result in manifest injustice and is harmless beyond a reasonable doubt because the defendant was convicted of the charged offenses. We agree with the state. Even if we assume arguendo that the instruction constituted obvious and undebatable error, the record does not demonstrate manifest injustice and therefore does not satisfy the second prong required for reversal of the judgment pursuant to the plain error doctrine. See State v. Blaine , 179 Conn. App. 499, 510, 180 A.3d 622, cert. granted on other grounds, 328 Conn. 917, 181 A.3d 566 (2018). "Because [a] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice . under the second prong of the analysis we must determine whether the consequences of the error are so grievous as to be fundamentally unfair or manifestly unjust." (Citation omitted; internal quotation marks omitted.) State v. Coward , 292 Conn. 296, 307, 972 A.2d 691 (2009). Because the jury returned a verdict of guilty on the charged offenses and not on any of the lesser included offenses, the defendant cannot establish manifest injustice or fundamental unfairness. IV The defendant's final claim is that prosecutorial impropriety deprived him of a fair trial because it negatively impacted his self-defense claim, as well as his claim of third-party culpability. Specifically, the defendant alleges that the prosecutor improperly (1) misstated the law to the jurors; (2) distorted the burden of proof; (3) appealed to the jurors' emotions; and (4) commented on facts not in evidence. With one minor exception, we conclude that the prosecutor's remarks were not improper, and, thus, the defendant was not deprived of a fair trial. As a preliminary matter, we set forth the general principles under which we review claims of prosecutorial impropriety. "In cases of unpreserved claims of prosecutorial [impropriety] . it is unnecessary for the defendant to seek to prevail under the specific requirements of . Golding and, similarly, it is unnecessary for a reviewing court to apply the four-pronged Golding test." (Internal quotation marks omitted.) State v. Bermudez , 274 Conn. 581, 586-87, 876 A.2d 1162 (2005). Our Supreme Court has articulated that "following a determination that prosecutorial [impropriety] has occurred, regardless of whether it was objected to, an appellate court must apply the [ State v. Williams , 204 Conn. 523, 540, 529 A.2d 653 (1987) ] factors to the entire trial." State v. Bermudez , supra, at 587, 876 A.2d 1162. "[W]hen a defendant raises on appeal a claim that improper remarks 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 light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process.... In analyzing whether the prosecutor's comments deprived the defendant of a fair trial, we generally determine, first, whether the [prosecutor] committed any impropriety and, second, whether the impropriety or improprieties deprived the defendant of a fair trial." (Citation omitted; internal quotation marks omitted.) State v. Felix R ., 319 Conn. 1, 8-9, 124 A.3d 871 (2015). When reviewing the propriety of a prosecutor's statements, "we do not scrutinize each individual comment in a vacuum but, rather, review the comments complained of in the context of the entire trial." (Internal quotation marks omitted.) Id., at 9, 124 A.3d 871. "[Impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] [was harmful and thus] caused or contributed to a due process violation is a separate and distinct question ." (Internal quotation marks omitted.) State v. James E ., 154 Conn. App. 795, 816, 112 A.3d 791 (2015). "[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments.... In determining whether such [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.... [A]s 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.... While 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 upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury ha[s] no right to consider." (Internal quotation marks omitted.) State v. Otto , 305 Conn. 51, 76-77, 43 A.3d 629 (2012). We address each of the defendant's claims of prosecutorial impropriety in turn. A The defendant first asserts that the prosecutor improperly stated that the defendant was the initial aggressor due to his assault of Medina. We are not persuaded. During closing argument the prosecutor made the following statement: "The first aggressive act was his. When he first thrust his face into [Medina's]-his hand into [Medina's] face, he started [the] brawl. Many witnesses described it as pushing her face, some of them described it as punching her. Now, he was the catalyst of the whole event, once he was the first to take physical action against her.... The state's point of view is that [the] original act of aggression, by the defendant, caused a chain of events, which resulted in these stabbings. And, now he comes before you and he's, sort of, just making the argument that he has the right to use deadly force, in a situation that he caused to occur; it doesn't seem to be reasonable, and I'm arguing that he was the initial aggressor." Although "prosecutors are not permitted to misstate the law . because such statements are likely to improperly mislead the jury"; (citations omitted) State v. Otto , supra, 305 Conn. at 77, 43 A.3d 629 ; the prosecutor, however, may argue the state's case forcefully, provided that the argument is fair, and based on the facts in evidence and reasonable inferences drawn from that evidence. State v. Bardliving , 109 Conn. App. 238, 253, 951 A.2d 615, cert. denied, 289 Conn. 924, 958 A.2d 153 (2008). The defendant fails to cite any law that supports his claim that the prosecutor's argument was improper. The defendant claims that he could be the initial aggressor only if he was the first person to threaten or use force against Tucker or Rodriguez and thus the prosecutor's argument that he could be an initial aggressor from his actions toward Medina was a misstatement of the law. At trial, the court instructed the jury regarding the state's burden to prove that the defendant was the initial aggressor in the encounter with Rodriguez and Tucker. The state claims that the arguments at trial centered around when the encounter began and that the defendant's argument in closing arguments to the jury was that Eliezer was the initial aggressor when he confronted Mendez. The state claims that its argument was proper because "if a jury reasonably can find that a defendant began a brawl by attacking one person, he cannot claim that he was not the initial aggressor with respect to other people swept into the brawl in defense of that person." We agree with the state. In the absence of any law to the contrary, the prosecutor's argument that the defendant was the initial aggressor was based on the facts in evidence and thus, was not improper. The defendant has failed to establish that the prosecutor's remarks were improper, let alone establish that such statements were so egregious that they amounted to a denial of due process. B The defendant's next claim of prosecutorial impropriety is that the prosecutor distorted the burden of proof in his closing argument by suggesting to the jury that a defendant has the burden to produce evidence in support of his defense. In addition, the defendant claims that the prosecutor's argument violated our Supreme Court's holding in State v. Malave , 250 Conn. 722, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S.Ct. 1195, 145 L.Ed.2d 1099 (2000). We disagree. "In Malave, our Supreme Court abandoned the rule enunciated in Secondino v. New Haven Gas Co ., 147 Conn. 672, 165 A.2d 598 (1960), which had permitted trial courts to instruct the jury that [t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party's cause.... Although the [c]ourt in Malave abandoned the Secondino rule, it did not prohibit counsel from making appropriate comment, in closing arguments, about the absence of a particular witness, insofar as that witness' absence may reflect on the weakness of the opposing party's case.... The court did, however, prohibit counsel from directly urging the jury to draw an adverse inference by virtue of the witness' absence.... Additionally, the court stated that [f]airness, however, dictates that a party who intends to comment on the opposing party's failure to call a certain witness must so notify the court and the opposing party in advance of closing arguments. Advance notice of such comment is necessary because comment on the opposing party's failure to call a particular witness would be improper if that witness were unavailable due to death, disappearance or otherwise. That notice will ensure that an opposing party is afforded a fair opportunity to challenge the propriety of the missing witness comment in light of the particular circumstances and factual record of the case." (Internal quotation marks omitted.) State v. Grant , 154 Conn. App. 293, 325-26, 112 A.3d 175 (2014), cert. denied, 315 Conn. 928, 109 A.3d 923 (2015). Defense counsel argued during her closing argument that Eliezer was the initial aggressor when he confronted Mendez: "That's the initial aggressor, not [the defendant]; the initial aggressor in this case was Eliezer, Eliezer coming over and confronting, leaving his car and coming over to where the girls were and confronting either all the girls or [Mendez]. He's the initial aggressor." During his rebuttal, the prosecutor stated: "You know, there was some talk about the initial aggressor, that Eliezer was the initial aggressor; there is no testimony in this case that Eliezer ever struck [Mendez], from no witness, anywhere. And, you remember [the defendant's] own expert testified yesterday, that words are okay, words don't require defense or force. So, that altercation between Eliezer and [Mendez] was not a physical altercation, so he couldn't be the initial aggressor. The first one to be the initial aggressor is the one to use force . A lot of stuff or testimony or evidence was attributed to Eliezer in this case and what he may have been doing or thinking. He never testified in this case. I don't know that all the evidence attributed to Eliezer during the rebuttal actually has a basis in the facts ." (Emphasis added.) The state argues that Malave does not apply because the prosecutor did not make a missing witness argument and the prosecutor properly focused the jury on a weakness in the defendant's theory of the case. The state contends that the prosecutor properly responded to the defendant's argument that Eliezer had been the initial aggressor by pointing out the absence of evidence that Eliezer had engaged in anything other than a verbal altercation with Mendez. Under the present circumstances, we conclude that the prosecutor did not directly urge the jury to draw an adverse inference by virtue of Eliezer's absence, thereby distorting the burden of proof, but argued instead that there was no evidence to support defense counsel's claim that Eliezer was the initial aggressor. See State v. Andrews , 313 Conn. 266, 307, 96 A.3d 1199 (2014) (holding that prosecutor's comment, "[t]hey have access to the state forensic lab, they can put on witnesses if they want to from the lab," was not improper missing witness argument because prosecutor argued no evidence supported defendant's claim [emphasis omitted] ). In Malave , our Supreme Court held that "we do not prohibit counsel from making appropriate comment, in closing arguments, about the absence of a particular witness, insofar as that witness' absence may reflect on the weakness of the opposing party's case.... [Such comment is allowed as] long as counsel does not directly exhort the jury to draw an adverse inference by virtue of the witness' absence ." State v. Malave , supra, 250 Conn. at 739, 737 A.2d 442. Accordingly, the prosecutor's reference during rebuttal argument to the lack of evidence for the defendant's theory of the case, i.e., that Eliezer was the initial aggressor, was not improper. C The defendant also claims that the prosecutor improperly appealed to the emotions of the jurors by referring to Tucker and Rodriguez as "good Samaritans." We disagree. In closing arguments, the prosecutor stated that Tucker and Rodriguez "had the right to come to [Medina's] aid, they were merely defending a third person, they merely used physical force, not deadly force, they were acting as good Samaritans." The prosecutor then stated that Rodriguez "was a good Samaritan" and then asked the jury: "Isn't that what you want to see in a young man?" "It has long been held that [a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors.... When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.... Therefore, a prosecutor may argue the state's case forcefully, [but] such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.... Nonetheless, closing arguments often have a rough and tumble quality about them, [and] some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [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." (Internal quotation marks omitted.) State v. Patterson , 170 Conn. App. 768, 794, 156 A.3d 66, cert. denied, 325 Conn. 910, 158 A.3d 320 (2017). Here, the prosecutor's comments were based on reasonable inferences from facts in evidence and did not invite the jury to decide the case on the basis of sympathy for Rodriguez and Tucker. The prosecutor utilized his opportunity in closing arguments to explain the motivations of Rodriguez and Tucker for approaching the defendant and further argued that the defendant was the initial aggressor. Accordingly, we conclude that the prosecutor's comments referring to the victims as "good Samaritans" were not improper. D The defendant's final claim is that on three occasions the prosecutor made arguments that were based on facts not in evidence to suggest that the defendant stabbed Tucker. We do not agree. Before turning to a discussion of each of the alleged improprieties, we first set forth the applicable law. "[T]he 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[s] impartial justice for the guilty as much as for the innocent.... By reason of his office, he usually exercises great influence [over] 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 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 [that] the laws prescribe. While 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 [that] the jury ha[s] no right to consider." (Internal quotation marks omitted.) State v. James E ., supra, 154 Conn. App. at 817, 112 A.3d 791. "In fulfilling his duties, a prosecutor must confine the arguments to the evidence in the record.... Statements as to facts that have not been proven amount to unsworn testimony that is not the subject of proper closing argument.... Moreover, when a prosecutor suggests a fact not in evidence, there is a risk that the jury may conclude that he or she has independent knowledge of facts that could not be presented to the jury." (Internal quotation marks omitted.) State v. Patterson , supra, 170 Conn. App. at 789, 156 A.3d 66. 1 The defendant first contends that, during closing argument, the prosecutor improperly argued that two witnesses, Mendez and Adames, saw the defendant stab Tucker, but the facts in evidence did not support that statement. Specifically, the prosecutor argued: "[Mendez]: Eliezer started giving her a hard time. A lot of the women that were in that group say it was Eliezer that started first to be aggressive, verbally. [The defendant] mushed her in the face and had her in a headlock. [The defendant] struck [Medina] and she was two feet away. She signed three statements that night, indicating that [the defendant] stabbed [Tucker]. She can confirm that [the defendant] stabbed [Tucker]. You can listen to the testimony of witnesses; her testimony was short, give a listen to her testimony if you so desire. It was very crisp and, sort of, very confidently stated about what she knows. "[Adames]: It started with Eliezer and [Mendez]. She was present at the scene. She knows [Tucker] and [the defendant], signed three statements that very night identifying [the defendant] as the person who . stabbed [Tucker], that very night.... "In court, she said she did not see the stabbing; however, she's right there. She would know what occurred. These girls know what occurred here." Additionally, on rebuttal, the prosecutor read from Adames' testimony and stated: "So, there is some evidence, in which you can infer that [the defendant] stabbed [Tucker]." The defendant argues that this argument was improper because there was no evidence in the record about the content of Mendez' three signed statements and no evidence that Mendez saw the defendant stab Tucker. Further, the defendant argues that the prosecutor improperly argued that Adames knew what happened, when she explicitly denied seeing anything. In response, the state argues that the prosecutor properly summarized the testimony of each witness. The state further argues that the prosecutor presented fair inferences that could be drawn from Adames and Mendez' testimony. We look to the testimony to determine whether the prosecutor properly referred to facts in evidence. At trial, Mendez testified that she provided three signed statements to the police in which she described what she observed on the night of the altercation. Mendez also provided the following testimony about what she saw when the defendant and Tucker interacted during the fight: "I saw quick contact, I'm not able to say that I saw the knife in [the defendant's] hand, but I did see, like, because we were, like, two feet away from each other, and then [Tucker] picked up his pants to, like, square up to fight, and [the defendant] came quick (demonstrating), boom, but I didn't see anything in his hand because it was so fast.... I don't think he really felt it, until afterward and that's when he said, sis, I think, he's stabbing me, and then I picked up his sweater and then I saw the blood ." When asked if she saw the defendant with a knife, Mendez responded, "I didn't see him with it in his hand, but I can confirm that it was for sure him that stabbed [Tucker] because I was two feet away from him and when I saw this fast movement, that's approximately two minutes later, [Tucker] told me that he got stabbed." Adames also testified that she had given three statements to the police. Adames acknowledged that in all three of her statements she indicated that the defendant stabbed Tucker. On cross-examination, Adames testified that she did not see the defendant stab Tucker. When the prosecutor inquired on redirect if it was still her position that the defendant stabbed Tucker, she replied, "[y]eah." A review of the record plainly shows that the prosecutor did not comment on, or suggest an inference from, facts not in evidence, or present matters that the jury had no right to consider. Accordingly, the defendant has failed to establish that the prosecutor's comments were improper. 2 The defendant contends that the prosecutor argued facts not in evidence when he stated: "Junito's brother is Joesenier." The state argues that the comment was made in the context of making an inference drawn from other evidence. We agree with the state. The prosecutor argued in closing argument: "Liybin Fernandez, Liybin's a tricky witness . Both brothers had knives. Knives were retrieved from the motor vehicle. There's the Junito issue. Listen to the testimony again from Liybin, if you so desire, and ask yourself: did he just get the name inverted? . Eliezer, Junito, remember, three of the girls say Eliezer was arguing, they all say Eliezer started the verbal argument. Well, if Eliezer is Junito, it would be accurate for Liybin to say, well, yeah, Eliezer was arguing with the girls. Who stabbed the black individual, he was asked that question, he said, Junito's brother. Junito's brother stabbed the black individual, Junito's brother is Joesenier.... So, you may want to relisten to his testimony again." On the basis of our review of the record, there is evidence that could give rise to a reasonable inference that Junito's brother is Joesenier. During Fernandez' testimony, he was asked if Junito was in the courtroom. In response, Fernandez stated, "[t]hat guy looks like him," and identified the defendant. Fernandez also testified, after refreshing his recollection with his prior statement, that "Junito's brother" stabbed Tucker. Although there is conflicting evidence that Eliezer was also nicknamed Junito, because there is sufficient evidence in the record that could give rise to a reasonable inference that Junito is Eliezer and that, therefore, Junito's brother is the defendant, the prosecutor's statement in his closing argument was proper. 3 The defendant last argues that the prosecutor referred to facts not in evidence when discussing the testimony of two police officers who witnessed the fight and called 911. During rebuttal, the prosecutor stated, "[y]ou know, the indication was that we can rely on the testimony of the trained police officers that saw it. I would argue to you that those trained police officers did not believe that this was a self-defense situation." The defense objected to this portion of the state's closing argument, and the court issued a curative instruction. The state does not contest that the statement was improper, but argues that there is no prejudice from this comment because the defense objected to this portion of the state's closing argument and, after consulting with both parties, the trial court issued a curative instruction. Even if we assume arguendo that the prosecutor's argument was improper, it is the defendant's burden to establish that the impropriety violated his due process right to a fair trial. See State v. Jones , 320 Conn. 22, 37, 128 A.3d 431 (2015) ("when a defendant raises on appeal a claim that improper remarks by the prosecutor deprived [him] 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 light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process" [internal quotation marks omitted] ). As our Supreme Court has articulated, the "determination of whether any improper conduct by the state's attorney violated the defendant's fair trial rights is predicated on the factors set forth in State v. Williams , [supra, 204 Conn. at 540, 529 A.2d 653], with due consideration of whether that [impropriety] 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." (Citation omitted; internal quotation marks omitted.) State v. Grant , 286 Conn. 499, 536-37, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d 200 (2008). In applying the Williams factors, we determine whether the claimed impropriety, the prosecutor's statement that the trained police officers "did not believe that this was a self-defense situation," violated the defendant's right to a fair trial. On the one hand, there is no indication in the record that the claimed impropriety was invited by either defense counsel or his argument, and the statement directly implicates the issue of self-defense. On the other hand, in light of the remaining Williams factors, the defendant's claim must fail. The alleged impropriety occurred during only one portion of the prosecutor's rebuttal and cannot be characterized as frequent. Upon objection by defense counsel, most notably, the court promptly issued a cautionary instruction, which specifically identified the prosecutor's remarks about the police officers' beliefs and stated that there was no evidence to that effect. It is well established that "a prompt cautionary instruction to the jury regarding improper prosecutorial remarks obviates any possible harm to the defendant." State v. Ubaldi , 190 Conn. 559, 563, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S.Ct. 280, 78 L.Ed.2d 259 (1983). "In the absence of a showing that the jury failed or declined to follow the court's instructions, we presume that it heeded them." (Internal quotation marks omitted.) State v. Santiago , 269 Conn. 726, 762, 850 A.2d 199 (2004). The curative instructions make it unlikely that the prosecutor's comments were so prejudicial as to affect the outcome of the trial. Furthermore, pursuant to the final Williams factor, the state's case against the defendant was strong, including the testimony of several eyewitnesses describing the assault, and the defendant's statement to the police admitting that he stabbed someone and that he was present at the time of the stabbing. In addition, the evidence included a video of the fight in the parking lot in which several eyewitnesses identified the defendant. Upon consideration of the Williams factors, we conclude that the court's instructions were sufficient to cure any harm to the defendant and, accordingly, that the defendant has failed to establish that the improper comment deprived him of a fair trial. The judgment is affirmed. In this opinion the other judges concurred. The defendant was also charged with and found not guilty of an additional count of attempted murder in violation of § 53a-54, and he was convicted of an additional count of conspiracy to commit first degree assault in violation of § 53a-59 (a) (1) and 53a-48 that was vacated by the trial court. The defendant was sentenced to a term of sixteen years of imprisonment on count one to be served concurrently with counts two through four. As to count six, the defendant was sentenced to six years to serve and five years of special parole, concurrent with count seven and consecutive to counts one through four. The total effective sentence is twenty-two years to serve, followed by five years of special parole. Count two alleged that the defendant, "with the intent to cause serious physical injury to another person or to a third person by means of a dangerous instrument, to wit: a knife, caused such injury to Luis Rodriguez. This crime occurred on December 1, 2012 at approximately 2:17 a.m. in the vicinity of 45 North Street, Danbury, CT in violation of [§] 53a-59 (a) (1)." Count three alleged that the defendant, "acting with the mental state required for the offense charged, did solicit or request or command or intentionally aid another person or persons in the assault upon Luis Rodriguez and that during the commission of said assault, Luis Rodriguez suffered serious physical injury with a dangerous instrument, to wit: a knife. This crime occurred on December 1, 2012 at approximately 2:17 a.m. in the vicinity of 45 North Street, Danbury, CT in violation of [§] 53a-8 and § 53a-59 (a) (1)." Count six alleged that the defendant, "with the intent to cause serious physical injury to another person or to a third person by means of a dangerous instrument, to wit: a knife, caused such injury to Kenneth Tucker. This crime occurred on December 1, 2012 at approximately 2:17 a.m. in the vicinity of 45 North Street, Danbury, CT in violation of [§] 53a-59 (a) (1)." Count seven alleged that the defendant, "acting with the mental state required for the offense charged, did solicit or request or command or intentionally aid another person or persons in the assault upon Kenneth Tucker and that during the commission of said assault, Kenneth Tucker suffered serious physical injury with a dangerous instrument, to wit: a knife. This crime occurred on December 1, 2012 at approximately 2:17 a.m. in the vicinity of 45 North Street, Danbury, CT in violation of [§] 53a-8 and § 53a-59 (a) (1)." Although our state constitution does not include a similar double jeopardy provision, our Supreme Court has held that the due process guarantees found in article first, § 8, of the Connecticut constitution embody the protection afforded under the federal constitution. See State v. Michael J ., 274 Conn. 321, 350-51, 875 A.2d 510 (2005). We reiterate that the defendant has not argued that there was insufficient evidence to conclude that he acted as an accessory, and, therefore, it is unnecessary for us to marshal all of the evidence that would support the jury's finding of accessorial liability in this case. Furthermore, our resolution of this matter should not be interpreted as holding that the defendant's own act of stabbing Rodriguez would, without more, be sufficient to demonstrate an intention to aid, thereby warranting accessorial liability. Rather, it was the totality of the defendant's actions, including helping to arm Eliezer and his active participation in the brawl, that demonstrate his intent to aid. As we noted in part I A of this opinion, the state's theory of the case comports with a finding of two separate and distinct charges of assault in the first degree. General Statutes § 53a-54a (a), defining murder, provides in relevant part: "A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person ." General Statutes § 53a-49 (a), defining criminal attempt, provides: "A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." General Statutes § 53a-3 (11) provides: "A person acts 'intentionally' with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct ." The defendant claims that the trial court erred by failing to include the following language from the Connecticut Criminal Jury Instructions: "To be a substantial step, the conduct must be strongly corroborative of the defendant's criminal purpose. The act or acts must constitute more than mere preparation. The defendant's conduct must be at least the start of a line of conduct that will lead naturally to the commission of a crime. In other words, it must appear to the defendant that it was at least possible that the crime could be committed if (he/she) continued on (his/her) course of conduct." (Footnote omitted.) Connecticut Judicial Branch Criminal Jury Instructions 3.2-2, Attempt-§ 53a-49 (a) (2) (element 2) (revised to December 1, 2007), available at https://www.jud.ct.gov/ji/Criminal/Criminal.pdf (last visited September 20, 2018). As previously stated, the court instructed the jury that "there is in each count an element which requires you to find that the state has proven beyond a reasonable doubt that the . defendant had the specific intent to do the thing charged." The defendant also claims that the court's instructions in response to a jury question about third-party culpability also contributed to the court's error. On the second day of deliberations, the jury had a question on the third-party culpability instructions, and the court discussed with counsel a proposed instruction in response to the question. The court, the state, and defense counsel collaborated and agreed on an appropriate instruction to answer the jury's question. After discussing the instruction off the record, the court went back on the record to state the complete proposed instruction. The defendant and the state assented to the proposed instruction. We reject the defendant's argument, as it has no merit. As we stated in part II of this opinion, to the extent that the defendant claims the cumulative effect of the instructional improprieties constituted plain error, we reject such an argument. See State v. Tillman supra, 220 Conn. at 505, 600 A.2d 738. Our Supreme Court in State v. Hall , 213 Conn. 579, 589, 569 A.2d 534 (1990), determined that a defendant was entitled to a jury instruction on self-defense for the lesser included offense of manslaughter in the second degree. There, the trial court had instructed the jury that the defense of self-defense was applicable to only murder and intentional manslaughter in the first degree. Id., at 583-84, 569 A.2d 534. Our Supreme Court held, however, that even though the trial court failed to give the self-defense instruction for manslaughter in the second degree, it was not reasonably possible that the jury was misled and stated that "the jury's verdict of guilty on the offense of manslaughter in the first degree was necessarily a rejection of the defense of self-defense. Since the elements of self-defense as applied to manslaughter in the second degree would have been the same as those applied to manslaughter in the first degree, the defendant would not have benefited by an instruction that the defense was applicable to manslaughter in the second degree." Id., at 589, 569 A.2d 534. The defendant cites State v. Singleton , 292 Conn. 734, 763, 974 A.2d 679 (2009), for the proposition that he could not be the initial aggressor by his act of hitting Medina. In Singleton , our Supreme Court concluded that "the trial court's instructions that '[t]he initial aggressor is the person who first acts in such a manner that creates a reasonable belief in another person's mind that physical force is about to be used upon that other person' and that '[t]he first person to use physical force is not necessarily the initial aggressor' were entirely consistent with the law and thus were proper." Id. Our Supreme Court's holding in Singleton did not restrict the prosecutor in the present case from arguing that the defendant was the initial aggressor. The court instructed the jury with respect to initial aggressor as follows: "Another circumstance in which a person is not justified in using any degree of physical force in . self-defense against another is when he is the initial aggressor in the encounter with the other person and does not both withdraw from the encounter and effectively communicate his intent to do so, before using the physical force at issue in this case." The following colloquy occurred between Mendez and the prosecutor: "[Mendez]: . Um, so we, like, everybody was, like, trying to separate the fight and then, I guess, that's when [Tucker], like, he was preparing himself to fight, because he was going to defend [Medina]. And at that moment, I saw a quick movement, between [Tucker] and [the defendant], I wasn't too sure and then [Tucker] told me that he got stabbed.... "[The Prosecutor]: Okay. How far away were you from [Tucker] when that happened? "[Mendez]: Maybe, like, two feet away. "[The Prosecutor]: And, did you indicate that in all of your statements, that you saw that? "[Mendez]: Yes, sir." The following colloquy occurred between Adames and defense counsel: "[Defense Counsel]: Okay. But you didn't actually see [Tucker] get stabbed, did you? "[Adames]: No, I didn't see him get stabbed." Contrary to Fernandez' testimony, the defendant's father, Eliezer Ruiz, Sr., testified that his son, Eliezer, had a nickname of Junito. Absent this final claim of the prosecutor's improper reference to facts not in evidence, namely, the fact that the police officers did not believe this was a self-defense situation, all of the prosecutor's comments were proper. The due process analysis need not consider the comments which we have already determined were proper. See State v. Luster , 279 Conn. 414, 442, 902 A.2d 636 (2006). The court issued the following cautionary instruction: "Before I start, however, you heard the final arguments of counsel, and I had advised you earlier on that that's not evidence and that insofar as any inferences counsel requests you to draw, they must be based on the evidence that you've heard.... So, for example, [the prosecutor] indicated [his] opinion that he could argue to you that the police officers didn't believe this was a self-defense issue. There was no evidence as to what the officers believed, as far as that particular issue is concerned. It may be that if you were to hear the whole of the evidence, you could draw the inference, but it is not for counsel to draw that for you. "So, with that having been said, please, understand the limitations on final argument; it's not evidence, it should not include the opinions of the attorneys, and it should . only be based on evidence, and you are the finders of fact and the only finders of fact, in this case."

12492635

VALLEY NATIONAL BANK v. PRIVATE TRANSERVE, LLC, et al.

Valley Nat'l Bank v. Private Transerve, LLC

2018-01-30

AC 39542

1289

1292

179 A.3d 1289

179

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.410267+00:00

Fastcase

VALLEY NATIONAL BANK v. PRIVATE TRANSERVE, LLC, et al.

VALLEY NATIONAL BANK v. PRIVATE TRANSERVE, LLC, et al. AC 39542 Appellate Court of Connecticut. Argued November 28, 2017 Officially released January 30, 2018 John Tartaglia, self-represented, with whom, on the brief, was Linda Tartaglia, self-represented, the appellants (defendant John Tartaglia et al.). Andrew M. McPherson, with whom, on the brief, was William J. Kupinse, Jr., for the appellee (plaintiff). Prescott, Elgo and Harper, Js.

1651

10284

PER CURIAM. In this action seeking, inter alia, to enforce a personal guarantee of a mortgage note, the defendants John Tartaglia and Linda Tartaglia, against whom summary judgment as to liability only was rendered, appeal following a hearing in damages from the court's award of $967,467.59 in favor of the plaintiff, Valley National Bank. On appeal, the defendants argue that the court improperly (1) denied their motion to dismiss the action, in which they alleged that the plaintiff was not the owner of the debt at the time the action was commenced and, thus, lacked standing to prosecute the action; (2) granted summary judgment as to liability only despite the defendants' insistence that genuine issues of material facts existed regarding the plaintiff's ownership of the debt; (3) permitted the plaintiff to amend the complaint after summary judgment despite the defendants' contention that the amendment added a new cause of action; and (4) made several evidentiary rulings against the defendants at the hearing in damages. We are not persuaded by the defendants' claims and, accordingly, affirm the judgment of the court. The record reveals the following relevant facts and procedural history. The plaintiff commenced the underlying action in January, 2011. The initial complaint contained three counts. The first two counts sought to foreclose mortgages on two multifamily residential properties located in Bridgeport. The mortgages were executed by Private Transerve, LLC, as security for a revolving building promissory note of up to $500,000. The third count sought money damages based upon breach of an unconditional guarantee of the debts of Private Transerve, LLC. The guarantee was executed by the defendants and Geoffrey Minte. On May 31, 2013, the plaintiff filed a motion for summary judgment as to liability only. The defendants, Minte, and Private Transerve, LLC, filed an opposition. On October 23, 2013, after argument on the motion for summary judgment but prior to the court acting on that motion, the defendants, Minte, and Private Transerve, LLC, filed a motion to dismiss the action, claiming that the plaintiff lacked standing to bring the action, and, thus, the court lacked subject matter jurisdiction. The plaintiff opposed the motion to dismiss. On August 15, 2014, the court, Tyma, J., issued a decision denying the motion to dismiss. The court rejected all arguments that the plaintiff did not own the debt at the time the action was commenced in January, 2011, finding on the basis of the pleadings, affidavits, and other proof in the file that the note and mortgages initially had been assigned from the original lender, PAF Capital, LLC, to The Park Avenue Bank, and then, in June, 2010, were assigned to the plaintiff by the Federal Deposit Insurance Corporation acting as receiver for The Park Avenue Bank. The court moreover rejected all claims that there were problems affecting the validity of the aforementioned assignments. On August 17, 2015, the court, Hon. Alfred J. Jennings, judge trial referee, issued a decision granting the motion for summary judgment as to liability only on all counts of the complaint. The court again rejected all arguments regarding the plaintiff's lack of standing to prosecute the action, indicating that the original signed note had been presented and reviewed by the court and the defendants at the hearing on the motion for summary judgment. The court concluded that the plaintiff had made "an adequate showing of the prima facie elements of its case for foreclosure and breach of guaranty: ownership of the loan, default of payment, and notice of breach." During the pendency of the underlying action, the two properties at issue were foreclosed in separate actions brought by Bridgeport's water pollution control authority. In each of those actions, the plaintiff exercised its right to redeem each of the properties on its assigned law day. As a result, the plaintiff acquired title to the properties and rendered moot its own foreclosure counts in the present action. Each time the plaintiff acquired a property, it filed an amended complaint removing the related foreclosure count, eventually leaving a single count complaint seeking money damages on the basis of the defendants' breach of the personal guarantee of the debt. The last such amendment was the third amended complaint, to which the defendants objected, arguing, inter alia, that the plaintiff was attempting to correct defects in its prior pleadings or to change the cause of action alleged. The court overruled the defendants' objection and permitted the amendment. A hearing in damages was held by the court, Wenzel, J., on July 26 and August 2, 2016. John Tartaglia appeared as a self-represented party at the hearing. Linda Tartaglia and Minte did not appear. On August 11, 2016, the court issued a memorandum of decision awarding joint and several damages totaling $967,467.59 against the defendants and Minte. This appeal followed. On appeal, the defendants raise a number of claims, none of which warrants significant discussion. The court's granting of permission to file the third amended complaint and its evidentiary rulings at the hearing in damages were discretionary in nature and are entitled to deferential review. The defendants have failed to demonstrate that any of these rulings relied upon clearly erroneous factual findings or a misapprehension of the law, or that the court otherwise abused its discretion. As they have argued throughout these proceedings, the defendants continue to maintain that the plaintiff lacked standing to bring this action against them. Most of the arguments are identical to those raised in conjunction with both the motion to dismiss and the motion for summary judgment. On the basis of our review of the record provided, as well as the briefs and arguments of the parties, we are convinced that the claims raised before the trial court regarding standing lack merit and were properly rejected by the court for the reasons provided in its memoranda of decision. In short, the record reflects that the plaintiff established through documentary and other evidence that it was the owner of the debt at the time this action was commenced, and it would serve no useful purpose to engage in further discussion. The defendants attempt to breathe new life into their standing claim on appeal by bringing to our attention certain testimony provided by the plaintiff's agent at the hearing in damages in response to his cross-examination by John Tartaglia. In that testimony, the plaintiff's agent appears to agree with John Tartaglia's suggestion that the debt at issue was owned in 2010 by a corporate entity, VNB New York, Corp., that merged into and became the plaintiff sometime in 2011. The defendants suggest that this response amounted to an admission that the plaintiff did not own the debt when the action was initiated. Rather than truly implicating the plaintiff's standing, however, the defendants' argument seems only to cast doubt on whether the action was initiated under the proper corporate name, an issue never raised to the trial court. If such a defect exists here, which is not entirely clear from the record before us, it was amenable to correction in accordance with General Statutes § 52-109 and Practice Book § 9-20, and does not implicate the plaintiff's status as the owner of the debt or its standing to prosecute this action. See NewAlliance Bank v. Schaeppi , 139 Conn. App. 94, 97-98, 54 A.3d 1058 (2012) (distinguishing between challenges implicating proper assignment of note or mortgage between distinct parties and nomenclature problems arising from mergers and corporate name changes), cert. denied, 307 Conn. 948, 60 A.3d 737 (2013). Having thoroughly reviewed the record and the arguments of the parties, we conclude that the defendants have not met their burden of proving any of the claims raised on appeal. The judgment is affirmed. Geoffrey Minte, Private Transerve, LLC, and Randall Properties, LLC, also are named as defendants in the underlying action, but they did not participate in the present appeal, and, thus, all references to the defendants in this opinion are to the Tartaglias only. The remaining defendants are referred to by name. We note that the motion for summary judgment filed by the plaintiff only asked the court for a finding as to liability on the foreclosure counts. Nonetheless, in its decision, the court also granted summary judgment as to liability on the third count based on the personal guarantee. The defendants have not raised this discrepancy as an issue in the present appeal, or argued that the trial court exceeded its authority or otherwise committed reversible error in this regard. Absent extraordinary circumstances not present here, this court limits its review to those claims of error actually raised and adequately briefed by the parties. See Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc. , 311 Conn. 123, 161-64, 84 A.3d 840 (2014) ; see also id., at 164, 84 A.3d 840 ("our system is an adversarial one in which the burden ordinarily is on the parties to frame the issues, and the presumption is that issues not raised by the parties are deemed waived"). John Tartaglia, who is not an attorney, initially filed this appeal as a self-represented party, purportedly on his own behalf and on behalf of Linda Tartaglia. Linda Tartaglia subsequently filed a joint appeal consent form in compliance with Practice Book § 61-7 (a) (3). The defendants submitted a joint brief. We note that the transcript of the August 2, 2016 proceeding indicates that John Tartaglia misstated to the witness that the complaint had been filed in 2010. The record, however, shows that it was filed in February, 2011, shortly after this action was commenced.

12503309

U.S. BANK NATIONAL ASSOCIATION, Trustee v. Roger W. WOLF et al.

U.S. Bank Nat'l Ass'n v. Wolf

2018-12-04

AC 40326

411

411

196 A.3d 411

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

U.S. BANK NATIONAL ASSOCIATION, Trustee v. Roger W. WOLF et al.

U.S. BANK NATIONAL ASSOCIATION, Trustee v. Roger W. WOLF et al. AC 40326 Appellate Court of Connecticut. Argued November 15, 2018 Officially released December 4, 2018

45

270

Per Curiam. The judgment is affirmed and the case is remanded for the purpose of setting new law days.

12503502

IN RE MADISON M. et al.

In re Madison M.

2018-10-18

AC 41469

1024

1034

197 A.3d 1024

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

IN RE MADISON M. et al.

IN RE MADISON M. et al. AC 41469 Appellate Court of Connecticut. Argued September 6, 2018 Officially released October 18, 2018 David J. Reich, for the appellant (respondent father). Cynthia E. Mahon, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Jane Rosenberg, solicitor general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner). DiPentima, C. J., and Prescott and Flynn, Js. In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court. October 18, 2018, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

4572

28406

DiPENTIMA, C.J. The respondent, Donald S., appeals from the judgments of the trial court terminating his parental rights with respect to his minor children, Madison M., Deanna S., and Emma Grace S. On appeal, the respondent claims that he was not provided the specific steps mandated by General Statutes § 17a-112 (j) (3) (B) (i) and, consequently, was unable to achieve a level of rehabilitation that would reasonably encourage a belief that at some future date he could assume a responsible position in the lives of his children. Additionally, the respondent contends that the failure to provide him with the specific steps did not constitute harmless error. We do not agree with either argument and, therefore, affirm the judgments of the trial court. The following factual findings of the trial court, which are not challenged, and procedural history are relevant to our consideration of the issues raised on appeal. Prior to the filing of the neglect petitions, the Department of Children and Families (department) had received numerous reports that the respondent and the children's mother were not acting as responsible parents. In 2011, the department substantiated separate instances in which the parents had failed to follow up on important medical appointments for Madison and Deanna. The next year, the department also substantiated a report that the parents had cancelled appointments for Emma Grace, only three months old at the time, against the advice of her doctor. Then, in 2013, Emma Grace missed multiple appointments with medical specialists, as well as appointments with her pediatrician. The parents were arrested in September, 2014, on charges of risk of injury to a child; see General Statutes § 53-21 ; after Deanna, then six years old, was found wandering alone outside in a dirty and disheveled condition. Several months later, in April, 2015, the department received a report from Deanna's school that there was a six inch red mark on her backside. Deanna told school staff that the respondent had struck her with a knife and that he sometimes hits her with a belt. She also told school staff that "it hurts" when he hits her, but that she was "not afraid to go home." (Internal quotation marks omitted.) Following an investigation, however, "the department decided not to substantiate either parent for neglect." During this time, the respondent was cooperative with the department's investigation. In May, 2015, he informed the assigned investigative social worker that Madison had been exhibiting behavioral issues at school and scheduled a meeting to address her individualized needs. Then, on June 2, 2015, he contacted the department to notify officials that Emma Grace had been injured when the stroller she was in fell down a flight of stairs onto pavement. Two days later, on June 4, 2015, however, the department received reports that the respondent had been arrested on June 3, 2015, for breach of peace and interfering with a police officer, stemming from an incident at the family's home. The department's follow-up investigation revealed that the respondent had been drinking and acting "nasty" toward the mother. She told him to leave, but he refused. He later passed out in the backyard. When he woke up, he began ringing neighbors' doorbells and screaming. At some point, the mother called the police, and he was arrested. In connection with this incident, a protective order was issued, and the respondent moved out of the family's home. The next day, June 5, 2015, the respondent attended an evaluation at Wheeler Clinic for mental health and substance abuse issues. It was recommended that he enroll in an intensive outpatient program at its facility. He agreed and successfully completed the program in July, 2015. The respondent was then referred to a relapse prevention group. Shortly after enrolling in this program, however, he was discharged "unsuccessfully" after he notified Wheeler Clinic staff that he was moving to New Haven. In August, 2015, the respondent again was arrested, this time on motor vehicle charges. He failed to appear in court on these charges, as well as the criminal charges from the June 3, 2015 incident. Then, in October, 2015, police began an investigation into allegations made by the mother that the respondent had sexually assaulted Madison. Although the police eventually concluded that there was insufficient evidence to charge him, it was at this time that the respondent's whereabouts became unknown to the department. In December, 2015, department social worker Brenda Matta was assigned to the children's case. She attempted to contact the respondent by using phone numbers that the department had listed for him but was unsuccessful. She also contacted a friend of the respondent and left a message for him; her call was not returned. After searching the state Judicial Branch website, Matta found two addresses for the respondent and sent letters to these locations. She received no reply. On December 18, 2015, following a report that the mother and her new husband were consuming large amounts of alcohol while caring for the children, the department invoked a ninety-six hour hold on all three children. Four days later, petitions were filed alleging that the children were neglected. The same day, the petitioner, the Commissioner of Children and Families, also sought and obtained an ex parte order of temporary custody for each of the three children. In granting the orders of temporary custody, the court also ordered preliminary specific steps for the respondent and the mother. Matta testified that, at the time, the whereabouts of the respondent remained unknown, and notice of the orders of temporary custody was made by publication. A preliminary hearing on the ex parte orders of temporary custody was held on December 29, 2015; neither parent attended. At the preliminary hearing on the orders of temporary custody, the court found that abode service had been made on the mother and sustained the orders without prejudice to the respondent, as publication was still pending. On January 27, 2016, a preliminary hearing on the neglect petitions was held, which neither parent attended. After finding proper service and compliance with Practice Book § 17-21, the court entered defaults against both parents for failing to appear, adjudicated the children to be neglected and ordered the petitioner to file a motion to review the permanency plan by September 13, 2016. The children were committed to the care of the petitioner and specific steps were again ordered for each parent. Finally, in February, 2016, the department was able to speak with the respondent after an official from Deanna's school contacted Matta and informed her that they had received a phone call from an individual claiming to be Deanna's father. Matta called the number the school provided and spoke with an individual who identified himself as the respondent. During their conversation, the respondent said he wanted to see his children but refused to provide his address. He became loud, threatening, and verbally abusive, before hanging up. Sometime between March and July, 2016, Matta attempted to contact him again at the same number but was unsuccessful. In July, 2016, after nearly a year of evading detection, the respondent was arrested and incarcerated. Two months later, Madison informed her therapist that the respondent had sexually abused her and her two sisters, and the therapist reported the allegations of sexual abuse to the department. On September 16, 2016, the petitioner, pursuant to Practice Book § 34a-23, filed a motion for emergency relief seeking an order suspending the respondent's visits with the three children until the department completed an investigation into the allegations of sexual abuse. The court granted the petitioner's motion ex parte the same day it was filed. Following an investigation into the allegations, the respondent was arrested and charged with multiple felonies. The charges remained pending as of the date of the court's decision to terminate the respondent's parental rights. Approximately one month after issuing the emergency ex parte order suspending the respondent's visitation rights, the court held a hearing on the petitioner's motion to review the permanency plan. At this hearing, the petitioner notified the court for the first time that the respondent was incarcerated. The hearing was continued until November 9, 2016, at which time the respondent appeared and was appointed counsel. Initially, the respondent, through counsel, objected to the petitioner's motion; however, at the evidentiary hearing on December 7, 2016, the respondent withdrew his objection. During the hearing, and in the presence of the respondent and his attorney, the petitioner introduced as an exhibit a social study in support of her motion to review the permanency plan, which included the specific steps ordered by the court on January 27, 2016. At the end of the hearing, the court approved the permanency plans of termination of parental rights and adoption. Upon learning that the respondent was incarcerated, Matta began sending letters to him once a month. The letters identified her as the social worker assigned to the family's case, requested the respondent's participation in the case, and provided him with her direct line. He did not respond to these letters. In December, 2016, Matta was able to speak with the respondent over the phone, at which time he told her that he did not want the department to contact him anymore. Despite this statement, Matta continued to send him letters. She spoke with the respondent once more in May, 2017, this time seeking information for the termination of parental rights social study. During their conversation, the respondent became angry and stopped answering questions. On April 27, 2017, petitions were filed seeking to terminate the parental rights of the respondent. The petitions alleged grounds for termination pursuant to § 17a-112 (j) (3) (B) (i) and (C). On October 24 and 30, 2017, a trial was held on the petitions to terminate. Following the presentation of evidence and closing arguments, the court ordered posttrial briefs addressing the issue of whether the respondent had been provided the specific steps, as required by statute, and heard oral argument from the parties on December 6, 2017. In a thorough and well reasoned memorandum of decision, dated February 7, 2018, the trial court granted the termination petitions with respect to all three children and rendered judgments accordingly. In its decision, the court found that there was clear and convincing evidence that the department had made reasonable efforts to locate the respondent, and that he had been unwilling or unable to benefit from reunification efforts. Further, the court found that the respondent had failed to achieve a degree of personal rehabilitation that would encourage a belief that, within a reasonable time, he could assume a responsible position in the lives of his children. See General Statutes § 17a-112 (j) (3) (B) (i). Concomitantly, the court found that the respondent had been provided the specific steps as required by statute and, alternatively, in light of his absconding and refusal to cooperate with the department's investigation, failure to provide him with the steps was harmless error. This appeal followed. Additional facts will be set forth as necessary. The issue presented on appeal is whether the trial court erred in holding that the respondent had been "provided" specific rehabilitative steps in a manner that satisfies the requirements of § 17a-112 (j) (3) (B) (i) and, if so, whether failing to provide him with the steps was harmless. "Our review of the court's interpretation of this statute is plenary." In re Unique R. , 170 Conn. App. 833, 845, 156 A.3d 1 (2017). "Proceedings to terminate parental rights are governed by § 17a-112.... Under [that provision], a hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more . grounds for termination of parental rights set forth in § 17a-112 [ (j) (3) ] exists by clear and convincing evidence. The [Commissioner of Children and Families] . in petitioning to terminate those rights, must allege and prove one or more of the statutory grounds." (Internal quotation marks omitted.) In re Mariana A. , 181 Conn. App. 415, 427, 186 A.3d 83 (2018)."Because a respondent's fundamental right to parent his or her child is at stake, [t]he statutory criteria must be strictly complied with before termination can be accomplished and adoption proceedings begun." (Internal quotation marks omitted.) In re Egypt E. , 327 Conn. 506, 527, 175 A.3d 21 (2018), cert. denied sub nom. Morsy E. v. Commissioner of Children & Families, No. 17-1549, - U.S. -, 139 S.Ct. 88, 202 L.Ed.2d 27, 2018 WL 2236878 (U.S. Oct 01, 2018). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ." (Internal quotation marks omitted.) In re Nevaeh W. , 317 Conn. 723, 729-30, 120 A.3d 1177 (2015). Pursuant to § 17a-112 (j) (3) (B), parental rights may be terminated if "the child (i) has been found by the Superior Court or the Probate Court to have been neglected, abused or uncared for in a prior proceeding, or (ii) is found to be neglected, abused or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child ." Further, in In re Elvin G. , 310 Conn. 485, 500-506, 78 A.3d 797 (2013), overruled in part on other grounds by In re Shane M. , 318 Conn. 569, 587-88, 122 A.3d 1247 (2015), our Supreme Court concluded that the specific steps requirement found in subparagraph (B) applies to both clauses (i) and (ii), and, in most cases, when seeking to terminate parental rights under either ground, the petitioner must show by clear and convincing evidence that steps had been ordered and provided to the respondent. Neither the statute nor our case law, however, establishes a definition of the term "provided." The respondent argues that "provided," as it is used in the context of this statute, requires physical delivery of the specific steps to the parent. In this regard, the respondent contends that at some point following his appearance in this case at the November, 2016 hearing, the petitioner or the court should have given him a copy of the previously ordered specific steps or, at the very least, communicated those steps, and their significance, to him. He claims that failure to do so was tantamount to noncompliance with the requirements of § 17a-112 (j) (3) (B) (i), for which we must reverse the judgments of termination. We are not persuaded. As our Supreme Court explained in In re Elvin G. , supra, 310 Conn. at 507-508, 78 A.3d 797, the "[s]pecific steps provide notice and guidance to a parent as to what should be done to facilitate reunification and prevent termination of rights. Their completion or noncompletion, however, does not guarantee any outcome. A parent may complete all of the specific steps and still be found to have failed to rehabilitate.... Conversely, a parent could fall somewhat short in completing the ordered steps, but still be found to have achieved sufficient progress so as to preclude a termination of his or her rights based on a failure to rehabilitate." (Citation omitted.) In some respects, "[t]he specific steps are [simply] a benchmark by which the court will measure the respondent's conduct to determine whether termination is appropriate pursuant to § 17a-112 (j) (3) (B)." (Internal quotation marks omitted.) In re Shane M. , 148 Conn. App. 308, 329, 84 A.3d 1265 (2014), aff'd, 318 Conn. 569, 122 A.3d 1247 (2015). Indeed, when "determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department." (Internal quotation marks omitted.) In re Jazmine B. , 121 Conn. App. 376, 390-91, 996 A.2d 286, cert. denied, 297 Conn. 924, 998 A.2d 168 (2010). The petitioner contends that just as General Statutes § 45a-716, which § 17a-112 incorporates by reference, allows for multiple means of legal service, we should construe "provide" in a similar flexible and administratively efficient fashion. For her part, the petitioner claims that this position is logically consistent with the plain meaning of "provide," which is defined as "to supply or make something available ." See Merriam-Webster's Collegiate Dictionary (11th Ed. 2003); see also Vazquez v. Buhl , 150 Conn. App. 117, 129, 90 A.3d 331 (2014) ("[a]ccording to one dictionary, the definition of 'provide' is to: 'make (something) available' or 'supply (something that is wanted or needed) .' "). From this common definition, it is argued, one cannot necessarily infer that "provide" requires a direct conveyance from one person to another. Although we find merit in this position, we are reluctant to graft into the statute a one-size-fits-all definition prescribing the efforts the petitioner must undertake in order to ensure that a respondent is apprised of the specific steps. Rather, it is more consistent with our jurisprudence in this area that this issue be addressed on a case-by-case basis in light of the particular facts before the court. See, e.g., In re Stanley D. , 61 Conn. App. 224, 231, 763 A.2d 83 (2000) (noting that for purposes of § 17a-112"reasonable time" is factual determination to be made on case-by-case basis). In this regard, there might be some circumstances where merely making the specific steps available in the court file would be inadequate given the respondent's involvement in the case and cooperation with the department. Conversely, where the respondent has evaded detection intentionally and/or refused to respond to the department's inquiries, we do not believe that physical delivery of the steps is a necessary measure. The upshot of this approach is that the court balances the respondent's willingness to participate in the proceedings against the petitioner's efforts to notify the parent of the actions needed to facilitate reunification and avoid termination. Applying this approach to the unchallenged facts of this case, we conclude that the respondent was provided with the specific steps, as required by § 17a-112 (j) (3) (B) (i). In December, 2015, when the children were first placed in the custody of the petitioner, the respondent was on the run from the law. During the initial stages of these proceedings, the department attempted to contact him by calling several numbers on file, leaving a message with a friend, and sending letters to addresses associated with him. Further, once contact was made with the respondent in February, 2016, he refused to provide the department with his location, became argumentative, and eventually hung up on the department social worker. After he was incarcerated and appeared in court, the previously ordered steps were admitted as an exhibit during the December, 2016 evidentiary hearing. At this time, the steps would have been accessible to the respondent and his attorney, if they had not been already. Finally, in the months leading up to the October, 2017 trial, the department sent several letters to the respondent asking for his cooperation with the termination of parental rights social study, but received no reply. Accordingly, given the respondent's recalcitrance throughout this process, the petitioner's efforts were more than sufficient to ensure that he knew specific steps had been ordered and that those steps were important to preserving his parental rights. To require physical delivery of the steps in this circumstance would only encourage respondents to take a contentious or evasive posture during the pendency of their case. Even if we were to determine, however, that the respondent had not been provided the specific steps, such an omission simply would constitute harmless error in this context. As in In re Elvin G. , supra, 310 Conn. at 509-17, 78 A.3d 797, where hindsight demonstrates that the respondent would have been unable or unwilling to observe specific steps, had they been provided, the absence of such steps does not vitiate an otherwise valid judgment. Here, the steps ordered in December, 2015, and January, 2016, required the respondent to obtain adequate housing and income, avoid involvement with the criminal justice system, and maintain a safe, stable and nurturing home environment, all of which he could not accomplish given his incarceration. Moreover, following new allegations of sexual abuse, the respondent was no longer permitted to visit with the children, which in turn prevented him from developing a cohesive relationship with them, which was another required step. Finally, many of the steps mandated that the respondent cooperate and communicate regularly with the department, which as evidenced in the record, he failed to do repeatedly. We find our conclusion of harmless error further supported by the fact that the respondent does not contest the trial court's finding that he failed to rehabilitate. In deciding to terminate his parental rights, the trial court found that the respondent was not ready to assume a responsible position in the lives of the children, especially in view of the childrens' ages and particular needs. Additionally, the court noted that it was the respondent's untreated substance abuse issues and general criminality that initially led to his separation from the children. There was no indication from his conduct throughout the proceedings, even following his incarceration, that he had any intention of addressing these problems or becoming a stable and dependable figure in the lives of his children. As such, any physical delivery, if required, of specific steps would have been a futile endeavor in light of the respondent's attitude toward the department and reluctance to change for the better. See In re Jazmine B. , supra, 121 Conn. App. at 390-91, 996 A.2d 286 ("[i]n determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department" [internal quotation marks omitted] ). The judgments are affirmed. In this opinion the other judges concurred. The children's mother consented to the termination of her parental rights and did not participate in this appeal. On September 5, 2018, the attorney for the minor children filed a statement pursuant to Practice Book § 67-13, adopting the position of the petitioner, the Commissioner of Children and Families. "The statutes governing permanency plans were adopted to comply with federal law regulating state access to federal funding for children who have been removed from their parents . In order to continue to receive federal funds, Congress requires states to review permanency plans every twelve months. 42 U.S.C. § 622 (a) and (b) (8) (A) (ii) (2012)." (Citation omitted.) In re Mindy F. , 153 Conn. App. 809, 812-13 n.5, 104 A.3d 799 (2014), cert. denied, 315 Conn. 913, 106 A.3d 306 (2015) ; see also Practice Book § 35a-14. Prior to this order, the respondent had not visited with children at any point while they were in the custody of the petitioner. See footnote 3 of this opinion. On May 23, 2018, the trial court issued a corrected memorandum of decision, which fixed an error regarding the date on which it held a hearing on the motion to review the permanency plan. The court found that the petitioner had not met her burden of proof to establish grounds for termination under § 17a-112 (j) (3) (C). Specifically, the court considered evidence that a previous investigation into claims of sexual molestation by the respondent concluded that "the mother was instigating [Madison] to make the allegation." Additionally, the court noted "the vague nature of the current allegations, questions about [the respondent's] opportunity to abuse the children after their statements of affection for him, and the court's lack of opportunity to hear from police or the forensic interviewer about the children's statements or to hear testimony from the children themselves in order to assess the reliability and credibility of those allegations ." (Footnote omitted.) We do not address this issue on appeal, as the petitioner did not present it as an alternative ground to affirm. "Except as provided in subsection (d) of this section, notice of the hearing and a copy of the petition, certified by the petitioner, the petitioner's agent or attorney, or the clerk of the court, shall be served at least ten days before the date of the hearing by personal service or service at the person's usual place of abode on the persons enumerated in subsection (b) of this section who are within the state, and by first class mail on the Commissioner of Children and Families and the Attorney General. If the address of any person entitled to personal service or service at the person's usual place of abode is unknown, or if personal service or service at the person's usual place of abode cannot be reasonably effected within the state, or if any person enumerated in subsection (b) of this section is out of the state, a judge or the clerk of the court shall order notice to be given by registered or certified mail, return receipt requested, or by publication at least ten days before the date of the hearing. Any such publication shall be in a newspaper of general circulation in the place of the last-known address of the person to be notified, whether within or without this state, or, if no such address is known, in the place where the petition has been filed." General Statutes § 45a-716 (c).

12503306

STATE of Connecticut v. Ijahmon WALCOTT

State v. Walcott

2018-09-18

AC 40252

379

388

196 A.3d 379

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

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

STATE of Connecticut v. Ijahmon WALCOTT

STATE of Connecticut v. Ijahmon WALCOTT AC 40252 Appellate Court of Connecticut. Argued April 10, 2018 Officially released September 18, 2018 Dana H. Sanetti, assistant public defender, for the appellant (defendant). James A. Killen, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Richard J. Rubino, senior assistant state's attorney, for the appellee (state). DiPentima, C.J., and Alvord and Bear, Js.

4112

25453

ALVORD, J. The defendant, Ijahmon Walcott, appeals from the judgment of the trial court revoking his probation and imposing a sentence of thirteen years incarceration, execution suspended after four years, with three years of probation. On appeal, the defendant claims that the court abused its discretion by relying on unproven facts when it revoked his probation and sentenced him during the dispositional phase of the violation of probation proceeding. We affirm the judgment of the trial court. The following facts and procedural history are relevant to our resolution of this appeal. On September 9, 2005, the defendant pleaded guilty to one count of assault in the first degree, in violation of General Statutes § 53a-59 (a) (3), and one count of carrying a pistol without a permit, in violation of General Statutes (Rev. to 2003) § 29-35 (a). The two convictions arose from an incident that occurred on November 10, 2003, when the defendant was fifteen years old and shot a woman in the chest. The court imposed a total effective sentence of twenty-five years incarceration, suspended after twelve years, followed by five years of probation. In addition to the standard conditions of probation, the sentencing court imposed special conditions of probation. The defendant was released from incarceration on October 20, 2014, and his probationary period commenced. The standard and special conditions of his probation required, inter alia, the defendant to submit to random urine testing and mental health evaluation and/or treatment, not possess any drugs and/or narcotics, and "not violate any criminal law of the United States, this state or any other state or territory." On October 23, 2014, the defendant signed the conditions of probation form, acknowledging that he read the form, and that he understood the conditions and would abide by them. On December 7, 2015, the defendant, who was still on probation, was arrested and subsequently charged with, inter alia, criminal possession of a revolver in violation of General Statutes § 53a-217c, and possession of a controlled substance in violation of General Statutes § 21a-279 (a) (1). Thereafter, on March 31, 2016, he was charged with violating the conditions of his probation in violation of General Statutes § 53a-32. The record reveals that the following events led to the defendant's arrest on December 7, 2015. Officer Robert Fogg, a member of the shooting task force for the Hartford Police Department, testified that he was conducting surveillance in the vicinity of 80 Cabot Street in Hartford on December 7, 2015. He was accompanied by Detective Brian Connaughton from the Windsor Police Department. They were dressed in plain clothes and sat in an unmarked truck preparing to execute an arrest warrant for Antonio Keane and a search warrant for 80 Cabot Street. Although the defendant was not the target of the search warrant, Fogg and Connaughton observed the defendant leave through the front door of 80 Cabot Street and lock the door behind him with a key. Fogg and Connaughton drove closer to the defendant, determined that he was not Keane, and continued to observe 80 Cabot Street. The defendant walked past the officers' truck multiple times, and Fogg and Connaughton, believing that the defendant had identified them as police officers, called upon other officers to continue the surveillance of 80 Cabot Street before they left the area. Later that day, officers saw Keane leaving 80 Cabot Street, and took him into custody while other members of the shooting task force secured the house. Fogg and Connaughton returned to 80 Cabot Street with the search warrant, and they joined the other officers. Keane did not have a key on his person, and the officers had to break down the door in order to execute the search warrant. The officers searched the apartment that is located on the second and third floors, which has two bedrooms on each floor. In one of the bedrooms on the second floor, which Fogg identified as Keane's bedroom, the officers found plastic bags next to a glass container, which contained a razor blade and a digital scale; there was a white residue on the razor blade, scale, and container. In the drawer of a nightstand in Keane's bedroom, the officers found a plate containing a white, rock-like substance, another razor blade, and a second digital scale. Officers also found several individually packaged pieces of a white, rock-like substance. Connaughton performed a field test on the rock-like substances, and they tested positive for the presumptive presence of crack cocaine. Fogg also testified that, in a pair of athletic shoes in a closet in one of the bedrooms on the third floor, they found a small revolver, a few bullets, and a bag containing a white, rock-like substance; the revolver was sticking out of the right shoe with the bullets resting on top of the shoe, and the white, rock-like substance was protruding from the left shoe. Connaughton performed a field test on the substance, and it tested positive for the presumptive presence of crack cocaine. Fogg further testified that officers found additional ammunition throughout that bedroom, including a loaded magazine for a firearm. In that same bedroom, among various personal items and clothing, the officers also found a letter addressed to the defendant with his address listed as 391 Shaker Road in Enfield, which, Fogg testified, is the location of a prison facility. After completing the search of the premises, the officers exited the house and observed the defendant playing basketball on the street in front of 80 Cabot Street. The officers identified the defendant and arrested him on the basis of an unrelated warrant, but they subsequently also charged the defendant with possession of the revolver and narcotics that were found in the third floor bedroom closet at 80 Cabot Street. The defendant signed a form acknowledging that he received Miranda warnings and waived his right to an attorney. Fogg then conducted an interview, during which the defendant stated that the clothes and personal items in the third floor bedroom at 80 Cabot Street, the same room in which the revolver and narcotics had been found, belonged to him. Although he stated that his possessions had been there for two months, he said that the revolver, ammunition, and narcotics did not belong to him. Keane, however, told the police that all of the illegal items found at 80 Cabot Street belonged to the defendant, and that the defendant had been living at 80 Cabot Street for more than one year. Keane also stated that his DNA likely would be found on the revolver, ammunition, and drugs because he had handled them in the past. A probation revocation hearing was held over the course of two days, on September 15 and 28, 2016. On September 28, 2016, the court issued its oral decision. The court found, and the defendant does not contest on appeal, that the state had established by a preponderance of the evidence that the defendant had violated the special conditions of his probation and the standard condition of his probation that he not violate any criminal law of this state. Specifically, the court found "by a preponderance of the evidence and on the reliable and credible evidence and the reasonable inferences to be drawn therefrom" that the defendant committed two crimes while he was on probation: possession of a controlled substance, in violation of § 21a-279 (a) (1), and criminal possession of a revolver, in violation of § 53a-217c (a). After finding that the defendant violated conditions of his probation, the court proceeded to the dispositional phase of the proceeding. The court heard from the state and defense counsel before issuing its oral decision. The court stated in relevant part: "It's significant also that after beginning probation he violated the conditions almost immediately, almost right away, those conditions dealing with drug treatment and so on, all have been gone into on the record earlier. So, with reference to the [constructive possession] crimes, the possession of a narcotic substance and, of course, the possession of a revolver by a convicted felon, those occurred very early on in probation, during probation, roughly perhaps a little bit over a year when that particular incident occurred with the execution of the search warrant at 80 Cabot Street, and the drugs and the revolver were found. And even before that, while on probation, there was the domestic offense, as the state pointed out, and that involved, I'm told, assaultive conduct. So, right out of the state's prison and then there were these matters, negative matters, concerning his performance on probation. "On the nonmitigating side of this is, as I alluded to, the seriousness of the possession of a revolver by a convicted felon . And this court has an obligation, a very serious obligation, balanced against rehabilitation, and a very serious obligation to undertake to effectuate the protection of society. And the possession of guns, particularly under these circumstances, in a premises which, as far as I can see from the evidence, was almost awash with drugs, illegal drugs. In any event, that's a very serious consideration and a very serious offense. "Weighing all of those circumstances, it's my opinion that a split sentence is still appropriate. As I said, I recognize the probation officer's position, but I don't think probation should give up quite at this point with somebody this age. And I would be inclined, in imposing a split sentence, to also impose a period of probation as opposed to the special parole, a sensible suggestion also, but I just think that perhaps probation would be more appropriate at this point." The court revoked the defendant's probation and sentenced him to thirteen years incarceration, execution suspended after four years, followed by three years of probation. This appeal followed. "[U]nder § 53a-32, a probation revocation hearing has two distinct components.... The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation.... If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant's probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . [and] . require the defendant to serve the sentence imposed or impose any lesser sentence.... In making this second determination, the trial court is vested with broad discretion.... "To support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation.... In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence.... This court may reverse the trial court's initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous.... A finding of fact is clearly erroneous when there is no evidence to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... In making this determination, every reasonable presumption must be given in favor of the trial court's ruling.... A fact is more probable than not when it is supported by a fair preponderance of the evidence." (Internal quotation marks omitted.) State v. Sherrod , 157 Conn. App. 376, 381-82, 115 A.3d 1167, cert. denied, 318 Conn. 904, 122 A.3d 633 (2015). On appeal, the defendant's sole claim is that the court abused its discretion by relying on unproven facts in sentencing him. The defendant argues that there was insufficient evidence to support the court's finding that he constructively possessed the narcotics and the revolver and, therefore, that the court abused its discretion by considering that unproven fact during the dispositional stage of the revocation proceeding. We disagree. As a preliminary matter, the defendant did not object to the court's consideration of the allegedly unproven facts, and, therefore, he requests that we review his unpreserved claim pursuant to State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The state argues that the record is inadequate for review because "it is not clear from the record whether the defendant's illegal possession of the firearm and narcotics was dispositive of the court's decision to revoke his probation and impose the sentence it ultimately [imposed], in light of its determination that the defendant also had violated the conditions of his probation in a number of other ways as well, based on the domestic assault and his failure to comply with treatment and his possession of narcotics as proven by the failed urine tests." We, however, conclude that the record is adequate for review, and that the defendant's claim is of constitutional magnitude. See State v. Fletcher , 183 Conn. App. 1, 16, 191 A.3d 1068 (2018) ("[w]e will review the claim under Golding because the record is adequate for review and the claim implicates the defendant's due process right not to be sentenced on the basis of improper factors or erroneous information"). Accordingly, we proceed to the third prong of Golding to determine whether a constitutional violation exists, thereby depriving the defendant of a fair trial. See footnote 4 of this opinion. We conclude that a constitutional violation does not exist. The following legal principles are relevant to the defendant's claim. Section 21a-279 (a) (1) provides in relevant part that "[a]ny person who possesses or has under such person's control any quantity of any controlled substance . shall be guilty of a class A misdemeanor." "[T]o prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it." (Internal quotation marks omitted.) State v. Ellis T. , 92 Conn. App. 247, 251, 884 A.2d 437 (2005). "Where . the contraband is not found on the defendant's person, the state must proceed on the alternate theory of constructive possession, that is, possession without direct physical contact.... Where the defendant is not in exclusive possession of the [place] where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.... [T]he state had to prove that the defendant, and not some other person, possessed a substance that was of narcotic character with knowledge both of its narcotic character and the fact that he possessed it." (Emphasis omitted; internal quotation marks omitted.) State v. Diaz , 109 Conn. App. 519, 524-25, 952 A.2d 124, cert. denied, 289 Conn. 930, 958 A.2d 161 (2008). Section 53a-217c (a) provides in relevant part: "A person is guilty of criminal possession of a . revolver when such person possesses a . revolver . and (1) has been convicted of a felony ." " 'Possess,' as defined in General Statutes § 53a-3 (2), 'means to have physical possession or otherwise to exercise dominion or control over tangible property .' " State v. Diaz , supra, 109 Conn. App. at 525, 952 A.2d 124. "The essence of exercising control is not the manifestation of an act of control but instead it is the act of being in a position of control coupled with the requisite mental intent. In our criminal statutes involving possession, this control must be exercised intentionally and with knowledge of the character of the controlled object.... To prove that the defendant constructively possessed the [revolver], it was the state's burden to prove that he knowingly [had] the power and the intention at a given time of exercising dominion and control over [the revolver].... When, as here, the doctrine of non-exclusive possession also is implicated, the state bears the burden of proving that there were incriminating statements or circumstances . other than the discovery of the [revolver] in the residence he shared with [others], tending to buttress the inference that he knew of the [revolver's] presence and had control over it." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., at 525-26, 952 A.2d 124. Because the revolver and the narcotics in this case were not found on the defendant's person, it was necessary for the state to prove that he constructively possessed those items; the defendant claims that the state failed to do so. We disagree. In its oral ruling, the court found that "all the elements of both crimes have been proven by a fair preponderance of the evidence; that is, on the credible, probative, and reliable evidence." The court also explained: "Now, both of these crimes are possessory offenses . And the central issue here is constructive possession. It is my view that the credible, probative, and reliable evidence establishes by a preponderance, that is, more probable than not, that [the] defendant knowingly had constructive possession of the cocaine and the revolver and, for that matter, all of the items seized by the [police] officers executing the search warrant on that third floor of the premises." The court noted several factors indicating that the defendant constructively possessed the revolver and narcotics, including: the officers observed the defendant leave 80 Cabot Street and lock the door behind him with a key; the revolver was "very visible" in a sneaker in the bedroom closet; the officers found a letter addressed to the defendant in the same bedroom in which the revolver and narcotics were found; and, after the defendant had been arrested, he told the officers that he had kept his belongings at 80 Cabot Street for more than two months. On the basis of that evidence, the court concluded that "the reasonable inference is that [the defendant] had control over those premises, that he did, during that period, have considerable presence in those premises. In my opinion, an inference can be drawn that that's where he was residing at that point in time. But in any event, he certainly was in an area where he had dominion and control. I think the key and the letter certainly indicate what I've just said, together with the defendant's statements to the police . As I said, the gun and the drugs, the gun found in a pair of sneakers-again, we're getting into the area of personal belongings, and that's all consistent with the defendant's statement or admission to the police ." The defendant argues that his "considerable presence" at 80 Cabot Street "does not rise to the level of dominion and control over an area, let alone over items contained within that area.... [T]he state did not provide sufficient evidence of a reliable nexus between the defendant and the premises, and certainly not between the defendant and the contraband." The defendant relies on several cases to support his argument. These cases, cited as relevant examples of constructive possession, however, involve appeals from criminal convictions, where the burden on the state is much higher, as it is required to prove possession beyond a reasonable doubt. See, e.g., State v. Nova , 161 Conn. App. 708, 716-18, 129 A.3d 146 (2015) ; State v. Gainey , 116 Conn. App. 710, 719-21, 977 A.2d 257 (2009) ; State v. Williams , 110 Conn. App. 778, 783-93, 956 A.2d 1176, cert. denied, 289 Conn. 957, 961 A.2d 424 (2008). By contrast, in a revocation of probation case, the state is required to prove a violation only by a preponderance of the evidence. See, e.g., State v. Milner , 130 Conn. App. 19, 35, 21 A.3d 907 (2011) ("The court could have found by a preponderance of the evidence that the defendant constructively possessed the gun. Accordingly, the court did not err by taking into consideration the defendant's constructive possession of the gun when revoking the defendant's probation ."), appeal dismissed, 309 Conn. 744, 72 A.3d 1068 (2013). We, therefore, are not persuaded that the cases relied on by the defendant control or assist us in our resolution of his claim in the present case. After applying the applicable law to the record before us, we conclude that the court's factual finding that the defendant constructively possessed the revolver and narcotics was not clearly erroneous. The evidence presented established that the defendant had a key to 80 Cabot Street, which both Fogg and Connaughton observed the defendant use to lock the door after exiting that address in the morning before the search of the premises. In addition, the defendant admitted that he had been storing his personal belongings in the third floor bedroom at 80 Cabot Street for approximately two months, and the revolver and narcotics were found in a pair of sneakers in the closet in that third floor bedroom. Moreover, Keane told the police that although his DNA may be found on the revolver and narcotics, those items belonged to the defendant. All of the aforementioned facts support the court's reasonable inference that the defendant had a considerable presence in the premises, was aware of the presence and nature of the narcotics and the revolver, and exercised dominion and control over those items by placing them in the closet in the bedroom where he stored his personal belongings. Consequently, we conclude that there was sufficient evidence to support the court's finding, by a preponderance of the evidence, that the defendant possessed a revolver and narcotics. Because we conclude that the court properly found, by a fair preponderance of the evidence, that the defendant constructively possessed the revolver and narcotics, the defendant's claim that the court abused its discretion by considering that fact during the dispositional phase of the proceedings necessarily fails. The defendant has failed to demonstrate that a constitutional violation exists. The judgment is affirmed. In this opinion the other judges concurred. Miranda v. Arizona , 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The court found that the defendant violated the following special conditions of his probation: receive mental health evaluation and/or treatment, as recommended by the Office of Adult Probation; do not possess any drugs and/or narcotics; and submit to random urine tests. We note that defense counsel appeared to agree that there was sufficient evidence to support the court's findings when, during the dispositional phase of the proceeding, he stated: "With respect to the underlying conduct, you've heard the evidence. Your Honor found by a preponderance of the evidence that he did possess those things. I would submit to Your Honor that there's obviously evidence that's beyond a preponderance of the evidence that he constructively possessed those things . But-and I think the state would agree that it's not the strongest case in the world against my client." (Emphasis added.) Although the defendant claims that the evidence does not support the court's finding that he constructively possessed a revolver and narcotics, he does not claim that the court improperly found that he violated his probation on this ground, likely because the finding of a probation violation was based on multiple grounds. See footnote 1 of this opinion; see also State v. Fowler , 178 Conn. App. 332, 343-44, 175 A.3d 76 (2017) ("[A] violation of any one condition of probation would suffice to serve as a basis for revoking the defendant's probation.... Our law does not require the state to prove that all conditions alleged were violated; it is sufficient to prove that one was violated." [Internal quotation marks omitted.] ), cert. denied, 327 Conn. 999, 176 A.3d 556 (2018). Rather, he focuses on the court's reliance on this ground during the dispositional phase of the revocation hearing. Under Golding , "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis omitted; footnote omitted.) State v. Golding , supra, 213 Conn. at 239-40, 567 A.2d 823, as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015).

12504942

Cargil NICHOLSON v. COMMISSIONER OF CORRECTION

Nicholson v. Comm'r of Corr.

2018-12-04

AC 40101

573

594

199 A.3d 573

199

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:42.438369+00:00

Fastcase

Cargil NICHOLSON v. COMMISSIONER OF CORRECTION

Cargil NICHOLSON v. COMMISSIONER OF CORRECTION AC 40101 Appellate Court of Connecticut. Argued September 11, 2018 Officially released December 4, 2018 Desmond M. Ryan, assigned counsel, for the appellant (petitioner). Linda Currie-Zeffiro, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Emily D. Trudeau, assistant state's attorney, for the appellee (respondent). Sheldon, Moll and Mihalakos, Js.

10007

62984

MOLL, J. The petitioner, Cargil Nicholson, appeals from the denial of his amended petition for a writ of habeas corpus following the denial of his petition for certification to appeal. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal, (2) erroneously concluded that he failed to establish that his state and federal constitutional rights to the effective assistance of counsel were violated, (3) abused its discretion in declining to treat a witness at the habeas trial as an expert witness, and (4) abused its discretion in failing to review certain evidence admitted at the habeas trial prior to denying his amended petition for a writ of habeas corpus. We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal and, accordingly, dismiss the appeal. The following facts, as set forth by this court in the petitioner's direct appeal from his conviction, and procedural history are relevant to our disposition of the petitioner's claims. "On March 13, 2012, at approximately 6 p.m., the victim, James Cleary, was dropped off in front of his apartment building by Michael Vena and Vincent [Faulkner], with whom he had worked cutting down a tree that day. The victim carried his two chain saws with him into the apartment. Vena then drove around to the back of the apartment building, where he and Faulkner put the victim's climbing gear and ropes into the victim's van. The victim greeted his wife and put down his chain saws. The music from the apartment upstairs was quite loud, and the victim's wife complained to him. The victim proceeded to go upstairs, and his wife followed behind him. "The victim's wife remained down the hallway while the victim knocked on the [petitioner's] door, and the door opened. The victim started yelling at the [petitioner] to turn down the music. The victim was approximately fifty years old, weighed approximately 156 pounds, and was five feet, nine inches tall. The [petitioner], who was approximately five feet, seven inches to five feet, eight inches tall, and weighed approximately 175 pounds, then punched the victim in the face. The victim hit him back. The [petitioner] then pulled the victim into the apartment and a scuffle ensued, which was heard by the victim's wife, who had remained down the hallway. The [petitioner] called the victim 'the f-ing white devil.' The [petitioner] then repeatedly hit the victim with an umbrella. "The [petitioner's] live-in girlfriend, Tracy Wright, had been in the bathroom washing her hair when the scuffle first ensued. Upon exiting the bathroom, Wright saw the [petitioner] and the victim fighting. Wright tried to get between the victim and the [petitioner] to stop the fight, but the victim pushed her back. The [petitioner] then grabbed a stool with both hands and hit the victim in the back with it at least once, but may have hit him as many as four times. The force of the blow to the back was 'pretty hard,' hard enough that the victim would 'feel the pain.' Wright told the [petitioner] to put down the stool, thinking that the [petitioner] could hurt or kill the victim with the stool, and the [petitioner] complied. "Wright then grabbed the victim by the arm, and, while standing beside him, opened the door, and the victim went out into the hallway, proceeding sideways through the doorway. Although Wright did not notice any blood or witness the victim being stabbed, the [petitioner], after putting down the stool, had picked up a knife from the counter and had stabbed the victim in the back, either before or shortly after Wright had grabbed the victim by the arm. The stab wound in the victim's back was seven and one-quarter inches deep. After getting the victim out of the apartment, Wright called 911, telling the dispatcher that she had pushed the victim out the door. The [petitioner] washed off the knife before the police arrived. "The altercation inside the apartment took only seconds, and when the victim staggered out of the [petitioner's] apartment, he told his wife that the [petitioner] had stabbed him in the back. The victim's shirt was pulled up, his woolen cap had been pulled off, and he was bleeding from his back. Panic stricken, the victim's wife ran downstairs, where she grabbed her purse so that she could take the victim to the hospital. She then went into the hallway looking for the victim. When she could not find him in the hallway, she went outside to the front of the house, where she saw the victim fall to his knees. The victim then told his wife that he thought he was dying. The victim's wife realized that she did not have her car keys, so she returned to the apartment to get them. "Meanwhile, Vena, who had dropped the victim off at the front of the house only five to ten minutes earlier, had finished putting away the victim's gear and was leaving the property when he saw the victim lying on the steps. Vena saw blood and immediately told Faulkner to get out of the truck and to help the victim, which he did. The victim then 'stumbled' into the backseat of the truck, and Faulkner jumped into the front passenger's seat. The victim told Vena, 'He stabbed me.' Vena then called 911 and drove to the Main Street intersection, where he waited for the ambulance to arrive. The victim died as a result of the stab wound." (Footnote in original.) State v. Nicholson , 155 Conn. App. 499, 500-503, 109 A.3d 1010, cert. denied, 316 Conn. 913, 111 A.3d 884 (2015). The petitioner was arrested and charged with murder in violation of General Statutes § 53a-54a(a). The case was tried to a jury over the course of several days. During the first day of evidence, the state called the victim's wife to testify. During cross-examination, the victim's wife testified that the victim had been taking unspecified medications. The petitioner's criminal defense counsel, Jonathan Demirjian, asked her to identify those medications. The state objected to that inquiry, contending that the court needed to address a pending motion in limine filed by the state, which sought to preclude evidence of the victim's toxicology results. Outside of the jury's presence, Demirjian questioned the victim's wife about the victim's medications. She testified that the victim had been taking Soma for back pain, methadone, and an unidentified antianxiety medication. Demirjian informed the trial court that he intended to elicit testimony from the victim's wife about the victim's medications in front of the jury, asserting that the testimony was relevant to the victim's state of mind and conduct during the altercation with the petitioner. The state objected, arguing that the testimony regarding the medications constituted inadmissible character evidence. Following argument, the court stated: "I think the connection you're trying to draw is that these substances made [the victim] act in a bizarre manner. And I'm not so sure that connection can be drawn on this state of the evidence. Anyways I'll ponder the issue and rule tomorrow." The following day, the court stated: "We left off last - yesterday afternoon talking about the fact that the victim was on a Methadone maintenance program and had used some substance for backaches or muscle aches. At this point in time I've concluded that the [state is] correct in [its] objection that that's not relevant and it would be unduly prejudicial. It would merely invite speculation on the part of the jury so the state's request with respect to its motion in limine is granted." On the third day of evidence, the state called H. Wayne Carver, the chief state medical examiner, who had performed the victim's autopsy, to testify. Before beginning his cross-examination of Dr. Carver and outside of the jury's presence, Demirjian informed the court that he intended to question Dr. Carver regarding the toxicological results from the victim's autopsy. Demirjian offered to the court the victim's autopsy report, attached to which was the victim's toxicology report. The document was marked as an exhibit for identification. Demirjian argued that the toxicology report indicated that several drugs were found in the victim's system at the time of his death and that those drugs likely affected the victim's state of mind and conduct during the altercation with the petitioner. The state objected, arguing that the proffered evidence regarding the drugs constituted inadmissible character evidence and was irrelevant. The state further argued that the petitioner had not disclosed an expert to provide testimony explaining the effects of the drugs on the victim's state of mind at the time of the altercation. Following argument, the court stated: "Dr. Carver has testified about the manner and cause of death and I don't see how drugs in a system relate to a stab wound having caused the death, so it's not relevant on that issue. And then Mr. Demirjian you've claimed that the substances and the drugs in the [victim's] body may relate to other issues in the case, that is the [victim's] state of mind.... The state has not at this point put [the victim's] state of mind in issue and neither side has. So it's just not relevant to the cross-examination of Dr. [Carver]. And putting that evidence in the case would just leave the groundwork for the jury to speculate in the absence of any evidence as to how such drugs would affect [the victim's] state of mind. So the court's ruling is that it does not relate to the direct examination of Dr. Carver and therefore the state's motion [in limine] is granted." During the petitioner's case-in-chief in the criminal trial, Demirjian called several witnesses to testify, including the petitioner. Demirjian did not call an expert witness to offer testimony regarding the presence and effects of the drugs found in the victim's system. The petitioner raised defense of premises as a justification defense at the criminal trial, and the trial court instructed the jury on this defense. State v. Nicholson , supra, 155 Conn. App. at 503, 109 A.3d 1010. The petitioner was found not guilty on the murder charge, but he was convicted of manslaughter in the first degree in violation of General Statutes § 53a-55. Id. The petitioner appealed from the judgment of conviction, claiming that the state failed to present sufficient evidence to disprove his defense of premises justification defense beyond a reasonable doubt and that the prosecutor engaged in impropriety during closing argument. Id., at 500, 109 A.3d 1010. This court affirmed the judgment. Id., at 519, 109 A.3d 1010. On March 19, 2014, the petitioner, representing himself, filed a petition for a writ of habeas corpus. On July 12, 2016, after appointed habeas counsel had appeared on his behalf, the petitioner filed an amended one count petition claiming that Demirjian rendered ineffective assistance by failing to call Dr. Carver or another expert witness during the criminal trial to lay foundational testimony to admit the victim's toxicology report into evidence. On January 10, 2017, the habeas court, Fuger, J. , held a one day trial. The court heard testimony from Joel Milzoff, a forensic toxicologist, and Demirjian. The petitioner did not testify. Immediately following the parties' respective closing arguments, the court issued an oral decision from the bench denying the amended petition. Thereafter, the petitioner filed a petition for certification to appeal from the judgment denying the amended petition, which the court denied. This appeal followed. Additional facts and procedural history will be set forth as necessary. I The petitioner first claims that the habeas court abused its discretion in denying his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. We disagree. We begin by "setting forth the procedural hurdles that the petitioner must surmount to obtain appellate review of the merits of a habeas court's denial of the [amended] habeas petition following denial of certification to appeal. In Simms v. Warden , 229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme Court] concluded that . [General Statutes] § 52-470(b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden , 230 Conn. 608, 615-16, 646 A.2d 126 (1994), [our Supreme Court] incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds , 498 U.S. 430, 431-32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits.... In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous." (Emphasis in original; internal quotation marks omitted.) Grover v. Commissioner of Correction , 183 Conn. App. 804, 811-12, 194 A.3d 316, cert. denied, 330 Conn. 933, 194 A.3d 1196 (2018). For the reasons set forth in parts II, III, and IV of this opinion, we conclude that the petitioner has failed to demonstrate that his claims are debatable among jurists of reason, a court could resolve the issues in a different manner, or the questions are adequate to deserve encouragement to proceed further. Thus, we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal. II We now turn to the petitioner's substantive claims on appeal. The petitioner's first substantive claim is that the habeas court erroneously concluded that he failed to establish that Demirjian rendered ineffective assistance. Specifically, the petitioner asserts that Demirjian rendered deficient performance by failing to call an expert witness, namely, Dr. Milzoff, during the petitioner's case-in-chief at the criminal trial to support the petitioner's justification defense by offering testimony as to the presence and effects of the drugs found in the victim's system. We disagree. We begin by setting forth the relevant standard of review and legal principles that govern our review of the petitioner's claim. "The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous.... Historical facts constitute a recital of external events and the credibility of their narrators.... Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.... The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.... "[I]t is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington , [466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ].... As enunciated in Strickland v. Washington , supra, [at 687, 104 S.Ct. 2052], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel.... A claim of ineffective assistance of counsel consists of two components: [1] a performance prong and [2] a prejudice prong. To satisfy the performance prong . the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.... To satisfy the prejudice prong, [the petitioner] must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.... The [petitioner's] claim will succeed only if both prongs are satisfied.... The court, however, can find against a petitioner . on either the performance prong or the prejudice prong, whichever is easier." (Citation omitted; internal quotation marks omitted.) Chance v. Commissioner of Correction , 184 Conn. App. 524, 533-34, 195 A.3d 422, cert. denied, 330 Conn. 934, 194 A.3d 1196 (2018). The following additional facts and procedural history are relevant to the petitioner's claim. At the habeas trial, the petitioner called Dr. Milzoff as his first witness. Dr. Milzoff testified that the victim's toxicology report indicated that several drugs, including methadone, morphine, and Prozac, were found in the victim's system at the time of his death. He further provided testimony explaining the general effects of those drugs. He did not offer any testimony concerning whether Demirjian had contacted him around the time of the criminal trial to discuss the victim's toxicology report. The petitioner next called Demirjian as a witness, who testified as follows. He reviewed the victim's toxicology report before the criminal trial. He intended to cross-examine Dr. Carver about the drugs found in the victim's system, but the trial court precluded him from questioning Dr. Carver on that subject. In addition, Demirjian contacted two or three unidentified experts (whom he referred to as "drug people") to review the victim's toxicology report, but none of those individuals offered opinions supporting his argument that the drugs found in the victim's system increased the victim's aggression, which would have bolstered the petitioner's justification defense. Such experts informed him that methadone, one of the drugs found in the victim's system, had a calming effect. On the basis of the experts' unfavorable opinions, Demirjian decided not to retain an expert to testify during the petitioner's case-in-chief about the presence and effects of the drugs found in the victim's system. During redirect examination, the petitioner asked Demirjian whether he had contacted Dr. Milzoff to review the victim's toxicology report. The petitioner directed Demirjian to an excerpt from the criminal trial transcripts, which had been admitted into evidence at the habeas trial. The excerpt reflected that the state, in objecting to Demirjian's attempt to question Dr. Carver about the victim's toxicology report during cross-examination, argued that Demirjian had not represented that he had retained an expert to testify about the effects of the drugs found in the victim's system, although the state noted that "we heard mention of Dr. [Milzoff] some time ago, [but] we've heard nothing else, we've got no report from him." After reviewing the excerpt and his personal file, Demirjian testified that Dr. Milzoff may have been mentioned during the criminal trial, but he could not recall whether he had contacted Dr. Milzoff. In denying the petitioner's amended petition for a writ of habeas corpus, the habeas court determined that the petitioner failed to establish that Demirjian's performance was deficient. The court stated in relevant part: "Demirjian's testimony is that he explored the question of whether the toxicology report would lend credence to [the petitioner's] argument that this manslaughter was committed as self-defense.... Demirjian's testimony, stated in conclusory terms, was that none of the persons with whom he consulted were able to give him any information that would have been helpful in supporting the defense of self-defense. If anything, according to . Demirjian, the drugs contained within the tox report - toxicology report would have had a calming effect upon the victim rather than an agitating effect.... In this case it is clear that, number one, . Demirjian had the toxicology report. Number two, he investigated as to whether it would be of value in assisting [the petitioner] in his self-defense defense. Number three, he concluded, based upon his research and consultation with various people - various experts - that it would be of no value. Consequently, he didn't feel that it was worthwhile pursuing. And even if he had, the state had filed a motion in limine to prevent the admission of the tox report. I simply don't see any deficient performance on the part of Attorney Demirjian in this case." The court further determined that, even if Demirjian's performance had been deficient, the petitioner failed to demonstrate that he had been prejudiced by Demirjian's deficient performance. On appeal, the petitioner claims that Demirjian's failure to call Dr. Milzoff, of whom, the petitioner contends, Demirjian was aware and with whom Demirjian had consulted around the time of the criminal trial, constituted deficient performance. The petitioner further asserts that, had Demirjian retained Dr. Milzoff as an expert witness, Dr. Milzoff would have aided the petitioner's justification defense by testifying that the drugs found in the victim's system could have increased the victim's pain threshold, irritability, and agitation during the altercation with the petitioner. In response, the respondent, the Commissioner of Correction, argues, inter alia, that Demirjian made a reasonable strategic decision not to call an expert witness because Demirjian received opinions from several experts that were not favorable to the petitioner's justification defense. We agree with the respondent. "To prove his or her entitlement to relief pursuant to Strickland , a petitioner must first satisfy what the courts refer to as the performance prong; this requires that the petitioner demonstrate that his or her counsel's assistance was, in fact, ineffective in that counsel's performance was deficient. To establish that there was deficient performance by the petitioner's counsel, the petitioner must show that counsel's representation fell below an objective standard of reasonableness.... A reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance.... The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.... "[J]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.... In reconstructing the circumstances, a reviewing court is required not simply to give [the trial attorney] the benefit of the doubt . but to affirmatively entertain the range of possible reasons . counsel may have had for proceeding as [he] did ." (Citations omitted; internal quotation marks omitted.) Spearman v. Commissioner of Correction , 164 Conn. App. 530, 538-39, 138 A.3d 378, cert. denied, 321 Conn. 923, 138 A.3d 284 (2016). "As this court previously has observed, '[a] trial attorney is entitled to rely reasonably on the opinion of an expert witness . and is not required to continue searching for a different expert.' . Stephen S. v. Commissioner of Correction , 134 Conn. App. 801, 816, 40 A.3d 796, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012). Moreover, it is well established that when a criminal defense attorney consults with 'an expert in a relevant field' who thereafter apprises counsel that he or she cannot provide favorable testimony, counsel is 'entitled to rely reasonably on [that] opinion . and [is] not required to continue searching for a different expert.' Id., at 817, 40 A.3d 796 ; see also Brian S. v. Commissioner of Correction , 172 Conn. App. 535, 544, 160 A.3d 1110 ('[t]he fact that the petitioner later was able to present testimony at his habeas trial from . a different expert, perhaps more specialized than [the expert originally consulted by his criminal trial counsel] . did not establish that counsel's performance was deficient for relying on [the original] expert opinion in preparation for the petitioner's criminal trial'), cert. denied, 326 Conn. 904, 163 A.3d 1204 (2017). "As the United States Supreme Court has explained in the context of ineffective assistance of counsel claims, '[t]he selection of an expert witness is a paradigmatic example of the type of "strategic choic[e]" that, when made "after thorough investigation of [the] law and facts," is "virtually unchallengeable." ' [Hinton v. Alabama , 571 U.S. 263, 275, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) ] ; accord Brian S. v. Commissioner of Correction , supra, 172 Conn. App. at 543-44, 160 A.3d 1110 (rejecting claim of deficient performance when trial counsel consulted with expert, made strategic decision not to present his testimony at trial or to seek another opinion, and 'strategized that the best course of action' was alternate theory of defense); Bharrat v. Commissioner of Correction , 167 Conn. App. 158, 170, 143 A.3d 1106 (rejecting claim of deficient performance when trial counsel consulted with expert but ultimately 'made the reasonable, strategic decision not to call an expert witness at the underlying criminal trial'), cert. denied, 323 Conn. 924, 149 A.3d 982 (2016) ; Stephen S. v. Commissioner of Correction , supra, 134 Conn. App. at 817, 40 A.3d 796 (emphasizing that 'trial counsel is entitled to make strategic choices in preparation for trial')." Weaving v. Commissioner of Correction , 178 Conn. App. 658, 668-70, 179 A.3d 1272 (2017). In the present case, the habeas court found that Demirjian, after having consulted with various experts, concluded that the victim's toxicology report would be of no value to the petitioner's justification defense at the criminal trial. Under those circumstances, Demirjian's decision not to retain an expert constituted a reasonable tactical decision. See Arroyo v. Commissioner of Correction , 172 Conn. App. 442, 468, 160 A.3d 425 (counsel's decision not to retain expert was reasonable tactical decision where counsel had consulted with multiple experts, none of whom provided favorable opinions), cert. denied, 326 Conn. 921, 169 A.3d 235 (2017). Nevertheless, the petitioner appears to claim that the habeas court's finding that Demirjian had contacted various experts, none of whom provided him with opinions that supported the petitioner's justification defense, was clearly erroneous. According to the petitioner, the record reflects that Demirjian was aware of and had consulted with Dr. Milzoff around the time of the criminal trial. We disagree. Demirjian testified that Dr. Milzoff may have been mentioned during the criminal trial, but he could not recall whether he had contacted Dr. Milzoff. Demirjian's testimony does not reflect that Dr. Milzoff was known to him as a potential expert or that he had consulted with Dr. Milzoff around the time of the criminal trial. Further, Dr. Milzoff's testimony is silent as to whether he had communicated with Demirjian. Thus, we cannot conclude that the court's finding was clearly erroneous. In sum, we conclude that the habeas court properly determined that the petitioner failed to establish that Demirjian's performance was deficient and, therefore, the court did not abuse its discretion in denying the petitioner's petition for certification to appeal as to the ineffective assistance of counsel claim. III The petitioner's next substantive claim is that the habeas court abused its discretion in declining to treat Dr. Milzoff as an expert witness at the habeas trial. Specifically, the petitioner asserts that the court erroneously concluded that he was required to offer, and the court was required to accept, Dr. Milzoff as an expert witness as a prerequisite to the court treating Dr. Milzoff as an expert witness. The petitioner further asserts that the court's error was harmful. We agree with the petitioner that the court committed error, but we conclude that the petitioner has failed to demonstrate that the error was harmful. The following standard of review and legal principles govern our review of the petitioner's claim. "[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court's decision will not be disturbed.... Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.... In other words, [i]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.... It is well settled that [t]he true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue." (Citations omitted; internal quotation marks omitted.) State v. Rivera , 169 Conn. App. 343, 368-69, 150 A.3d 244 (2016), cert. denied, 324 Conn. 905, 152 A.3d 544 (2017). The following additional facts and procedural history are relevant to our resolution of this claim. On November 29, 2016, the petitioner filed with the habeas court a disclosure indicating that he intended to call Dr. Milzoff as an expert witness at the habeas trial. During the habeas trial, Dr. Milzoff offered testimony regarding his qualifications as an expert in the field of toxicology. He then testified as follows. On the basis of his review of the victim's toxicology report, he discovered that certain drugs, including methadone, morphine, and Prozac, were in the victim's system at the time of the victim's death. He explained that morphine either is administered directly as a pain reliever analgesic or is a metabolite of heroin, that some individuals exhibit aggressive tendencies when exposed to morphine, that side effects of Prozac include irritability, agitation, and panic attacks, and that methadone and morphine increase an individual's pain threshold. Although he could explain the general effects of those drugs, he could not provide an opinion as to how those drugs affected the victim individually. In denying the petitioner's amended petition for a writ of habeas corpus, the habeas court stated in relevant part: "First, this court is singularly unimpressed with the testimony of Dr. Milzoff. He did come in and testify as to some qualifications and alluded to the fact that he had been used as an expert witness numerous times in the past. But I will note that at no time did the petitioner move to have this court accept Dr. Milzoff as an expert witness." Citing § 7-2 of the Connecticut Code of Evidence and its accompanying commentary, the court then concluded that "it does seem implied that in order to be accepted as an expert witness - or treated as an expert witness - such a witness must be offered and accepted by the court as an expert. Well, that wasn't done here. That doesn't mean that the evidence presented by Dr. Milzoff is not in the record of this court. But this court does not have to recognize Dr. Milzoff as any sort of expert. So, with that comment, Dr. Milzoff's testimony was not persuasive." Notwithstanding the foregoing observations, the habeas court proceeded to address the substance of Dr. Milzoff's testimony. With respect to Dr. Milzoff's testimony that morphine was a metabolite of heroin, the court stated that the victim's autopsy report indicated that the victim had received emergency medical treatment and that, as an alternative explanation for the presence of morphine in his system, the victim may have been administered morphine in conjunction with the treatment. The court then commented that the record before it was "weak to the point of being nonexistent." Proceeding to address Dr. Milzoff's testimony that Prozac produced irritability and violent behavior, the court stated that it was "more or less common knowledge" that Prozac is commonly prescribed, particularly to treat depression, and that the court would have "found it to be far more beneficial to have a little more expert - a little more - I shouldn't say more - a little expert testimony as to the effects of Prozac." The court later stated that there was "little basis" for it to determine whether the levels of methadone, Prozac, and the other substances in the victim's system were abnormally high. On appeal, the petitioner claims that the habeas court erroneously declined to treat Dr. Milzoff as an expert witness on the sole ground that the petitioner did not make an express offer to the court to accept Dr. Milzoff as an expert witness. The petitioner asserts that Dr. Milzoff provided adequate testimony establishing his qualifications to testify as an expert witness, to which the respondent did not object, and that the court's refusal to qualify Dr. Milzoff as an expert witness had no nexus to Dr. Milzoff's knowledge or experience. The petitioner further asserts that the court's error was harmful because Dr. Milzoff's testimony at the habeas trial, if treated as expert testimony, would have established that an expert could have testified at the criminal trial in support of the petitioner's justification defense. Although we agree with the petitioner that the court erred in declining to treat Dr. Milzoff as an expert witness in this case, we conclude that the petitioner has failed to demonstrate that the court's error was harmful. The habeas court concluded that § 7-2 of the Connecticut Code of Evidence required the petitioner to offer, and the court to accept, Dr. Milzoff as an expert witness as a prerequisite to the court treating Dr. Milzoff as an expert witness. Section 7-2 provides: "A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue." The court also relied on the commentary to § 7-2 (2009), which was in effect at the time of its judgment and provided in relevant part: " Section 7-2 imposes two conditions on the admissibility of expert testimony. First, the witness must be qualified as an expert.... Whether a witness is sufficiently qualified to testify as an expert depends on whether, by virtue of the witness' knowledge, skill, experience, etc., his or her testimony will 'assist' the trier of fact.... The sufficiency of an expert witness' qualifications is a preliminary question for the court.... Second, the expert witness' testimony must assist the trier of fact in understanding the evidence or determining a fact in issue.... Crucial to this inquiry is a determination that the scientific, technical or specialized knowledge upon which the expert's testimony is based goes beyond the common knowledge and comprehension, i.e., 'beyond the average ken' of the average juror." (Citations omitted.) We do not construe § 7-2 of the Connecticut Code of Evidence and its accompanying commentary, either in effect at the time of the habeas court's judgment or presently, to require an explicit offer and acceptance of a witness as an expert in order for the witness to be treated as an expert witness. To qualify a witness as an expert, a party is "required to demonstrate that [the witness] ha[s] the special skill or knowledge directly applicable to a matter in issue . that [the witness'] skill or knowledge is not common to the average person, and [that the witness'] testimony would be helpful to the court or jury in considering the issues." (Internal quotation marks omitted.) Forte v. Citicorp Mortgage, Inc. , 90 Conn. App. 727, 735-36, 881 A.2d 386 (2005). "Although a court may decide to [declare a witness to be an expert] after an expert's qualifications are put on record, it is not required to do so by our rules of practice or case law. If [an opposing party] has an objection to the testimony or expression of opinion by such a witness, he has the opportunity to make it and have the court rule on it." (Footnote omitted.) State v. Heriberto M. , 116 Conn. App. 635, 645, 976 A.2d 804, cert. denied, 293 Conn. 936, 981 A.2d 1080 (2009). In the present case, the petitioner disclosed Dr. Milzoff as an expert prior to trial and elicited testimony from Dr. Milzoff establishing Dr. Milzoff's qualifications to testify as an expert witness. The respondent did not object to Dr. Milzoff's testimony. Under these circumstances, the court's refusal to treat Dr. Milzoff as an expert witness constituted error. Notwithstanding the foregoing, we conclude that the petitioner has failed to demonstrate that the error was harmful. "[T]he harmless error standard in a civil case is whether the improper ruling would likely affect the result.... Generally, a trial court's ruling will result in a new trial only if the ruling was both wrong and harmful.... A petition for a writ of habeas corpus is a civil action . therefore, in order to prevail, the petitioner must be able to satisfy the harmless error standard." (Citations omitted; emphasis in original; internal quotation marks omitted.) Gonzalez v. Commissioner of Correction , 127 Conn. App. 454, 460, 14 A.3d 1053, cert. denied, 302 Conn. 933, 28 A.3d 991 (2011). In the present case, the court determined that the petitioner failed to establish that Demirjian rendered deficient performance where Demirjian, after having consulted with several experts, concluded that the victim's toxicology report was of no value to the petitioner's justification defense at the criminal trial. Even if the court had treated Dr. Milzoff's testimony regarding the presence and effects of the drugs in the victim's system as expert testimony, that testimony was immaterial to the court's determination that Demirjian's performance was not deficient. Accordingly, the court's error was harmless. In sum, although we agree with the petitioner that the habeas court erred by declining to treat Dr. Milzoff as an expert witness at the habeas trial, we conclude that the petitioner has failed to demonstrate that the court's error was harmful and, therefore, the court did not abuse its discretion in denying the petition for certification to appeal as to this claim. IV The petitioner's final substantive claim is that the habeas court abused its discretion in failing to review certain evidence admitted at the habeas trial prior to denying his amended petition for a writ of habeas corpus. Specifically, the petitioner asserts that the court erroneously failed to review specific excerpts from the criminal trial transcripts. We disagree. "[T]he trier [of fact] is bound to consider all the evidence which has been admitted, as far as admissible, for all the purposes for which it was offered and claimed.... [W]e are not justified in finding error upon pure assumptions as to what the court may have done.... We cannot assume that the court's conclusions were reached without due weight having been given to the evidence presented and the facts found.... Unless the contrary appears, this court will assume that the court acted properly.... [I]f . [a] statement [by the court may] suggest that the court did not consider [certain] testimony, we . are entitled to presume that the trial court acted properly and considered all the evidence.... There is, of course, no presumption of error." (Citations omitted; internal quotation marks omitted.) Moye v. Commissioner of Correction , 168 Conn. App. 207, 229-30, 145 A.3d 362 (2016), cert. denied, 324 Conn. 905, 153 A.3d 653 (2017). The following additional facts and procedural history are relevant to this claim. During the petitioner's direct examination of Dr. Milzoff, the habeas court admitted into evidence, without objection from the respondent, a disc containing, inter alia, electronic copies of the criminal trial transcripts in their entirety. The petitioner explicitly referenced the transcripts on one occasion during the remainder of the evidentiary portion of the habeas trial. Specifically, during the petitioner's redirect examination of Demirjian, the petitioner directed Demirjian to the excerpt reflecting the state's comment during the criminal trial that there had been "mention" of Dr. Milzoff at some point. At the outset of its decision denying the petitioner's amended petition for a writ of habeas corpus, issued immediately following closing arguments, the habeas court stated: "Now, obviously, since you have introduced the transcript[s] of the [criminal] trial, I have not had an opportunity to review the transcript[s] of the trial. I don't believe such review is necessary to a resolution of the issue in front of this court." The petitioner did not contest those statements. On appeal, the petitioner claims that the habeas court erroneously failed to review specific excerpts from the criminal trial transcripts. Specifically, the petitioner asserts that the court should have reviewed the excerpt reflecting the state's comment during the criminal trial that there had been "mention" of "Dr. [Milzoff] some time ago ." The petitioner argues that this excerpt was critical for the court to review in assessing Demirjian's credibility. Further, the petitioner asserts that the court should have reviewed excerpts reflecting Demirjian's attempts to elicit testimony from the state's witnesses about the drugs found in the victim's system and containing the petitioner's testimony explaining his justification for the actions he took against the victim. The petitioner argues that those excerpts were crucial for the court to review in order to understand how Dr. Milzoff's testimony regarding the drugs found in the victim's system would have aided the petitioner's justification defense at the criminal trial. In response, the respondent argues, inter alia, that the transcripts were immaterial to the court's determination that Demirjian did not render deficient performance by failing to call an expert witness at the criminal trial. We agree with the respondent. "The issue of whether the habeas court must read every word of the underlying criminal trial transcript has been addressed previously by this court. In Evans v. Warden , 29 Conn. App. 274, 276-77, 613 A.2d 327 (1992), the petitioner alleged that his criminal appellate counsel rendered ineffective assistance by failing to raise a sufficiency of the evidence claim on direct appeal. At the habeas trial, the habeas court stated that 'I really don't think that I have any cause whatsoever to review the transcripts [of the underlying criminal trial],' and then denied the petition for a writ of habeas corpus.... On appeal, this court held that the habeas court abused its discretion by failing to read the trial transcript because [a] full and fair review of the petitioner's claim that . appellate counsel provided ineffective assistance in failing to include a sufficiency of the evidence claim in his direct appeal required the habeas court to read the trial transcript.... "Since Evans , this court has clarified that Evans does not stand for the proposition that a new hearing is [always] warranted [if] the habeas court does not review all of the evidence.... Although we recognize that the habeas court must consider all of the evidence admitted for all the purposes it is offered and claimed . we also recognize that the court is not obligated to review evidence that is not relevant to any issue under consideration . Additionally, [a]lthough a habeas court is obligated to give careful consideration to all the evidence . it does not have to read the full text of every exhibit.... "In Hull [v. Warden , 32 Conn. App. 170, 177, 628 A.2d 32, cert. denied, 227 Conn. 920, 632 A.2d 691 (1993) ], this court emphasized that the extent that the criminal trial transcript must be reviewed by the habeas court depends upon the nature and scope of the particular claim of ineffective assistance of counsel. The petitioner in Hull had alleged that his criminal trial counsel rendered ineffective assistance by failing to object to certain testimony.... The habeas court determined that trial counsel's conduct was not deficient, and, thus, did not reach the prejudice prong of Strickland . The habeas court further stated that it did not review certain exhibits admitted at the habeas trial because it did not consider them necessary to its decision.... "On appeal, this court, in reaching its decision, distinguished between the claim at issue in Hull and the claim at issue in Evans . In Evans , the petitioner's habeas claim had implicated the sufficiency of the evidence presented at the criminal trial, which require[s] the reviewing court to construe all of the evidence presented at trial.... Thus, the habeas court's refusal to review any, let alone all, of the criminal trial transcript required a new hearing. By contrast, in Hull , the petitioner's claims [were] exceedingly narrow in scope and concerned solely with the testimony of [certain witnesses]. This [was] particularly true because the habeas court . concluded that . the petitioner's counsel was not ineffective for failing to object to [certain testimony, and, thus], had no need to proceed to the second prong of the Strickland test concerning the potentially broader issue of prejudice.... Accordingly, this court concluded that the habeas court did not abuse its discretion by not reviewing the entire trial transcript because the habeas court reviewed the parties' pretrial briefs, heard substantial testimony and argument at the hearing, read the transcripts of [the testimony of the witness at issue], and was properly satisfied that . a review of the entire trial transcript . would [not] have been of any additional benefit.... "Likewise, in Rivera v. Commissioner of Correction , 51 Conn. App. 336, 338, 721 A.2d 918 (1998), this court held that the habeas court, in determining whether trial counsel rendered ineffective assistance, did not abuse its discretion by reading only the portions of the criminal trial transcript that counsel specifically referenced, although the entire criminal trial transcript had been admitted into evidence. In so doing, this court emphasized that the habeas court had reviewed the portions of the criminal trial transcript that the petitioner identified at the habeas trial as relevant to his claims, and, on appeal, the petitioner was unable to articulate in his brief or at oral argument any reason why the habeas court was required to read the entire transcript in light of his discrete, particularized claims of ineffective assistance of counsel [none of which implicated the sufficiency of the evidence admitted at the criminal trial]." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Moye v. Commissioner of Correction , supra, 168 Conn. App. at 230-32, 145 A.3d 362. In Moye v. Commissioner of Correction , supra, 168 Conn. App. at 233, 145 A.3d 362, this court reiterated that, pursuant to Hull and Rivera , the extent to which a habeas court is required to review criminal trial transcripts admitted into evidence at a habeas trial is "dependent upon the particular claim made and on which prong of Strickland the court based its determination." This court also pronounced that, absent the petitioner identifying on appeal the portions of the transcripts that "(1) would have altered the [habeas] court's determination and (2) the [habeas] court failed to read, this court is guided by the presumption that the habeas court acted properly and considered all the relevant evidence." Id., at 234, 145 A.3d 362. In Moye, the petitioner alleged in relevant part that his criminal defense counsel rendered ineffective assistance by failing to request a sequestration order. Id., at 212 n.3, 227, 145 A.3d 362. The petitioner filed a pretrial brief with portions of the criminal trial transcripts attached thereto. Id., at 227, 145 A.3d 362. At the habeas trial, several additional portions of the transcripts that had not been attached to the petitioner's pretrial brief were admitted into evidence. Id., at 227-28, 145 A.3d 362. In denying the petitioner's petition for a writ of habeas corpus, the habeas court stated: "I've read the petitioner's pretrial brief. I have not read all of the transcripts that have been provided. I don't know that it is necessary to do so. There have been references to those-to what has taken place." (Emphasis in original.) Id., at 228, 145 A.3d 362. The habeas court proceeded to determine that counsel's performance was not deficient and further that, even assuming that counsel's performance was deficient, the petitioner had not suffered any prejudice. Id., at 229, 145 A.3d 362. On appeal, the petitioner claimed that the habeas court could not have determined whether he was prejudiced by his criminal defense counsel's alleged deficient performance without reviewing all of the criminal trial transcripts. Id., at 225, 145 A.3d 362. In rejecting that claim, this court determined that, unlike Evans , the petitioner's claim was narrowly focused, and, like Hull , the habeas court found that the petitioner had failed to prove that counsel's performance was deficient such that it did not have to address the prejudice prong of Strickland , and therefore the habeas court did not have to review all of the criminal trial transcripts. Id., at 233, 145 A.3d 362. In addition, this court emphasized that the habeas court read some, but not all, of the transcripts. Id. This court presumed that the habeas court acted properly and reviewed all of the relevant transcripts, as the habeas court did not identify which portions of the transcripts it had read. Id., at 233-34, 145 A.3d 362. Moreover, the habeas court read the petitioner's pretrial brief, to which the petitioner had attached specific portions of the criminal trial transcripts. Id., at 234, 145 A.3d 362. Although additional portions of the transcript were admitted into evidence at the habeas trial, the petitioner failed to articulate the significance of those additional portions to his ineffective assistance of counsel claim. Id. In the present case, the petitioner raised a discrete, particularized claim at the habeas trial that Demirjian rendered ineffective assistance by failing to call an expert witness at the criminal trial to lay foundational testimony to admit the victim's toxicology report into evidence. In rejecting that claim, the habeas court determined, inter alia, that Demirjian's performance was not deficient where, following his consultation with several experts, Demirjian had concluded that the victim's toxicology report was of no value to the petitioner's justification defense. The excerpts from the criminal trial transcripts reflecting Demirjian's attempts to elicit testimony from the state's witnesses regarding the drugs found in the victim's system and containing the petitioner's testimony explaining his justification for his actions against the victim had no bearing on the court's analysis of whether Demirjian's performance was deficient. The remaining excerpt reflecting the state's comment during the criminal trial that there had been "mention" of Dr. Milzoff at some point was cumulative of Demirjian's testimony that Dr. Milzoff may have been mentioned during the criminal trial. Thus, the court's review of that excerpt would not have altered its determination that Demirjian's performance was not deficient. Therefore, the petitioner has failed to identify any excerpts from the criminal trial transcripts that would have altered the court's determination that Demirjian's performance was not deficient. Accordingly, "this court is guided by the presumption that the habeas court acted properly and considered all the relevant evidence." Moye v. Commissioner of Correction , supra, 168 Conn. App. at 234, 145 A.3d 362. In sum, we conclude that the petitioner has failed to demonstrate that the habeas court abused its discretion in failing to review the excerpts from the criminal trial transcripts identified by the petitioner and, therefore, the court did not abuse its discretion in denying the petition for certification to appeal as to this claim. The appeal is dismissed. In this opinion the other judges concurred. We deem the petitioner's state constitutional claims abandoned because he has failed to provide an independent analysis under our state constitution. See Gomez v. Commissioner of Correction , 178 Conn. App. 519, 522 n.1, 176 A.3d 559 (2017), cert. granted on other grounds, 328 Conn. 916, 180 A.3d 962 (2018). With one limited exception, the habeas court did not make any factual findings in its oral decision denying the petitioner's amended petition for a writ of habeas corpus with respect to the events that gave rise to the petitioner's arrest and conviction. Accordingly, we include the factual recitation set forth in the decision resolving the petitioner's direct appeal from his conviction. "The victim and his wife previously had complained to the [petitioner] and his girlfriend about their loud music. The [petitioner], at one point, called the victim's wife 'a devil.' The victim and his wife also telephoned the police on several occasions to complain about the noise, and the police went to the [petitioner's] apartment on several occasions." The petitioner, representing himself, filed a second petition for a writ of habeas corpus on September 18, 2014, claiming that he had been "denied a lawyer at interrogation after [he] requested counsel be present" in violation of his state and federal constitutional rights to due process. On March 25, 2015, the petitioner, through appointed counsel, filed a motion to consolidate the two pending habeas actions, which the habeas court granted on April 10, 2015. The habeas court subsequently filed a signed transcript of its oral decision with the clerk of the court. See Practice Book § 64-1(a). The petitioner also asserts that he was prejudiced by Demirjian's alleged deficient performance. Because we conclude that the habeas court did not err in determining that Demirjian's performance was not deficient, we need not reach the petitioner's claim regarding prejudice. See, e.g., Rosa v. Commissioner of Correction , 171 Conn. App. 428, 435 n.6, 157 A.3d 654 ("the failure to prove either prong of the Strickland standard is determinative of the petitioner's ineffective assistance of counsel claim"), cert. denied, 326 Conn. 905, 164 A.3d 680 (2017). The petitioner also relies on the excerpt from the criminal trial transcripts reflecting that the state had noted during the criminal trial that there had been "mention" of "Dr. [Milzoff] some time ago ." The petitioner contends that the excerpt supports his proposition that Demirjian was aware of and had consulted with Dr. Milzoff around the time of the criminal trial. We are not persuaded. In the excerpt, the state did not represent that Demirjian had disclosed Dr. Milzoff as a potential witness or otherwise indicate how it had become aware of Dr. Milzoff. The excerpt does not demonstrate that Demirjian was familiar with and had contacted Dr. Milzoff; rather, the excerpt is merely cumulative of Demirjian's testimony that Dr. Milzoff may have been mentioned during the criminal trial. Specifically, Dr. Milzoff testified that he had been a forensic toxicologist since 1972, that he had a bachelor's degree in pharmacy, a master's degree in toxicology and a doctorate in toxicology, that he was board certified, a diplomat of the American Board of Forensic Toxicologists, a charter member of the Society of Forensic Toxicologists and a member of the American Academy of Forensic Sciences, and that he had testified as an expert toxicologist "hundreds of times." The respondent concedes that the petitioner was not required to offer Dr. Milzoff expressly to be accepted by the habeas court as an expert witness; however, the respondent argues that the petitioner suffered no harm by the court's error because the court considered, and ultimately rejected, the substance of Dr. Milzoff's testimony. We disagree with the respondent's argument. Although the court addressed the substance of Dr. Milzoff's testimony, the court found that the testimony was not persuasive because the court did not consider it to be expert testimony. The commentary to § 7-2 of the Connecticut Code of Evidence was amended effective February 1, 2018. The commentary to § 7-2 currently provides in relevant part: "Section 7-2 requires a party offering expert testimony, in any form, to show that the witness is qualified and that the testimony will be of assistance to the trier of fact. A three part test is used to determine whether these requirements are met.... First, the expert must possess knowledge, skill, experience, training, education or some other source of learning directly applicable to a matter in issue.... Second, the witness' skill or knowledge must not be common to the average person.... Third, the testimony must be helpful to the fact finder in considering the issues.... The inquiry is often summarized in the following terms: 'The true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue.' " (Citations omitted.) The amendment does not affect our analysis. In his principal appellate brief, the petitioner appeared to claim that the habeas court abused its discretion in failing to review all of the criminal trial transcripts. In his reply brief and during oral argument before this court, however, the petitioner limited his claim by arguing that the habeas court's failure to review specific excerpts from the transcripts constituted an abuse of discretion. During its cross-examination of Demirjian, the respondent directed Demirjian to a different excerpt to refresh Demirjian's recollection regarding a ruling issued during the criminal trial. In addition, during his closing argument, the petitioner argued that it was his "understanding from reading the [criminal trial] transcripts" that the trial court had precluded the admission of the victim's toxicology report into evidence prior to Demirjian's cross-examination of Dr. Carver because it was not relevant to Dr. Carver's testimony. The petitioner was not required to object to the statements at issue in order to preserve his claim on appeal that the court abused its discretion in failing to review specific excerpts from the criminal trial transcripts. See Moye v. Commissioner of Correction , supra, 168 Conn. App. at 225-27, 145 A.3d 362. Although the habeas court also determined that the petitioner failed to establish that he was prejudiced by Demirjian's alleged deficient performance, the court was not required to reach that inquiry following its determination that the petitioner failed to demonstrate that Demirjian's performance was deficient and, thus, the court was not required to consider the entirety of the criminal trial transcripts. Moye v. Commissioner of Correction , supra, 168 Conn. App. at 233, 145 A.3d 362. Although we reject the petitioner's claim, we reiterate the cautionary note that this court in Moye directed to habeas courts: "A [trier of fact] is bound to consider all the evidence which has been admitted, as far as admissible, for all the purposes for which it was offered and claimed.... [This principle is] fully applicable in habeas corpus trials.... Just as a jury should give careful consideration to all the evidence in a case, so too should a habeas court give careful consideration to all the evidence.... If a habeas court concludes that it is not necessary to review certain exhibits in light of the manner in which it has disposed of the claims, it should endeavor to explain what it has not reviewed and why it is not necessary to do so. A court should strive to avoid leaving litigants with the impression that it has failed to discharge its duty or somehow acted unlawfully. Public confidence in our justice system is undermined if parties perceive that a court has not met its obligation to provide them with a full and fair review of their claims. We caution courts not to abrogate their duty to review the evidence admitted at trial or to give litigants the erroneous impression that they have done so." (Citations omitted; emphasis in original; internal quotation marks omitted.) Moye v. Commissioner of Correction , supra, 168 Conn. App. at 234-35, 145 A.3d 362.

12504941

CITIBANK, N.A., Trustee v. Laura A. STEIN, et al.

Citibank, N.A. v. Stein

2018-11-27

AC 40199

57

79

199 A.3d 57

199

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:42.438369+00:00

Fastcase

CITIBANK, N.A., Trustee v. Laura A. STEIN, et al.

CITIBANK, N.A., Trustee v. Laura A. STEIN, et al. AC 40199 Appellate Court of Connecticut. Argued September 7, 2018 Officially released November 27, 2018 Brian Stein, self-represented appellant (defendant Brian Stein). Crystal L. Cooke, for the appellee (substitute plaintiff). Lavine, Sheldon and Bright, Js.

10039

60388

LAVINE, J. The present appeal concerns the foreclosure of real property located at 983 New Norwalk Road in New Canaan (property). The self-represented defendant, Brian Stein, appeals from the judgment of strict foreclosure rendered in favor of the substitute plaintiff, Wilmington Trust, N.A. (Wilmington Trust), as successor trustee to the plaintiff, Citibank, N.A. (Citibank), as trustee of the holders of Bear Stearns Alt-A Trust 2006-6, Mortgage Pass-Through Certificates, Series 2006-6. On appeal, the defendant claims that the trial court, Heller, J. , (1) erred by denying his motion to dismiss, (2) abused its discretion by denying his motion to reargue and for reconsideration, (3) abused its discretion by refusing to consider, after the June 2015 trial, documents the defendant considered newly discovered evidence, (4) erred in finding that the mortgagor had defaulted on the note and default notice, and (5) erred under J.E. Robert Co. v. Signature Properties, LLC , 309 Conn. 307, 71 A.3d 492 (2013), in concluding that Citibank had proven its right as a nonholder in possession to bring the foreclosure action. We affirm the judgment of the trial court. In its memoranda of decision issued on January 7, 2016, and on February 21, 2017, the trial court set forth the following relevant facts and procedural history. On July 7, 2006, Laura A. Stein, the defendant's then wife, executed and delivered an interest only adjustable rate note to Countrywide Bank, N.A. (Countrywide Bank), in the principal amount of $1,650,000. Countrywide Bank endorsed the note to Countrywide Home Loans, Inc. (Home Loans). Home Loans, thereafter, endorsed the note in blank and provided it to Citibank. To secure the note, the defendant and Laura Stein executed in duplicate a mortgage on the property and delivered it to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Countrywide Bank. MERS assigned the mortgage to Citibank on November 25, 2009. The court also found, pursuant to paragraph 3 (A) of the note, that Laura Stein was to make monthly payments of interest only on the first day of each month, commencing on September 1, 2006. She and the defendant last made a monthly payment on the note on July 16, 2008. On September 16, 2008, Home Loans, which was the servicer of the loan on behalf of the holder of the note at that time, sent a letter to Laura Stein advising her that the loan was in default and of the amount required to cure the default and reinstate the loan. Laura Stein and the defendant failed to cure the default. Citibank elected to accelerate the balance due on the note, declare the note due in full, and foreclose the mortgage securing the note. Citibank commenced the present foreclosure action by service of process on July 13, 2009. The complaint alleges, in relevant part, that Citibank, as trustee, is the holder of the note and mortgage. The defendant and Laura Stein filed an answer and special defenses on March 19, 2010. Their special defenses alleged that Citibank lacked standing as a trustee under General Statutes § 52-106, but that if Citibank had standing, it was required to modify the mortgage pursuant to an agreement between the Connecticut Attorney General and Countrywide Bank. They also alleged that Citibank did not provide the original note, and, therefore, could not commence the action, and that the complaint failed to establish that Citibank was the current holder and owner of the note and mortgage. Citibank pleaded a general denial in response to the special defenses. On September 27, 2010, Citibank filed a motion for summary judgment as to liability only. The defendant and Laura Stein objected to the motion for summary judgment on the ground that there were genuine issues of material fact as to whether Citibank was the holder of the note and mortgage. The court, Mintz, J. , sustained the defendant's objection to the motion by granting additional time for discovery on the issue of Citibank's standing and ordering that the motion for summary judgment be set down for argument on November 17, 2014. Judge Heller found that Citibank's motion for summary judgment was never argued. On September 10, 2014, Laura Stein filed a motion to dismiss in which she contended, among other things, that Citibank lacked standing to pursue the present action under General Statutes § 42a-3-301 and 52-106. She withdrew her motion to dismiss, however, on the first day of trial, stipulated to certain facts, and consented to the entry of summary judgment against her as to liability only. On June 19, 2015, five days before trial, the defendant filed a motion to dismiss on the ground that Citibank lacked standing to pursue the action against him. After hearing from counsel for the parties, Judge Heller determined that she would hear and decide the defendant's motion to dismiss at the same time and, in connection with, the merits of Citibank's foreclosure case. The parties, all represented by counsel, appeared before the court for trial on June 24, 25 and 26, 2015. On January 7, 2016, after the parties had submitted posttrial briefs, the court issued a memorandum of decision in which it denied the defendant's motion to dismiss and rendered a judgment of strict foreclosure in favor of Citibank. On January 19, 2016, the defendant filed a motion for a new trial and on January 27, 2016, filed a motion for reargument and reconsideration of the court's ruling on his motion to dismiss. Citibank objected to both motions. The court granted the motion for reargument, and counsel for Citibank and the defendant appeared for argument before the court on February 16, 2016. The court reserved reconsideration of its ruling on the motion to dismiss and determined to open the record and take additional testimony from Citibank's witness, Johnny Nguyen of Nationstar Mortgage LLC (Nationstar), the servicer of the subject mortgage. On August 29, 2016, Citibank filed a motion to substitute Wilmington Trust as the plaintiff because the mortgage had been assigned to Wilmington Trust after the present action was commenced. On August 30, 2016, the court heard additional testimony from Nguyen. Before commencing the hearing, the court granted Citibank's motion to substitute Wilmington Trust as the plaintiff. On September 19, 2016, the defendant filed a motion for reargument and reconsideration of Citibank's motion to substitute Wilmington Trust as the plaintiff. The court heard argument from counsel on the defendant's motion for reargument and reconsideration on November 28, 2016. On February 1, 2017, counsel for the defendant filed a memorandum in further support of his motion to reargue the motion to substitute, and the defendant submitted a statement and memorandum of his own. Wilmington Trust filed an objection to the motion to reargue on February 15, 2017. On February 21, 2017, the court issued a memorandum of decision on the defendant's three pending motions before it, to wit, his motion for a new trial, filed on January 19, 2016; his motion for reargument on his motion to dismiss, filed on January 27, 2016; and his motion for reargument on Citibank's motion to substitute Wilmington Trust as the plaintiff, filed on September 19, 2016. The court denied all three of the defendant's reargument motions and opened the judgment of strict foreclosure previously entered for the purpose of setting the law days. The defendant timely appealed to this court. I The defendant first claims that the court erred in finding that Citibank had standing to bring this foreclosure action against him and, thus, that it had subject matter jurisdiction over the action. Specifically, he claims that the court (1) erred by denying his motion to dismiss because Citibank lacked standing to commence the action and (2) abused its discretion by failing to grant his motion to reargue and for reconsideration of his motion to dismiss. We reject the defendant's claims. The defendant's claims require us to examine the court's memoranda of decision in detail. The court's decisions set forth the following facts and legal analyses. Prior to the start of trial in June, 2015, the defendant filed a motion to dismiss claiming that he had a good faith belief that Citibank lacked standing to pursue the action. In its January 7, 2016 memorandum of decision, the trial court found that the defendant had argued that Citibank lacked standing because (i) it was not the owner of the note and the debt at issue and/or it was not the holder of the note and (ii) it was not authorized by the owner of the note and the debt to prosecute the action on behalf of the owner. The defendant also argued that Citibank lacked standing under General Statutes § 52-106. Citibank contended that it had standing as both the holder of the note and as trustee. The court credited the uncontroverted testimony of Nguyen that Citibank was the holder of the note that had been endorsed in blank. The court cited the statutory and common-law definitions of "holder." General Statutes § 42a-3-104 (a) provides, in relevant part, that a holder is "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." "The holder is the person or entity in possession of the instrument if the instrument is payable to bearer.... When an instrument is endorsed in blank, it becomes payable to bearer and may be negotiated by transfer of possession alone ." (Citations omitted; footnote omitted; internal quotation marks omitted.) Equity One, Inc. v. Shivers , 310 Conn. 119, 126, 74 A.3d 1225 (2013). The court concluded, therefore, that because Citibank was the holder of the note, it had proved that it was the owner because "the note holder is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under [General Statutes] § 49-17." (Internal quotation marks omitted.) American Home Mortgage Servicing, Inc. v. Reilly , 157 Conn. App. 127, 133-34, 117 A.3d 500, cert. denied, 317 Conn. 915, 117 A.3d 854 (2015). Citing Anderson v. Litchfield , 4 Conn. App. 24, 28, 492 A.2d 210 (1985), for the law regarding the burden necessary to rebut the presumption of ownership, the court found that the defendant had failed to offer sufficient and persuasive contradictory evidence to disprove the presumption that Citibank was the holder of the note. The defendant further argued that Nguyen's testimony alone was insufficient to prove that Citibank was authorized to commence and pursue the action without the relevant business records, particularly the pooling and service agreement, being offered into evidence. The court found that the defendant offered no evidence to contradict Nguyen's testimony, which was predicated on his personal knowledge of Nationstar's business records. It disagreed that Citibank was required to produce its business records to support its claim. "Appellate courts in this state have held that [the evidentiary] burden is satisfied when the mortgagee includes in its submission to the court a sworn affidavit averring that the mortgagee is the holder of the promissory note in question at the time it commenced the action." GMAC Mortgage, LLC v. Ford , 144 Conn. App. 165, 176, 73 A.3d 742 (2013). The court also concluded that Citibank had standing to prosecute the foreclosure action as holder of the note and as a trustee. Section 52-106 provides, "[a]n executor, administrator, or trustee of an express trust may sue or be sued without joining the persons represented by him and beneficially interested in the action." "[T]he trustee's standing to sue arises out of its legal title to the trust res." (Internal quotation marks omitted.) Chase Home Finance, LLC v. Fequiere , 119 Conn. App. 570, 580, 989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d 564 (2010). Moreover, "[o]ur appellate courts have not required a foreclosure plaintiff to produce evidence of ownership deriving from a pooling and servicing agreement in making its prima facie case ." Wells Fargo Bank, N.A. v. Strong , 149 Conn. App. 384, 399, 89 A.3d 392, cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014). "The relevance of securitization documents on a lender's standing to foreclose a mortgage is questionable. Simply put, a borrower has a contract-the note and mortgage-with the owner or holder of the loan documents. The borrower, however, is not a party to the pooling and servicing agreement, commonly referred to as a 'trust' document.... It is a basic tenet of contract law that only parties to an agreement may challenge its enforcement.... [C]lose scrutiny of trust documents and challenges to their veracity appear to offer little benefit to the court in determining the owner or holder of a note in a particular case. If admissible evidence of holder status has been presented, a borrower must then challenge those facts by competent evidence addressed to the delivery of the loan documents. In most instances, a borrower's challenge to the content of trust documents or other borrower claims appear to have little relevance to the issue of standing." (Internal quotation marks omitted.) Id., at 393-94, 89 A.3d 392. The court continued quoting that "[t]he law of trusts limits the ability of a borrower to challenge whether conditions in the pooling and servicing agreement were satisfied.... [A] stranger to a trust, when sued by the Trustee, cannot set up as a defense a violation of the rights of the Trust by the Trustee.... Generally, the parties to a pooling and servicing agreement are the certificate holders, who own interests in the mortgages, a trustee, a depositor of the assets, and a servicer. Borrowers, however, have no contractual privity with the parties to a pooling and servicing agreement." (Citations omitted; internal quotation marks omitted.) Id., at 394, 89 A.3d 392. The court found that Citibank had standing to prosecute the present action and that the action was not barred by any of the defendant's remaining special defenses. The court, therefore, denied the defendant's motion to dismiss. After hearing appraisal evidence and the amount of debt, the court found that the debt far exceeded the fair market value of the property. It issued a judgment of strict foreclosure in favor of Citibank and set law days. As previously stated, the defendant filed a motion for reargument and reconsideration of his motion to dismiss. The defendant contended that following the hearing on the motion to dismiss and the foreclosure trial, he discovered new evidence to the effect that Citibank was not the owner of the note and debt at issue and had not been for some time. According to the defendant, Wilmington Trust was the owner. The defendant first raised the argument in his posttrial memorandum filed on August 24, 2015, in which he asked the court to take judicial notice of certain public documents that purportedly demonstrated that Wilmington Trust had succeeded Citibank as trustee for the Holders of Bear Stearns Alt-A Trust 2006-6. The court declined to do so, noting that even if it took judicial notice, as requested, the information would not have afforded a basis for dismissing the action. See footnote 15 of this opinion. The defendant also claimed that Wells Fargo Bank was the servicer of the mortgage, not Nationstar, thus calling into question the veracity of Nguyen's testimony. The court granted reargument on February 16, 2016, but reserved decision on reconsideration of the motion to dismiss. On May 26, 2016, the court decided to open the record to take further testimony from Nguyen to determine whether Citibank, Wilmington Trust, or some other entity was the trustee of the trust on June 25, 2015, when Nguyen testified at the foreclosure trial; whether Nationstar, Wells Fargo, or some other entity was the mortgage servicer for the defendant's mortgage when Nguyen testified; and if an entity other than Nationstar was the mortgage servicer, whether Nguyen was familiar with the books and records of such mortgage servicer at the time of trial and was authorized to testify on its behalf. The court heard further testimony from Nguyen on August 30, 2016. The court issued its decision in a memorandum of decision on February 21, 2017. The court credited Nguyen's testimony and made the following additional findings of fact. Nationstar has been the primary servicer of the mortgage since the beginning of 2014 and was the servicer on June 25, 2015, when Nguyen testified at the foreclosure trial and it continued to be the mortgage servicer. Citibank was the trustee and the holder of the note at the time the foreclosure complaint was served in 2009 and had authority to commence the action. Wilmington Trust became the trustee in 2012, was the trustee on June 25, 2015, and remained the trustee. It also was the holder of the note in June, 2015. Two assignments of the mortgage were admitted into evidence. Citibank assigned it to Nationstar on May 4, 2016, and Nationstar assigned it to Wilmington Trust on March 30, 2016. With respect to the defendant's motion for reconsideration of his motion to dismiss, the court stated that the ground of the defendant's motion for reconsideration was newly discovered evidence. The court cited the controlling law. "A party who wishes to reargue a decision or order rendered by the court shall, within twenty days from the issuance of notice of the rendition of the decision or order, file a motion to reargue setting forth the decision or order which is the subject of the motion, the name of the judge who rendered it, and the specific grounds for reargument upon which the party relies." Practice Book § 11-12 (a). "[T]he purpose of reargument is . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts.... [Reargument] also may be used to address alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court." (Citation omitted; internal quotation marks omitted.) Opoku v. Grant , 63 Conn. App. 686, 692-93, 778 A.2d 981 (2001). "Newly discovered evidence may warrant reconsideration of a court's decision. However, [f]or evidence to be newly discovered, it must be of such a nature that [it] could not have been earlier discovered by the exercise of due diligence." (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Cunningham , 97 Conn. App. 640, 656, 905 A.2d 1256 (2006). The court found that the evidence the defendant offered fell short of this standard. In fact, the court stated, the defendant never sought to open the record to introduce evidence that Wilmington Trust was the successor trustee to Citibank. It was the court that ordered further testimony from Nguyen to respond to the issues raised by the defendant. The court found that the defendant, in his posttrial brief, had represented that he had learned through a Lexis case search and a search of public records that Wilmington Trust had replaced Citibank as the trustee in late 2012. The defendant reported that he had learned of the transfer of the trust from a Moody's rating service, pleadings in other lawsuits alleging that Wilmington Trust had succeeded Citibank, and a Schedule A to a document described as a limited power of attorney dated November 18, 2013, and recorded in county records in Salt Lake City, Utah. The court found, however, that although the evidence may have been newly discovered by the defendant, it had been available publicly on the Moodys.com website, in the New York federal bankruptcy court files, and the Utah land records for years. A Lexis case search and a search of the public records months before the foreclosure trial would have revealed the information regarding the change of trustee. The court, therefore, declined to reconsider its ruling denying the defendant's motion to dismiss. The court set new law days and the defendant appealed. A We now turn to the defendant's central claim that the court erred when it denied his motion to dismiss because the court lacked subject matter jurisdiction due to Citibank's lack of standing. We disagree. "A motion to dismiss . properly attacks the jurisdiction of the court, essentially asserting that the [plaintiff] cannot as a matter of law and fact state a cause of action that should be heard by the court.... [It] tests, inter alia, whether on the face of the record, the court is without jurisdiction.... The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Citation omitted; internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Torres , 149 Conn. App. 25, 29, 88 A.3d 570 (2014). "The issue of standing implicates the trial court's subject matter jurisdiction and therefore presents a threshold issue for our determination.... Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.... [When] a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.... We have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary.... In addition, because standing implicates the court's subject matter jurisdiction, the issue of standing is not subject to waiver and may be raised at any time.... [T]he plaintiff ultimately bears the burden of establishing standing." (Citations omitted; internal quotation marks omitted.) Wells Fargo Bank, N.A. v. Strong , supra, 149 Conn. App. at 397-98, 89 A.3d 392. "[W]here legal conclusions of the [trial] court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision.... Thus, our review of the trial court's ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo." (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Torres , supra, 149 Conn. App. at 29, 88 A.3d 570. The basis of the defendant's multiple claims appears to stem from the securitization of the note and its transfer from one trustee or holder to another. The defendant's claims are fact based, as he does not take exception to the law cited by the court in its memoranda of decision. The resolution of the present appeal turns on the entity legally entitled to commence the present action and the authority to prosecute the action at trial in June, 2015. The trial court found that Citibank was the holder of the debt and the trustee with authority to commence the action. The court also found that at the time of trial, Nationstar was the primary servicer of the mortgage and was authorized to prosecute the foreclosure action. Wilmington Trust became the trustee in 2012 and was the trustee and holder of the note in June, 2015. Citibank assigned the mortgage to Nationstar, which assigned it to Wilmington Trust in 2016. Our review of the record, including the exhibits and trial testimony, supports the court's factual findings and is consistent with our law of negotiable instruments and foreclosure. "[ Section] 49-17 permits the holder of a negotiable instrument that is secured by a mortgage to foreclose on the mortgage even when the mortgage has not yet been assigned to him.... The statute codifies the common-law principle of long standing that the mortgage follows the note, pursuant to which only the rightful owner of the note has the right to enforce the mortgage.... Our legislature, by adopting § 49-17, has provide[d] an avenue for the holder of the note to foreclose on the property when the mortgage has not been assigned to him." (Citations omitted; footnote omitted; internal quotation marks omitted.) Chase Home Finance, LLC v. Fequiere , 119 Conn. App. 570, 576-77, 989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d 564 (2010). "Generally, in order to have standing to bring a foreclosure action the plaintiff must, at the time the action is commenced, be entitled to enforce the promissory note that is secured by the property.... The plaintiff's possession of a note endorsed in blank is prima facie evidence that it is a holder and is entitled to enforce the note, thereby conferring standing to commence a foreclosure action.... After the plaintiff has presented this prima facie evidence, the burden is on the defendant to impeach the validity of [the] evidence that [the plaintiff] possessed the note at the time that it commenced the . action or to rebut the presumption that [the plaintiff] owns the underlying debt." (Internal quotation marks omitted.) Bank of America, N.A. v. Kydes , 183 Conn. App. 479, 487, 193 A.3d 110, cert. denied, 330 Conn. 925, 194 A.3d 291 (2018). "The rules for standing in foreclosure actions when the issue of standing is raised may be succinctly summarized as follows. When a holder seeks to enforce a note through foreclosure, the holder must produce the note. The note must be sufficiently endorsed so as to demonstrate that the foreclosing party is a holder, either by a specific endorsement to that party or by means of a blank endorsement to bearer. If the foreclosing party shows that it is a valid holder of the note and can produce the note, it is presumed that the foreclosing party is the rightful owner of the debt. That presumption may be rebutted by the defending party, but the burden is on the defending party to provide sufficient proof that the holder of the note is not the owner of the debt, for example, by showing that ownership of the debt had passed to another party. It is not sufficient to provide that proof, however, merely by pointing to some documentary lacuna in the chain of title that might give rise to the possibility that some other party owns the debt. In order to rebut the presumption, the defendant must prove that someone else is the owner of the note and debt. Absent that proof, the plaintiff may rest its standing to foreclose on its status as the holder of the note." (Emphasis in original.) U.S. Bank, National Assn. v. Schaeffer , 160 Conn. App. 138, 150, 125 A.3d 262 (2015). "Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.... The statute authorizing standing in this [foreclosure] case is General Statutes § 52-118, which provides in relevant part that an assignee . may sue . in his own name . The legislature's use of the word may in the statute indicates that an assignee merely has the option to sue in his name. Conversely, as the Supreme Court has stated, an assignee also has the option to maintain [an] action in the name of his assignor. Jacobson v. Robington , 139 Conn. 532, 539, 95 A.2d 66 (1953)." (Internal quotation marks omitted.) Dime Savings Bank of Wallingford v. Arpaia , 55 Conn. App. 180, 184, 738 A.2d 715 (1999) ; see also Washington Mutual Bank, F.A. v. Walpuck , 134 Conn. App. 446, 447, 43 A.3d 174, cert. denied, 305 Conn. 902, 43 A.3d 663 (2012) ( Dime Savings Bank of Wallingford is dispositive). Citibank alleged in the complaint that it was the holder of the note and in possession of the mortgage. A bank that "alleged that it possessed the note at the time it commenced [the] action, [is] entitled to reply upon that allegation unless the defendant present[s] facts to the contrary ." Bank of America, N.A. v. Kydes , supra, 183 Conn. App. at 489, 193 A.3d 110. The court did not find evidence that Citibank was not in possession of the note when the present action was commenced. The defendant has not pointed us to any evidence that disputes, let alone contradicts, the court's conclusion that Citibank was the holder of the note at the time the foreclosure action was commenced. At trial, Citibank presented a photocopy of the note secured by the mortgage. The defendant failed to provide any evidence to counter Citibank's claim. The defendant's principal argument seems to be that Citibank was not the trustee at the time of trial in June, 2015, and that Wilmington Trust was not substituted as the plaintiff until August, 2016. An assignee may continue litigation in the name of the original plaintiff. Jacobson v. Robington , supra, 139 Conn. at 539, 95 A.2d 66. In the present case, Laura Stein signed the note in favor of Countywide Bank, which endorsed the note in favor of Home Loans, which endorsed the note in blank and provided it to Citibank. The court concluded that Citibank was the trustee and holder of the note when the action was commenced, and therefore, it had standing to do so. The court thus had subject matter jurisdiction. During trial, Citibank transferred the note to Wilmington Trust, which authorized Nationstar, its server, to prosecute the action in the name of Citibank. Wilmington Trust was substituted as the plaintiff prior to the court's opening the judgment of strict foreclosure for the purpose of setting the law days. See Jacobson v. Robington , supra, 139 Conn. at 539, 95 A.2d 66 (assignee may prosecute in name of assignor). The court, therefore, had subject matter jurisdiction to adjudicate the action, and the defendant's claim fails. B The defendant further claims that the court abused its discretion by opening the record to hear additional testimony from Citibank's witness. By opening the record and receiving more testimony from Nguyen, the defendant claims that the court gave Citibank a second bite at the apple. The defendant further claims that the court compounded the error by denying him the right to conduct further discovery. We disagree. "Whether the trial court has jurisdiction to open a judgment of strict foreclosure is generally dependent on whether title has vested in the encumbrancer. See General Statutes § 49-15 (a) (1) (upon written motion by interested person, court may open and modify any judgment of strict foreclosure as it deems reasonable, provided no such judgment shall be opened after the title has become absolute in any encumbrancer)." (Emphasis omitted; internal quotation marks omitted.) Real Estate Mortgage Network, Inc. v. Squillante , 184 Conn. App. 356, 360-61, 194 A.3d 1262 (2018). In the present case, after the court rendered judgment in favor of Citibank in its January 7, 2016 memorandum of decision, the defendant filed a motion for reargument and reconsideration of the motion to substitute Wilmington Trust as the plaintiff. In the motion, the defendant alleged that Citibank and Wilmington Trust are not the investors or servicing authority for the loan, that the note is not in the BALTA 2006-6 Trust and that Nationstar has no current servicing authority. The court stated that it opened the record to take further testimony from Nguyen to determine the identity of the trustee on June 25, 2015, the identity of the servicer on that date, and whether Nguyen was familiar with the books of the mortgage servicer, and whether he was authorized to testify on its behalf. It is obvious that the court opened the record to address the defendant's jurisdictional claims, and not to give Citibank a second bite at the apple. We conclude that the court did not abuse its discretion by opening the record to take more evidence. Even if the trial court had abused its discretion by opening the record in response to the defendant's motion for reargument and reconsideration, this court has held that it will not review claims of error, if any, when they have been induced by the party claiming error on appeal. LPP Mortgage, Ltd. v. Lynch , 122 Conn. App. 686, 698, 1 A.3d 157 (2010). "[T]he appellate courts of this state have made it clear that a party cannot take a path at trial and change tactics on appeal. Furthermore, no party has the right to induce or invite error, if any, on the part of the trier of fact and seek reversal on appeal." Moran v. Media News Group, Inc. , 100 Conn. App. 485, 501, 918 A.2d 921 (2007). For the foregoing reasons, the defendant's claim that the court erred by denying his motions to dismiss and for reconsideration fails. II The defendant claims that the court abused its discretion by failing to consider documents that he claims dispute the witness' servicing authority, as well as Citibank's purported ownership of the note and authority to prosecute the foreclosure. We agree with Wilmington Trust that this claim is inadequately briefed. Wilmington Trust points out that the defendant's brief on this issue is rambling and that it is not possible to determine the documents to which the defendant is referring. We have noted that the brief contains no references to a transcript from which Wilmington Trust, or this court, can infer how or when the defendant sought to introduce the documents he claims the court failed to consider. See footnote 2 of this opinion. We acknowledge that the defendant is representing himself and that we generally grant self-represented litigants some latitude so long as it does not interfere with the rights of other parties. See Darin v. Cais , 161 Conn. App. 475, 481, 129 A.3d 716 (2015). The defendant's briefing of the present claim is an instance, however, in which the plaintiff is at a disadvantage in replying to the defendant's arguments. Appellate courts "are not required to review issues that have been improperly presented to this court through an inadequate brief.... Analysis, rather than [mere] abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.... We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed." (Internal quotation marks omitted.) McClancy v. Bank of America, N.A. , 176 Conn. App. 408, 414, 168 A.3d 658, cert. denied, 327 Conn. 975, 174 A.3d 195 (2017). The defendant has not brought to our attention where in the record the court issued the ruling with which he takes issue. His brief cites no law and does not analyze the facts pursuant to the law on which he purportedly relies. We, therefore, are unable to review the claim. III The defendant claims that Citibank's foreclosure action is deficient and false because the mortgagor did not default on the note. The defendant's argument is that Laura Stein is a non-title owner of the property and, therefore, she could not mortgage the property. The fallacy in the defendant's argument is that he is the owner of the property and that he pledged the property as security for the note signed by Laura Stein, who admitted that the note is in default. The mortgage, which is in evidence, states, among other things: "Borrower is Laura A. Stein and Brian M. Stein . Borrower is the mortgagor under this Security Instrument." "A mortgage is a contract of sale executed, with power to redeem.... The condition of a mortgage may be the payment of a debt, the indemnity of a surety, or the doing or not doing [of] any other act." Cook v. Bartholomew , 60 Conn. 24, 25, 22 A. 444 (1891). Black's Law Dictionary defines mortgagor as "[o]ne who, having all or some part of the title to property, by written instrument pledges that property for some particular purpose such as security for a debt. That party to a mortgage who gives legal title or a lien to the mortgagee to secure the mortgage loan." Black's Law Dictionary (5th Ed. 1979). Also "[o]ne who mortgages property; the mortgage-debtor, or borrower." Black's Law Dictionary (9th Ed. 2004). "It has long been established at common law that [t]he mortgage is an incident only to the debt, which is the principal; it cannot be detached from [the debt]; distinct from the debt, it has no determinate value; and the assignee must hold it, at the will and disposal of the creditor, who has the note or bond, for which it is a collateral security." (Internal quotation marks omitted.) J.E. Robert Co. v. Signature Properties, LLC , supra, 309 Conn. at 318, 71 A.3d 492. At trial, Laura Stein stipulated that the note she signed was in default. She also stipulated that the signatures on the mortgage appeared to be hers and the defendant's. The defendant has not challenged the stipulation or otherwise disputed that his signature is on the mortgages. The defendant, therefore, is a mortgagor in default and his claim fails. IV The defendant's final claim is that Citibank failed to meet its burden under J.E. Robert Co. v. Signature Properties, LLC , supra, 309 Conn. at 307, 71 A.3d 492, to prove its right to bring the present action as a nonholder in possession of the note. He argues that Citibank never appeared in court, and that its alleged servicer, who is not identified in the note, failed to prove the transfers by which it acquired the note. We do not agree. The issue in J.E. Robert Co. concerned the "standing of parties other than the lender to bring [foreclosure] actions . [s]pecifically . whether a loan servicer for the owner and holder of a note and mortgage can have standing in its own right to institute a foreclosure action against the mortgage as transferee of the holder's rights under the Uniform Commercial Code (UCC), General Statutes § 42a-3-203 and 42a-3-301." Id., at 310-11, 71 A.3d 492. Our Supreme Court determined that "through the pooling agreement, J.E. Robert had standing as a transferee . to enforce the note and mortgage in accordance with § 42a-3-203 and 42a-3-301"; id., at 318, 71 A.3d 492 ; and as servicer, it had authority to institute the foreclosure action in its own name. Id., at 311, 71 A.3d 492. Our Supreme Court explained that "[s]ecuritization starts when a mortgage originator sells a mortgage and its note to a buyer, who is typically a subsidiary of an investment bank.... The investment bank bundles together the multitude of mortgages it purchased into a special purpose vehicle, usually in the form of a trust, and sells the income rights to other investors.... A pooling and servicing agreement establishes two entities that maintain the trust: a trustee, who manages the loan assets, and a servicer, who communicates with and collects monthly payments from the mortgagors." (Citations omitted; internal quotation marks omitted.) Id., at 313 n.4, 71 A.3d 492. "The pooling agreement also designates another entity as [m]aster [s]ervicer, whose general responsibility is to administer mortgage loans other than those designated as specially serviced loans due to certain events such as imminent or actual default." (Internal quotation marks omitted.) Id., at 313 n.5, 71 A.3d 492. "A plaintiff's right to enforce a promissory note may be established under the UCC." Id., at 319, 71 A.3d 492. See General Statutes § 42a-3-203 (a) and (b). "Consistent with these provisions, our appellate case law has recognized that, to enforce a note, one need not be the owner of the note; see, e.g., Ninth RMA Partners, L.P. v. Krass , 57 Conn. App. 1, 7, 746 A.2d 826... cert. denied, 253 Conn. 918, 755 A.2d 215 (2000) ; or even the holder of the note. See, e.g., Ulster Savings Bank v. 28 Brynwood Lane, Ltd. , 134 Conn. App. 699, 709-10, 41 A.3d 1077 (2012)." J.E. Robert Co. v. Signature Properties, LLC , supra, 309 Conn. at 320 n.14, 71 A.3d 492. Under § 42a-3-203 (a), there are two requirements to transfer an instrument: "(1) the transferor must intend to vest in the transferee the right to enforce the instrument; and (2) the transferor must deliver the instrument to the transferee so that the transferee has either actual or constructive possession." Id., at 320, 71 A.3d 492. Section 49-17 permits "the person entitled to receive the money secured [by a mortgage] but to whom the legal title to the mortgaged premises has never been conveyed" to bring a foreclosure action. (Emphasis omitted; internal quotation marks omitted.) Id., at 324, 71 A.3d 492. The statute "simply requires a party to prove that [it is] the person entitled to receive the money secured [by the mortgage], and such a party may be someone other than the owner of the note." (Internal quotation marks omitted.) Id., at 325, 71 A.3d 492. "[A] loan servicer entitled to receive money and otherwise administer a loan under the terms of a pooling and service agreement would not necessarily need to be the owner or holder of the note in order to institute a foreclosure action against the debtor." Id., at 326, 71 A.3d 492. "[A] holder of a note is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under § 49-17." (Internal quotation marks omitted.) Id., at 325 n.18, 71 A.3d 492. If the presumption is rebutted, the burden shifts "back to the plaintiff to demonstrate that the owner has vested it with the right to receive the money secured by the note." Id. As to the plaintiff's burden of proof, "[i]t is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and have the proper supporting documentation in hand when filing suit, showing the history of the note, so the defendant is duly apprised of the rights of the plaintiff." Id., at 325-26 n.18, 71 A.3d 492. "The transferee does not enjoy the statutorily provided assumption of the right to enforce the instrument that accompanies a negotiated instrument, and so the transferee must account for possession of the [unendorsed] instrument by providing the transaction through which the transferee acquired it." (Internal quotation marks omitted.) Id., at 326 n.18, 71 A.3d 492. "If there are multiple prior transfers, the transferee must prove each prior transfer.... Once the transferee establishes a successful transfer from a holder, he or she acquires the enforcement rights of that holder. Therefore, in cases in which a nonholder transferee seeks to enforce a note in foreclosure proceedings, if the defendants dispute the plaintiff's right to enforce the note, the plaintiff must prove that right." (Citations omitted; internal quotation marks omitted.) Id. As set forth in part I of this opinion, the court found that Citibank was the holder of the note and, therefore, that it had standing to bring the action against the defendant. The court also found that Nationstar was the servicer of the loan at the time of trial in June, 2015. Contrary to the defendant's argument that Citibank was required to present documentary evidence that Citibank was the holder of the note and that Nationstar was the servicer, Wells Fargo Bank, N.A. v. Strong , supra, 149 Conn. App. at 392-93, 89 A.3d 392, holds otherwise. In the present matter, the court found that Citibank was the holder of the note entitled to bring the action against the defendant and that Nationstar was the servicer as of 2014 and through the time of trial. Our review of the record and the court's memoranda of decision supports the court's findings and, therefore, we conclude that the court properly determined that Citibank met the requirements of J.E. Robert Co. to prosecute the foreclosure action. Moreover, Wilmington Trust, which also acquired the mortgage, was substituted as the plaintiff prior to the court's opening the judgment of strict foreclosure for the purpose of setting the law days. The judgment is affirmed and the case is remanded for the purpose of setting new law days. In this opinion the other judges concurred. Laura A. Stein, JPMorgan Chase Bank, N.A., the state of Connecticut, and Standard Oil of Connecticut, Inc., also were served as defendants, but they are not parties to this appeal. The defendants, other than Laura Stein, were defaulted. In this opinion, we refer to Brian Stein, also known as Brian M. Stein, as the defendant. Wilmington Trust claims that the defendant has failed to provide an adequate record for review as required by Practice Book § 61-10 ("responsibility of the appellant to provide an adequate record for review"). Specifically it claims that the defendant failed to provide copies of certain memoranda of law and portions of the transcript. We agree that the defendant failed to provide an adequate record in his principal brief or appendix. In his reply brief, however, he has included some of the documents omitted from his opening brief as noted by Wilmington Trust. Although the defendant provided a complete transcript of the June, 2015 trial and the August 30, 2016 hearing, he failed to include in his brief citations to the transcript that support his representation of facts as required by Practice Book § 67-4 (c). The defendant did not provide transcripts of oral arguments at the hearings on the various motions at issue in this appeal. The defendant is a self-represented party. "[I]t is the established policy of the Connecticut Courts to be solicitous of [self-represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self-represented] party . we are also aware that [a]lthough we allow [self-represented] litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." (Internal quotation marks omitted.) Darin v. Cais , 161 Conn. App. 475, 481, 129 A.3d 716 (2015). We have held, however, that an appellant may not raise new arguments for the first time in a reply brief as doing so deprives the appellee of an opportunity to respond to them. See State v. Myers , 178 Conn. App. 102, 106, 174 A.3d 197 (2017). In the present case, the defendant's belated efforts to provide an adequate record do not appear to have interfered with the rights of Wilmington Trust, and Wilmington Trust makes no such claim. The failure of the defendant to cite to the record and portions of the transcript in his brief, as required by our rules, however, presents the court with a different problem. It requires the court, in its discretion, to search the record and transcript with respect to the defendant's representations of fact. Such review is time-consuming, and without citations, the court inadvertently may fail to find evidence that supports a party's representation or may be unable to review the claim. See part II of this opinion. The court found that the defendant and Laura Stein were divorced during the pendency of the present action. Their separation agreement (agreement) was incorporated in the March 12, 2013 judgment of dissolution. Pursuant to paragraph 2.1 of the agreement, the defendant retained ownership of the property free and clear of any claims by Laura Stein. Paragraph 9.5 of the agreement provides that both the defendant and Laura Stein are responsible for the first and second mortgages on the property. The property is located partially in New Canaan and partially in Norwalk. The mortgage was recorded in the land records of both New Canaan and Norwalk. Paragraph 15 of the mortgage provides that all notices were to be in writing and that any notice to the borrower "shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means. Notice to any one Borrower shall constitute notice to all Borrowers unless Applicable Law expressly requires otherwise ." On June 15, 2009, Citibank notified the defendant and Laura Stein of their rights under the Emergency Mortgage Assistance Program. See General Statutes § 8-265cc et seq. The marshal served all defendants, except the defendant and Laura Stein, whom the marshal was unable to locate. On December 2, 2009, Citibank filed a motion to cite in the defendant and Laura Stein. The court, Mintz, J. , granted the motion to cite in and abode service was effectuated on January 13, 2010. Laura Stein stipulated that she attended the closing and signed numerous documents, but she could not recall what documents she had signed. She agreed that the signature on the documents that were shown to her appears to be hers. Those documents were the loan application, a HUD-1 form, the note, a mortgage that was recorded in the New Canaan land records, a mortgage that was recorded in the Norwalk land records, and a notice of a right to cancel. Laura Stein recognized what appeared to be the defendant's signature on the HUD-1 form, the New Canaan mortgage, and the Norwalk mortgage. She stipulated that the loan is in default. She did not recall receiving a demand letter dated September 6, 2008. On June 25, 2015, Citibank moved to default the defendant for failing to file a trial memorandum containing a statement of law and legal theories as required by the trial management order. The court denied the motion for default but limited the defendant to proceeding on the defenses he had alleged in his special defenses and motion to dismiss. The defendant failed to provide a copy of the transcript of the February 16, 2016 argument. The court issued its order on the defendant's motion for a new trial on May 26, 2016, stating "the court has opened the record and will take additional testimony from [Citibank's] witness at the foreclosure trial . Nguyen . regarding the following: whether . Citibank, Wilmington Trust . or some other entity was the trustee of the trust on June 25, 2015 when . Nguyen testified before this court; whether Nationstar, Wells Fargo Bank . or some other entity was the mortgage servicer for the defendant's mortgage when . Nguyen testified; and if an entity other than Nationstar was the mortgage servicer, whether . Nguyen was familiar with the books and records of such mortgage servicer at that time and was authorized to testify on its behalf." The defendant did not provide a transcript of the oral argument. The record clearly demonstrates that the court granted the defendant's reargument on his motion to dismiss. We will not address that portion of the defendant's claim further. "A presumption in favor of a party, that a particular fact is true, shifts the burden of persuasion to the proponent of the invalidity of that fact, and that burden is met when, by the particular quantum of proof, the validity of the fact has been rebutted." Anderson v. Litchfield , supra, 4 Conn. App. at 28, 492 A.2d 210. In a footnote, the court addressed the defendant's claim raised in his posttrial brief that Wilmington Trust had succeeded Citibank as trustee. The court declined to take judicial notice of the transfer as the defendant requested. It concluded that even if it had taken judicial notice of the transfer, the change of trustee would not be a basis to dismiss the action, citing Washington Mutual Bank, F.A. v. Walpuck , 134 Conn. App. 446, 447, 43 A.3d 174 (assignee has option to pursue litigation in its own name or in name of its assignor), cert. denied, 305 Conn. 902, 43 A.3d 663 (2012). The court also addressed at length the defendant's motion for a new trial, distinguishing the deference between a motion for a new trial and a petition for a new trial. The denial of the defendant's motion for a new trial is not at issue in this appeal. In conjunction with this claim that the court erred by denying his motion to dismiss, the defendant argues that the court erred, as a matter of law, by failing to determine whether it had subject matter jurisdiction before permitting Citibank to present its case. "It is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court.... Our Supreme Court has explained that once raised, either by a party or by the court itself, the question [of subject matter jurisdiction] must be answered before the court may decide the case.... [e]verything else screeches to a halt whenever a non-frivolous jurisdictional claim is asserted." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Fennelly v. Norton , 103 Conn. App. 125, 136-37, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007). The record discloses that several days prior to the start of trial on June 24, 2015, the defendant filed a motion to dismiss and the plaintiff filed two motions in limine. The court heard from counsel as to the bases of the parties' motions, which included multiple discovery issues regarding the production of documents and the parties' failure to comply with the court's standing orders. Thereafter, the court stated: "Well, I think we're going to proceed because I think we are starting this hearing, we have the motion to dismiss that is still on the table. We are past the point of conducting discovery. I think that based on Judge Povodator's order, it appears the parties were not in compliance with the standing orders and here we are, so we are going forward." Although counsel for the defendant agreed to go forward with evidence, he repeated his request for the court to order Citibank to produce certain documents. In reply, the court stated: "I think you had the trial date and the trial was not continued. It had been continued, previously, but not continued in anticipation of any of the discovery that you are looking for now. The motion for protective order was denied. The motion to dismiss has been filed. There's not been a motion to continue the trial, and as I said when we started we're not going to continue the trial because the evidence in the trial will, you know, the plaintiff has the burden of proof, and if the plaintiff doesn't have standing, then the plaintiff can't go forward. So the evidence is going to address your motion as well." Following trial, the court issued its memorandum of decision on January 7, 2016. In its decision, the court determined that Citibank had standing to pursue the action, which is the principal issue in the present appeal. Although the defendant is correct that a court, generally, is required to determine whether a party has standing before it considers the merits of a case, under the circumstances of the present matter, the timing of the court's determination does not constitute legal error. The evidence that Citibank would have had to present to prove standing was the same evidence that it was required to present to prove its case-in-chief. In 2015, the case had been pending for six years and the parties had been arguing over the production of documents for an extended period of time. Judge Mintz sustained the defendant's objection to Citibank's motion for summary judgment as to liability in order to permit the defendant to conduct discovery. Judge Mintz ordered that Citibank's motion for summary judgment was to be argued on November 17, 2014, but it was not argued on that date or ever. The discovery issue languished until June, 2015, when the case was set down for trial. The defendant could have secured a ruling on the issue of standing by pursuing discovery and arguing the motion for summary judgment on November 17, 2014. Judge Heller noted that the defendant took no action to compel discovery. On appeal, the defendant has not demonstrated that he was harmed by Judge Heller's decision to hear the motion to dismiss and the plaintiff's case simultaneously. "When the jurisdictional facts are intertwined with the merits of the case, the court may in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred." Conboy v. State , 292 Conn. 642, 653 n.16, 974 A.2d 669 (2009). The trial court is empowered to manage its own docket. See Ill v. Manzo-Ill , 166 Conn. App. 809, 824-25, 142 A.3d 1176 (2016) (court has power to manage its dockets to prevent undue delays in disposition of pending cases). Under the procedural and factual circumstances of the present case, we cannot conclude that the court committed legal error or abused its discretion by pragmatically and flexibly proceeding with respect to the defendant's motion to dismiss. See Suntech of Connecticut, Inc. v. Lawrence Brunoli , Inc. , 173 Conn. App. 321, 333-34 n.15, 164 A.3d 36 (2017) (court does not abuse discretion by adhering to scheduling order), appeal dismissed, 330 Conn. 342, 193 A.3d 1208 (2018). To the extent that the defendant claims that Nguyen was not a credible witness, he cannot prevail. "[A]s a general rule, appellate courts do not make credibility determinations. [I]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.... Credibility must be assessed . not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude.... An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [fact finder] . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences from them." (Internal quotation marks omitted.) Zilkha v. Zilkha , 167 Conn. App. 480, 487-88, 144 A.3d 447 (2016). The defendant also claims that by opening the record and taking additional testimony from Nguyen, he was denied due process and the right to conduct further discovery. The claim is not reviewable, as the defendant did not preserve it in the trial court. Moreover, the defendant failed to identify what efforts he made to pursue posttrial discovery or how the trial court prevented him from pursuing additional discovery. "[I]t is well established that [w]e will not decide an appeal on an issue that was not raised before the trial court.... To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge." (Internal quotation marks omitted.) In re Anna Lee M. , 104 Conn. App. 121, 124 n.2, 931 A.2d 949, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007). The defendant has not asked us to review the claim under any of the extraordinary remedy doctrines. The common-law rule has been codified in General Statutes § 49-17, which provides: "When any mortgage is foreclosed by the person entitled to receive the money secured thereby but to whom the legal title to the mortgaged premises has never been conveyed, the title to such premises shall, upon the expiration of the time limited for redemption and on failure of redemption, vest in him in the same manner and to the same extent as such title would have vested in the mortgagee if he had foreclosed, provided the person so foreclosing shall forthwith cause the decree of foreclosure to be recorded in the land records in the town in which the land lies." The defendant also claims that Citibank failed to comply with the notice provisions of the mortgage as the default notice was sent to Laura Stein, who is not a mortgagor. Because Laura Stein and the defendant signed the mortgage, the claim fails. In J.E. Robert Co. , the defendants appealed from the judgment of strict foreclosure and a deficiency judgment "predicated on the standing of the original plaintiff, loan servicer J.E. Robert Company, Inc. . and the substitute plaintiff, Shaw's New London, LLC." J.E. Robert Co. v. Signature Properties, LLC , supra, 309 Conn. at 311, 71 A.3d 492. The underlying facts concerning the transfers of notes and mortgages and assignment of rights are recounted in the opinion; see id., at 313-14, 71 A.3d 492 ; but are not relevant to the present appeal. Nguyen testified, in part, as follows: "[The Plaintiff's counsel]: In this instance, was [Citibank] in physical possession of the note prior to the commencement of the action? "[Nguyen]: Yes. "[The Plaintiff's counsel]: And was the note sent to my law firm? "[Nguyen]: It was."

12493271

Ben OMAR v. COMMISSIONER OF CORRECTION

Omar v. Comm'r of Corr.

2018-02-13

AC 37185

1027

1033

180 A.3d 1027

180

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.942366+00:00

Fastcase

DiPentima, C.J., and Lavine and Bishop, Js.

Ben OMAR v. COMMISSIONER OF CORRECTION

Ben OMAR v. COMMISSIONER OF CORRECTION AC 37185 Appellate Court of Connecticut. Argued December 7, 2017 Officially released February 13, 2018 Matthew C. Egan, assigned counsel, with whom were Emily Graner Sexton, assigned counsel, and, on the brief, James P. Sexton, assigned counsel, and Michael S. Taylor, assigned counsel, for the appellant (petitioner). Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, Eva Lenczewski, supervisory assistant state's attorney, and Marc G. Ramia, senior assistant state's attorney, for the appellee (respondent). DiPentima, C.J., and Lavine and Bishop, Js.

2992

19089

LAVINE, J. The petitioner, Ben Omar, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. Following that denial, the habeas court granted his petition for certification to appeal. On appeal, the petitioner claims that the habeas court improperly rejected his contention that his trial counsel rendered ineffective assistance when she exposed his criminal history to the jury. Because we agree with the habeas court's conclusion that the petitioner failed to prove prejudice under Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), we affirm the judgment of the habeas court. As this court set forth in State v. Omar , 136 Conn. App. 87, 43 A.3d 766, cert. denied, 305 Conn. 923, 47 A.3d 883 (2012), the jury reasonably could have found the following relevant facts. 'On March 25, 2009, Waterbury police Lieutenant Edward Apicella led an undercover team to the intersection of North Main Street and West/East Farm Streets in Waterbury . in order to try 'to purchase narcotics from any individual who would solicit.' Apicella designated Officer Dedrick Wilcox of the Seymour police department to be the undercover purchaser because it was likely that he would not be recognized by the Waterbury street dealers as a police officer. As Wilcox was driving, a black female, later identified as Ida Mae Smith, nodded to him, and Wilcox pulled over. Smith asked, '[W]hat do you need?' and Wilcox responded, 'I need twenty of base,' which meant $20 worth of crack cocaine. Smith then held up two fingers and yelled across the street to the [petitioner], 'I need two.' Wilcox then handed Smith the money, at which point the [petitioner] walked to a nearby mailbox, reached into his pocket and placed two items on the top of the mailbox. Smith walked across the street and handed the money to the [petitioner], who pointed Smith toward the mailbox. Smith then walked to the mailbox, grabbed the items and handed Wilcox the items-two bags of crack cocaine-and said, '[Y]ou're all set.' Wilcox then left the scene and radioed to the surveillance team that the deal was done and met the officers at a prearranged location. The police did not immediately arrest the [petitioner] because they did not want to jeopardize Wilcox's safety or cover for future ongoing undercover operations. Instead, the [petitioner] was arrested six weeks later in May, 2009.'' Id., at 89-90, 43 A.3d 766. Following a jury trial, the petitioner was convicted of various drug related offenses. This court affirmed the petitioner's conviction on direct appeal. See id., at 89, 43 A.3d 766. On February 23, 2012, the petitioner filed a self-represented petition for a writ of habeas corpus. In a single count amended petition, he alleged that he was denied the effective assistance of trial counsel when Stephanie L. Evans, his lawyer, 'exposed to the jury [his] sale and possession of narcotics history and [his subsequent] August 12, 2009 arrest for drugs.'' During the habeas trial, the petitioner specifically focused on Evans' decision to introduce a police incident report and an arrest warrant affidavit into evidence. Both of these items detailed the petitioner's previous convictions, which included drug related offenses. In its written decision denying the habeas petition, the habeas court noted that Evans introduced the arrest warrant affidavit into evidence 'to emphasize the inconsistencies between the [testimony from the state's witnesses] and reports as to the weight of the narcotics seized [on March 25, 2009].'' It concluded, however, that the petitioner failed to prove prejudice under Strickland and did not specifically address whether Evans rendered deficient performance. The petitioner appeals from this judgment. Additional facts will be set forth as necessary. We begin with the applicable standard of review. 'The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.'' (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction , 306 Conn. 664, 677, 51 A.3d 948 (2012). The petitioner claims that the habeas court improperly rejected his contention that Evans rendered ineffective assistance when she exposed his criminal history to the jury. He argues that the 'specific nature'' of his previous convictions demonstrated that he knew how to run a street level drug operation and also damaged his credibility. Evans' decision to expose his criminal record to the jury, according to the petitioner, prejudiced him because the state's case hinged on a credibility contest between him and the arresting officers. Essentially, he argues that the jury would have found him more credible, thus strengthening his sole defense at trial-misidentification-if they did not know of his specific criminal record. We are unpersuaded. The following additional facts and procedural history are relevant to this claim. Lieutenant Apicella, a state's witness, testified at the petitioner's criminal trial. During her cross-examination of Apicella, Evans asked about his prior interactions with the petitioner and whether police had searched the petitioner on March 25, 2009. While questioning Apicella, Evans requested that 'the incident offense report [from March 25, 2009] with attached arrest warrant affidavit'' become full defense exhibits. Both documents were admitted into evidence without objection, and Evans questioned Apicella about their contents. She also asked Apicella why police did not arrest the petitioner on March 25, 2009. Specifically, she asked: 'So you left [Smith and the petitioner] there for another month or so to continue to sell drugs?'' Apicella responded in relevant part: 'That will depend on [the petitioner's] conduct. . That's a decision that he would have to make.'' The prosecutor revisited Apicella's familiarity with the petitioner on redirect-examination and specifically asked him about the petitioner's prior convictions detailed in paragraph 8 of the arrest warrant affidavit. See footnote 3 of this opinion. He also asked Apicella about the petitioner's August 12, 2009 '[arrest] for drugs'' following a separate incident involving a confidential informant. 'In Strickland v. Washington , [supra, 466 U.S. [at] 687 [104 S.Ct. 2052] ], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction. . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. . Unless a [petitioner] makes both showings, it cannot be said that the conviction . resulted from a breakdown in the adversary process that renders the result unreliable. . 'With respect to the performance component . [t]o prove that his counsel's performance was deficient, the petitioner must demonstrate that trial counsel's representation fell below an objective standard of reasonableness. . 'With respect to the prejudice component . the petitioner must demonstrate that counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. . It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.'' (Internal quotation marks omitted.) Minor v. Commissioner of Correction , 150 Conn. App. 756, 761-62, 92 A.3d 1008, cert. denied, 314 Conn. 903, 99 A.3d 1168 (2014). We agree with the habeas court that the petitioner failed to prove prejudice. The state presented a strong case against him. Multiple police officers witnessed Smith provide Wilcox, an undercover police officer, with two items-later determined to be crack cocaine-after she retrieved the items from the top of a mailbox. Police also observed Smith hold up 'two fingers and [yell] across the street to the [petitioner], 'I need two' ' after Wilcox asked for $20 worth of crack cocaine. See State v. Omar , supra, 136 Conn. App. at 89-90, 43 A.3d 766. Multiple officers also positively identified the petitioner as the individual who placed the narcotics onto the top of the mailbox before Smith retrieved them. The petitioner argues that his prior convictions, especially his narcotics convictions, were the only evidence demonstrating that he knew how to use drug runners in a sophisticated street level drug operation. That contention is not accurate. At the petitioner's criminal trial, several police officers testified generally about how street level drug operations frequently use 'runners'' to avoid police detection. They also testified that Smith signaled the petitioner after Wilcox asked for crack cocaine and that Smith gave the petitioner the money she received from Wilcox. The conduct of Smith and the petitioner generally aligned with the testimony of how drug dealers use runners, and Apicella testified that Smith admitted to 'working as a runner with [the petitioner].'' The police report and arrest warrant affidavit were, at most, cumulative and paled in comparison to other evidence reasonably demonstrating that the petitioner knew how to use drug runners. The petitioner also testified at his criminal trial, and the prosecutor questioned him about having several felony convictions. The petitioner does not dispute that the prosecutor properly questioned him about having prior convictions, and the record reveals that the prosecutor did not specifically identify the prior convictions by name. Therefore, the jury knew, in general terms, about the petitioner's extensive criminal history regardless of Evans' decision to expose his specific criminal background to the jury. See, e.g., State v. Pinnock , 220 Conn. 765, 779-81, 601 A.2d 521 (1992) (felony conviction generally admissible to impeach witness' veracity, but where crime does not bear directly on truthfulness, references at trial should ordinarily only be to unspecified felony); see also General Statutes § 52-145 (b) ; Conn. Code Evid. § 6-7. The petitioner claims that the jury would have found him more credible if they were unaware of the specific named felonies of which he had been convicted. Even if we agree, any such marginal enhancement of his credibility would not undermine our confidence in the verdict. The state presented a strong case against the petitioner, and his credibility was undermined when the state cross-examined him about his general criminal background. We are therefore unpersuaded that the jury would have had a reasonable doubt respecting guilt if the jurors did not know the specific names of the petitioner's prior convictions. Finally, the court instructed the jury in relevant part to consider that '[t]he commission of other crimes by this [petitioner] has been admitted into evidence for the sole purpose of affecting his credibility.'' The petitioner concedes that the limiting instruction was not defective. Therefore, contrary to the petitioner's argument, the jury could not use evidence of his prior convictions to demonstrate that he knew how to run a sophisticated street level drug operation. Nor could the jury use that evidence to prove his guilt. See, e.g., State v. Pharr , 44 Conn. App. 561, 576, 691 A.2d 1081 (1997) (jury is presumed to follow trial court's instructions). We acknowledge that the possibility for harm always exists when prior, named convictions are introduced into evidence against a criminal defendant. And this is especially true when the defendant stands accused of the same or similar crimes of which he has been convicted of committing in the past. See, e.g., State v. Geyer , 194 Conn. 1, 14-15, 480 A.2d 489 (1984). Notwithstanding this, the petitioner must prove that there is a reasonable probability that, but for Evans' decision to expose his criminal history to the jury, the result of his criminal trial would have been different. See Minor v. Commissioner of Correction , supra, 150 Conn. App. at 761-62, 92 A.3d 1008. This he has failed to do. The strength of the state's case, the prosecutor's permissible questioning of the petitioner about his criminal history on cross-examination, and the court's instructions lead us to conclude that the result of the petitioner's criminal trial would not have been different but for Evans' conduct. See, e.g., Koslik v. Commissioner of Correction , 127 Conn. App. 801, 812, 16 A.3d 753 (trial counsel introduced evidence of petitioner's prior conviction for same conduct he was accused of committing, but petitioner was not prejudiced due to strength of state's case), appeal dismissed, 301 Conn. 937, 23 A.3d 731 (2011) (certification improvidently granted). Accordingly, the habeas court properly determined that the petitioner failed to prove his ineffective assistance of counsel claim and correctly denied his petition for a writ of habeas corpus. The judgment is affirmed. In this opinion, the other judges concurred. The petitioner was found guilty of 'possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b), sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278(b), conspiracy to sell narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278(b) and 53a-48(a), sale of a controlled substance within 1500 feet of a school zone in violation of General Statutes § 21a-278a(b) and possession of a controlled substance within 1500 feet of a school zone in violation of General Statutes § 21a-278a(b).'' State v. Omar , supra, 136 Conn. App. at 89, 43 A.3d 766. The petitioner alleged that Evans rendered ineffective assistance in twelve different ways. On appeal, the petitioner claims only that the habeas court improperly concluded that Evans did not render ineffective assistance when she exposed the petitioner's criminal history to the jury. Paragraph 8 of the arrest warrant affidavit specifically detailed the petitioner's criminal history prior to being arrested for his involvement in the March 25, 2009 incident. That paragraph stated in relevant part: '[The petitioner] is a convicted felon and was arrested and convicted of the following charges: [p]ossession of [n]arcotics on 10/15/2007, [e]scape [f]irst on 5/1/2006, [f]ailure to [a]ppear [on] 5/5/2005, [two] counts of [c]riminal [p]ossession of a [f]irearm on 7/31/2001, [a]ssault on a [p]olice [o]fficer on 5/3/94, [and two] [c]ounts of [s]ale of [n]arcotics on 5/3/94.'' The parties disagree as to whether Evans provided deficient performance under the performance prong of Strickland and if that issue is even properly before us. We need not reach the performance prong, however, because we conclude that the petitioner failed to prove that he was prejudiced by Evans' performance. See, e.g., Minor v. Commissioner of Correction , 150 Conn. App. 756, 762, 92 A.3d 1008, cert. denied, 314 Conn. 903, 99 A.3d 1168 (2014). Evans cross-examined Apicella in relevant part as follows: 'Q. Isn't it true that [the petitioner] wasn't arrested at that time because you, in fact, actually personally entered Bentley Bail Bonds and searched him and you found no money or drugs on him? 'A. No, ma'am. 'Q. You never conducted a search of his person? 'A. On that day no, ma'am. 'Q. On any other day? 'A. Not that I recall, ma'am. 'Q. Have you ever found drugs on [the petitioner]? 'A. I found a gun, ma'am, but not drugs, no. 'Q. Did you arrest him for that? 'A. Oh, I did, ma'am, yes.'' On recross-examination, Evans also asked Apicella whether the police had arrested the petitioner 'prior to March for narcotics.'' Apicella testified that they had. See State v. Omar , supra, 136 Conn. App. at 95, 43 A.3d 766. We note that the prosecutor did not name the petitioner's previous convictions during closing remarks. Rather, the prosecutor generally argued that the petitioner's convictions affected his credibility. During the criminal trial, the prosecutor did, however, refer the petitioner to paragraph 8 of exhibit E, the arrest warrant affidavit, which listed the petitioner's convictions by name and date. He then cross-examined the petitioner as follows: 'Q. Those are your felonies, aren't they? Correct, sir? 'A. Yes. 'Q. You were convicted of all those, is that right? 'A. Yes.'' The petitioner relies on State v. Pharr , 44 Conn. App. 561, 576, 691 A.2d 1081 (1997) (''[t]here are . occasions where the prejudice is so severe that curative instructions are unlikely to be effective''), to argue that the trial court's instructions 'did not undo the damage caused by . Evans admitting [his prior, named convictions] into evidence.'' The petitioner's reliance on Pharr is misplaced, as the circumstances in that case were markedly different. See id., at 566, 576, 691 A.2d 1081 (trial court unambiguously endorsed in-court testimony over 'what a [police] report says'' and jury charge did not specifically address court's remarks on such endorsement). Although the petitioner alleged that Evans exposed his subsequent August 12, 2009 arrest to the jury, he focuses this appeal on her decision to introduce the March 25, 2009 police incident report and arrest warrant affidavit into evidence. He does not specifically argue how she exposed the subsequent August 12, 2009 arrest to the jury or how it prejudiced him in a distinct manner. To the extent that the petitioner presses this argument on appeal, we conclude that he failed to prove prejudice for the same reasons that the police incident report and arrest warrant affidavit did not prejudice him.

12493438

UNITED AMUSEMENTS AND VENDING COMPANY v. Daniel SABIA

United Amusements & Vending Co. v. Sabia

2018-02-06

AC 38233

630

638

180 A.3d 630

180

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.942366+00:00

Fastcase

UNITED AMUSEMENTS AND VENDING COMPANY v. Daniel SABIA

UNITED AMUSEMENTS AND VENDING COMPANY v. Daniel SABIA AC 38233 Appellate Court of Connecticut. Argued October 25, 2017 Officially released February 6, 2018 Joel Z. Green, Bridgeport, with whom, on the brief, was Linda Pesce Laske, for the appellant (defendant). David Eric Ross, Westport, for the appellee (plaintiff). Alvord, Prescott and Lavery, Js.

3394

20802

LAVERY, J. In this action for breach of contract arising out of a commercial lease, the defendant, Daniel Sabia, appeals, following a trial to the court, from the judgment rendered in favor of the plaintiff, United Amusements & Vending Company, on the plaintiff's single count complaint. The trial court, Hon. Edward F. Stodolink , judge trial referee, awarded $15,000 in damages. The defendant claims on appeal that the trial court (1) failed to find the contract unenforceable based on the defendant's special defenses of mistake and duress; (2) awarded damages based on unconscionable provisions of the contract; and (3) awarded damages inconsistent with the contract and evidence. We agree with the defendant's third claim. Accordingly, we reverse in part the judgment of the court and remand the case for a hearing in damages. We otherwise affirm the court's judgment. The following facts, which the trial court reasonably could have found, and procedural history are pertinent to our decision. Around September, 2012, the plaintiff's president, Jonathan Dentz, contacted the defendant to arrange a meeting to discuss a possible business relationship between the parties. Dentz then met with the defendant on September 9, 2012, at the South Side Café in Torrington (bar), which the defendant owns through a limited liability company. The two discussed the possibility of the plaintiff leasing equipment to the defendant for use in the bar, including a video game machine, dart machines, an automated teller machine (ATM), pool tables, and a jukebox. The defendant already had similar equipment in the bar, but was not under contract with his then current vendor. Dentz went over the standard contract the plaintiff used, and the two came to an agreement on the terms for revenue sharing. The defendant inquired as to an advance on the commissions that would be due. Upon learning that the defendant was earning about $500 per month from his current vendor, Dentz agreed to advance $6000 to the defendant. Dentz left the bar and drew up the contract. The next day, one of the plaintiff's other employees went to the bar with the contract and an advance commission check. The defendant signed the contract on September 10, 2012, and accepted the check. The plaintiff then purchased the equipment pursuant to the contract from third parties. The purchased equipment was never installed at the bar. About three weeks after the contract was signed, Dentz attempted to call the defendant and left multiple messages, but received no response. Then, in October, 2012, the defendant mailed the uncashed commission check to the plaintiff. The plaintiff sent a demand letter on November 2, 2012, informing the defendant that it believed the defendant had breached the contract, and that it would seek damages if the defendant did not settle the matter within seven days. The plaintiff filed a breach of contract action on December 5, 2012, seeking damages, costs of suit, attorney's fees, and interest. In his answer, the defendant admitted signing the contract, but denied defaulting on the agreement. After a trial on July 22, 2015, the court awarded the plaintiff $15,000 in damages, $5000 in attorney's fees, and $687.48 in costs. At the plaintiff's request, the court vacated the award of attorney's fees on May 10, 2016, because the parties had agreed at trial to address attorney's fees after trial. The defendant appealed. We will set forth additional facts as necessary. As a threshold issue, we must address whether this appeal was taken from a final judgment, as the award of attorney's fees was vacated and is still pending. In Paranteau v. DeVita , 208 Conn. 515, 523, 544 A.2d 634 (1988), our Supreme Court promulgated a bright line rule that "a judgment on the merits is final for purposes of appeal even though the recoverability or amount of attorney's fees for the litigation remains to be determined." Although Paranteau itself concerned statutory attorney's fees under the Connecticut Unfair Trade Practices Act, its holding has been applied to other attorney's fees awards. See Hylton v. Gunter , 313 Conn. 472, 484-85, 97 A.3d 970 (2014) (applying Paranteau rule to punitive damages); Benvenuto v. Mahajan , 245 Conn. 495, 501, 715 A.2d 743 (1998) (applying Paranteau rule to strict foreclosure case). Although our Supreme Court has not addressed contractual attorney's fees outside of dicta or footnotes, this court applied the Paranteau bright line rule in Doyle Group v. Alaskans for Cuddy , 164 Conn. App. 209, 222, 137 A.3d 809, cert. denied, 321 Conn. 924, 138 A.3d 284 (2016), holding that "regardless of whether the issue of . contractual attorney's fees remained outstanding, the [trial] court's . judgment was final for purposes of appeal." Thus, despite the issue of attorney's fees in the present case being unresolved, the judgment on the breach of contract is a final judgment for purposes of appeal. I On appeal, the defendant first claims that the trial court failed to find the contract unenforceable based on the defendant's special defenses of mistake and duress. We set forth the relevant standard of review regarding equitable claims. "The determination of what equity requires in a particular case . is a matter for the discretion of the trial court.... This court must make every reasonable presumption in favor of the trial court's decision when reviewing a claim of abuse of discretion.... Our review of a trial court's exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did." (Internal quotation marks omitted.) People's United Bank v. Sarno , 160 Conn. App. 748, 754, 125 A.3d 1065 (2015). We must first consider whether we have an adequate record for review of the defendant's claim regarding his special defenses. We conclude that we do not. Although the defendant pleaded mistake and duress as special defenses in his answer to the complaint and argued these defenses at trial, the trial court made no findings of fact or any rulings regarding these defenses, nor did the court file a written memorandum of decision or prepare and sign a transcript of an oral ruling. See Practice Book § 64-1(a). The defendant did not file, in accordance with our rules of practice, a notice with the appellate clerk of the failure of the trial court to file either a written memorandum or a signed transcript. See Practice Book § 64-1(b). When the defendant later sought an articulation from the court, he only requested articulation regarding damages and attorney's fees, and did not ask the court to address his special defenses. "As the appellant, the defendant has the burden of providing this court with a record from which this court can review any alleged claims of error.... It is not an appropriate function of this court, when presented with an inadequate record, to speculate as to the reasoning of the trial court or to presume error from a silent record." (Citation omitted; internal quotation marks omitted.) Village Mortgage Co. v. Veneziano , 175 Conn. App. 59, 72, 167 A.3d 430, cert. denied, 327 Conn. 957, 172 A.3d 205 (2017) ; see also Practice Book § 61-10(a) ("[i]t is the responsibility of the appellant to provide an adequate record for review"); Michaels v. Michaels , 163 Conn. App. 837, 844-45, 136 A.3d 1282 (2016) (record inadequate where there was no memorandum of decision or signed transcript, appellant did not file notice pursuant to Practice Book § 64-1, and appellant did not seek articulation). Although the record before us includes the trial transcript, we cannot readily identify any portion of the transcript that encompasses the court's factual findings or rulings with respect to the defendant's claims of mistake and duress. Additionally, because there is neither a memorandum of decision nor an articulation regarding these claims, the record is inadequate to review the defendant's claim. See Michaels v. Michaels , supra, at 845, 136 A.3d 1282. II The defendant also claims that the court incorrectly awarded damages based on unconscionable provisions of the contract. "Because unconscionability is a matter of law to be decided by the court . our review on appeal is not limited by the clearly erroneous standard . but is, rather, a plenary review.... We defer, however, to the trial court's factual findings that underlie the determination of unconscionability unless they are clearly erroneous." (Citations omitted.) Emlee Equipment Leasing Corp. v. Waterbury Transmission, Inc. , 31 Conn. App. 455, 461, 626 A.2d 307 (1993) ; see also General Statutes § 42a-2A-107(a). The defendant argued that the contract provisions were unconscionable at trial, but, like the defendant's special defenses, the trial court did not make any findings of fact or rulings regarding unconscionability, file a written memorandum of decision, or prepare and sign a transcript of an oral ruling, nor did the defendant seek an articulation regarding this issue or file with the appellate clerk a notice of the failure of the trial court to file either a written memorandum or a signed transcript. We likewise conclude that because there were no factual findings regarding unconscionability, either written or oral, the record is inadequate to review the defendant's claim of error. See Michaels v. Michaels , supra, 163 Conn. App. at 845, 136 A.3d 1282. III Finally, the defendant claims that the trial court incorrectly calculated damages. Specifically, he claims that the award was inconsistent with the evidence presented at trial. We agree. "The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which [it] would have been in had the contract been performed.... The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.... A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citation omitted; internal quotation marks omitted.) Meadowbrook Center, Inc. v. Buchman , 149 Conn. App. 177, 185, 90 A.3d 219 (2014). The following additional evidence, which was presented at trial, and procedural history are pertinent to our decision. At trial, Dentz testified that the defendant told him that the defendant was receiving approximately $500 per month as his share of revenue under his then current arrangement. Dentz and the defendant used this figure to determine what amount the plaintiff would advance the defendant. Dentz then testified that the plaintiff incurred costs of $19,574.78 in acquiring from third parties the dart machines, jukebox, and ATM for the bar, and presented the invoices to support this claim. On cross-examination, Dentz admitted that the plaintiff did not return the equipment and that it was still in its warehouse. Dentz stated that he inquired about returning the equipment, but upon finding out that there would be a restocking fee of about 50 percent, he elected not to return the equipment. After the defendant did not accept delivery, the plaintiff leased out other jukeboxes and ATMs, but no other dart machines. At the conclusion of trial, the court stated: "I've heard the testimony of the parties. I've also reviewed in brief the exhibits. This is sort of a mixed basis for a damage award. We have the fact that the contract calls for some $20,000 in equipment to be reimbursed. It also calls for liquidated damages over a large period of time. On the other hand, the defense has indicated that there are some questions about the accuracy of those claims.... [T]he court will enter a judgment in favor of the plaintiff for a principal amount of $15,000 ." The defendant later moved for an articulation, asking (1) the manner and method by which the court calculated and determined the amount of damages awarded and (2) the evidence and findings of fact relied upon in fashioning the award of damages. In its articulation, the court stated: "The judgment of $15,000 consists of a $10,000 restocking charge for the equipment purchased, as shown in exhibit 4, and an operator's commission of $500 per month for ten months, a reasonable period of time, in order that the plaintiff can redirect the use of the machines shown in exhibit 4 to other locations." As to the basis of its findings, the court directed the defendant to "[s]ee exhibits 1 and 4 and the testimony of . Dentz." We conclude that the court's calculation of damages was incorrect. First, the court awarded $10,000 in damages based on a 50 percent restocking fee claimed by the plaintiff. This damages award for a restocking fee finds no basis in the evidence. Although Dentz testified to being quoted a restocking fee of about 50 percent, Dentz also testified that the plaintiff did not return the equipment, and, therefore, did not incur any restocking fee. Moreover, at least one invoice in exhibit 4 belies the 50 percent figure. The second invoice, for the ATM, clearly states that "all returned merchandise will be subject to a 25 percent restocking fee plus the original shipping cost." Thus, the plaintiff would have forfeited the $250 freight cost, and the restocking fee for the return of the $3698 machine would have been $924.50, not $1849. Second, the court's award of $500 per month for ten months as an operator's commission finds no basis in the evidence. At trial, Dentz testified that the plaintiff advanced the defendant $6000 because the defendant claimed he had been receiving approximately $500 per month under his then current equipment deal. There is no evidence in the record to support that this arrangement was in any way similar to the revenue sharing agreed to in the parties' contract. In addition, that $500 figure included revenue derived from all equipment in the bar, which would necessarily include any pool tables or video game machines then present. Although the contract included provisions for the lease of two pool tables and a video game machine, the plaintiff did not claim any damages with respect to this equipment, which in turn would have affected the calculation of revenue. Additionally, the $500 per month figure represented the defendant's share of revenue, not his previous lessor's share. Thus, it is inappropriate to equate the parties' shares of revenue under this contract because not all revenue was to be split evenly between the parties. Although evidence showed that some of the leased equipment would have involved a 50-50 split of revenue under the contract, notably, the jukebox and ATM would not. On the basis of our review of the evidence, we are left with the definite and firm conviction that a mistake has been committed in the calculation of damages; therefore, we cannot uphold it. In light of our conclusion, we do not address whether the plaintiff failed to mitigate its damages, as that issue will be addressed on remand. Finally, we "must observe that this case has been presented with virtually total disregard of the relevant provisions of our statutes, in particular . the Uniform Commercial Code . While it is true that the Code incorporates, by reference, supplementary general principles of contract law and of the law merchant . such supplemental bodies of law cannot displace those provisions of the Code that are directly applicable." (Citations omitted.) Bead Chain Mfg. Co. v. Saxton Products, Inc. , 183 Conn. 266, 270, 439 A.2d 314 (1981) (Peters, J. ). Article 2A of the Uniform Commercial Code "applies to any transaction regardless of form which creates a lease." General Statutes § 42a-2A-103. Therefore, on remand, we direct the parties' attention to the sections of article 2A pertaining to remedies for default, General Statutes § 42a-2A-701 et seq. The judgment is reversed with respect to the award of damages and the case is remanded for a hearing in damages in accordance with this opinion; the judgment is affirmed in all other respects. In this opinion the other judges concurred. In his principal brief, the defendant did not raise any claim of error regarding the court's disposition of his special defense of unclean hands. In its brief, the plaintiff addresses an unclean hands claim that the defendant did not brief. In his reply, the defendant then analyzes unclean hands for the first time. It is well established that we do not review claims raised for the first time in a reply brief, because "[o]ur practice requires an appellant to raise claims of error in his original brief, so that the issue as framed by him can be fully responded to by the appellee in its brief ." (Internal quotation marks omitted.) SS-II, LLC v. Bridge Street Associates , 293 Conn. 287, 302, 977 A.2d 189 (2009). The defendant, however, did not frame the issue, so even though the plaintiff addressed unclean hands, it could not fully respond to an argument that did not exist. Accordingly, we decline to review this claim. The defendant also claims that the damages award was inconsistent with the liquidated damages provision of the contract. Because we are firmly convinced that the damages award as articulated by the court was incorrectly calculated based on the evidence adduced at trial, we do not address whether the award was consistent with the liquidated damages provision of the contract. This is the only evidence of any revenue in the entire record. The plaintiff made no claim for damages regarding the pool tables or video game machine it purchased, as those were placed in other establishments. The revenue splitting for the ATM was to be: the full surcharge to the plaintiff and $0.50 per transaction to the defendant. The revenue splitting for the jukebox was to be: the first $75 kept each week and then 50 percent of the balance to the plaintiff, and the first $75 deducted each week and then 50 percent to the defendant. We note that, prior to the present case, no appellate court of this state has addressed article 2A since its adoption in this state, although it was used before its adoption for its instructiveness in a claim of unconscionability in a finance lease in Emlee Equipment Leasing Corp. v. Waterbury Transmission, Inc. , supra, 31 Conn. App. 455, 626 A.2d 307. We particularly direct the parties' attention to General Statutes § 42a-2A-716, which provides in part: "(a) If the lessee wrongfully rejects or revokes acceptance of goods or fails to make a payment when due or repudiates with respect to a part or the whole, the lessee is in default under the lease contract with respect to any goods involved, and with respect to all of the goods if under an installment lease contract the value of the whole lease contract is substantially impaired, and the lessor may do one or more of the following: "(1) Withhold delivery of the goods and take possession of goods previously delivered; "(2) Stop delivery of the goods by any carrier or bailee under subsection (b) of section 42a-2A-719; "(3) Proceed under section 42a-2A-718 with respect to goods still unidentified to the lease contract or unfinished; "(4) Obtain specific performance under section 42a-2A-708 or recover the rent under section 42a-2A-722; "(5) Dispose of the goods and recover damages under section 42a-2A-720 or retain the goods and recover damages under section 42a-2A-721; "(6) Recover incidental and consequential damages under sections 42a-2A-706 and 42a-2A-707; "(7) Cancel the lease contract under section 42a-2A-709; "(8) Recover liquidated damages under section 42a-2A-710; "(9) Enforce limited remedies under section 42a-2A-711; "(10) Recover damages under section 42a-2A-705; or "(11) Exercise any other rights or pursue any other remedies provided in the lease agreement. "(b) If the lessor does not fully exercise a right or obtain a remedy to which the lessor is entitled under subsection (a) of this section, the lessor may recover the loss resulting in the ordinary course of events from the lessee's default as determined in any reasonable manner, together with incidental damages, less expenses avoided as a result of the lessee's default...." We note that some of these remedies may be inapplicable to the present case.

12510617

Malgorzata ZANIEWSKI v. Cezary ZANIEWSKI

Zaniewski v. Zaniewski

2019-06-04

AC 39903

620

628

210 A.3d 620

210

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

Malgorzata ZANIEWSKI v. Cezary ZANIEWSKI

Malgorzata ZANIEWSKI v. Cezary ZANIEWSKI AC 39903 Appellate Court of Connecticut. Argued January 17, 2019 Officially released June 4, 2019 James E. Mortimer, for the appellant (defendant). Katarzyna Maluszewski, for the appellee (plaintiff). Lavine, Prescott and Elgo, Js.

3887

24270

PRESCOTT, J. The defendant, Cezary Zaniewski, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Malgorzata Zaniewski. The defendant claims on appeal that the court improperly (1) failed to use the parties' net incomes in calculating its orders of child support and alimony, (2) ordered the defendant to pay alimony in an amount that exceeds his ability to pay, and (3) abused its discretion by crafting inequitable property distribution and alimony orders that 'excessively and unjustifiably favored the plaintiff." The trial court's memorandum of decision fails to set forth the factual basis for its financial orders. The trial judge who authored the decision retired shortly after issuing its decision, rendering fruitless the defendant's proper and timely efforts to remedy the decision's lack of findings in order to secure appellate review of his claims. In many cases, an inadequate record would foreclose appellate review of an appellant's claim. Nevertheless, the inadequacy of the record in the present case arises not from any fault attributable to the defendant, but from the trial court's issuance of a memorandum of decision that contained virtually no factual findings that would permit us to review appropriately the defendant's appellate claims. Although we are cognizant that the trial court is entitled to great deference in crafting financial orders in marital dissolution actions, we nevertheless conclude under the unique circumstances presented here that equity requires a new trial. Accordingly, we reverse the judgment of the trial court with respect to the financial orders and order a new trial. The matter was tried before the court over the course of three days, ending on November 22, 2016. On November 25, 2016, the court issued a four page memorandum of decision dissolving the parties' marriage on the basis of irretrievable breakdown. The trial court's decision contains only the following uncontested facts. The parties were married in New York in 2005. They have two minor daughters who were issue of the marriage. In January, 2016, the plaintiff, who had resided in Connecticut for at least one year, commenced the underlying action for dissolution of marriage. The memorandum is devoid of any relevant factual findings, and the court's legal analysis is limited to the following statement: "The court listened to and observed witnesses, and reviewed the exhibits. In addition, the court carefully considered the criteria set forth in the Connecticut General Statutes in reaching the decisions reflected in the orders below." The court did not discuss the respective financial circumstances of the parties, including any findings regarding their income or earning potential. The court made no findings with respect to the value of any marital assets, and provided no analysis or rationale for its division of the marital property or its other financial orders. The court did not indicate whether either party was at fault for the breakdown of the marriage or shared fault. The court made no explicit credibility determinations regarding the testimony of witnesses. Although the plaintiff claims that completed child support guideline worksheets were provided to the court by the parties, she concedes that they were never made a part of the record. There are no completed child support guideline worksheets in the trial court file. The remainder of the court's decision consists of nineteen, separately numbered orders. In addition to orders dissolving the parties' marriage and incorporating by reference the parties' parenting plan, the court ordered the defendant to pay the plaintiff "$ 204 per week as child support in accordance with the child support guidelines" and "$ 100 per week as alimony for a period of three years from the date of [the] judgment . [to] terminate upon the death of either party or the plaintiff's remarriage . [and] subject to the pro-visions of [General Statutes] § 46b-86 (b)." The parties were ordered to share equally in the cost of their children's extracurricular activities and healthcare. The court awarded the parties' delicatessen business and marital residence in Plainville to the plaintiff without assigning a value to those assets, and ordered the defendant to sign all necessary paperwork to transfer his interest in those properties to the plaintiff. The court allowed the defendant to retain "any interest he may have" in a rental property owned by his family in Queens, New York. The court did not identify what interest, if any, the defendant had in the property or assign a value to that interest, although the record indicates that these issues were hotly contested at trial. The court ordered that the parties be responsible for the debts listed on their respective financial affidavits, with the exception of the balance on two credit cards, for which they would be equally responsible. Each party was awarded whatever personal property currently was in his or her possession, including automobiles, and each was permitted to retain his or her own bank accounts except for certain joint accounts with Farmington Bank, which were awarded to the plaintiff. The court also ordered that it would "retain jurisdiction over educational support orders pursuant to [General Statutes] § 46b-56c." The defendant timely appealed from the dissolution judgment on December 15, 2016. On June 23, 2017, the defendant filed a motion for articulation in accordance with Practice Book § 66-5. The defendant asked the trial court to articulate its factual findings regarding, among other things, the parties' respective gross incomes, which were in dispute, and what value it had assigned to their various assets and liabilities. The defendant also asked the court to indicate whether it found the parties' financial affidavits or trial testimony credible with respect to these matters. The defendant also made several requests for articulation related to the New York rental property purportedly owned by his family. In particular, he sought to have the trial court articulate the factual basis for determining that he had retained any interest in the New York property, what interest, if any, it found he had retained in the property, and whether the court had credited an appraisal of the property that was entered into evidence. These requests for articulation all related to the defendant's principal claims on appeal that the trial court improperly calculated the alimony and child support awards and inequitably divided the parties' marital assets and debts. The plaintiff did not oppose the motion for articulation. The motion for articulation was forwarded to the trial court on June 23, 2017. Judge Pinkus, the trial judge, who retired on June 15, 2017, did not act on the motion. On September 29, 2017, the motion for articulation was redirected to Judge Susan A. Connors, the presiding family judge. On October 6, 2017, Judge Connors issued an order denying the defendant's motion for articulation. The court's order stated: "The motion for articulation is denied. Neither party has requested a hearing nor does the court deem it necessary to hold a hearing. The trial judge, Judge Pinkus, has retired and is without jurisdiction to take any further action." On October 16, 2017, the defendant timely filed a motion for review of the court's decision denying his motion for articulation. The plaintiff did not file any objection to the motion for review. The defendant argued that Judge Connors incorrectly concluded that Judge Pinkus lacked jurisdiction to act on the motion for articulation due to his retirement. The defendant noted that General Statutes § 51-183g expressly provides authority for such action, and he asked this court to order the trial court to articulate its findings in response to the questions posed in his motion for articulation. On January 24, 2018, a panel of this court granted the motion for review, but denied the relief requested therein. The defendant principally claims on appeal that he is entitled to a new trial regarding the court's financial orders because he contends that the court failed to use the parties' net incomes in calculating its orders of child support and alimony and inequitably distributed the marital assets. The defendant recognizes that the trial court failed to set forth in its memorandum of decision express findings regarding what income it imputed to the parties in calculating its support orders or even what evidence it relied on in reaching its conclusions. Nevertheless, he argues that the trial court did not use the net income figures from the parties' financial affidavits, and that, under any reasonable view of the evidence before the court, "[i]t becomes quite evident that the trial court utilized some amount in excess of the respective net incomes of one or both parties when fashioning its child support award ." In response, the plaintiff does not dispute that the parties presented confusing and conflicting evidence to the court regarding the parties' incomes and values of marital assets and acknowledges that the trial court's decision contains no express findings of income nor any explanation of how the court calculated its support orders. The plaintiff conceded at oral argument that, although the parties provided the trial court with child support worksheets, they were never made a part of the trial court file and, thus, are not part of the record before us on appeal. The plaintiff also conceded that the court was required to assign some value to the defendant's present interest in the New York rental property in order to equitably distribute the marital assets, a finding that was not included in the court's memorandum of decision. The plaintiff nevertheless argues that (1) the court, as the trier of fact, was free to disregard the parties' financial affidavits and to credit whatever evidence it chose, (2) evidence was available for the court to make all necessary factual findings, and (3) although not expressly set forth in its decision, those findings are implied. In sum, the plaintiff argues that "sufficient facts exist on the record to draw the conclusions supporting the order[s] issued by the trial court," and, given the highly deferential standard that applies to appellate review of financial orders in dissolution actions, we must presume that the court acted correctly. On the basis of our review of the trial transcripts and the remainder of the record, we conclude, contrary to the plaintiff's argument, that it is impossible to ascertain what path the court followed in crafting its support orders and dividing the marital assets without engaging in pure speculation. Had the defendant failed to avail himself of procedures to obtain an articulation of the court's factual findings, including those regarding the parties' gross incomes and valuation of assets, it is highly unlikely that the defendant could prevail on any of his claims on appeal. Nevertheless, the defendant did attempt to have the court articulate the factual findings necessary to obtain review of the financial orders, although those efforts were of little avail given the retirement of Judge Pinkus. We conclude, for the reasons that follow, that, given the present circumstances, which are unlikely to arise with any frequency in the future, it would be against the interests of justice to apply mechanistically a presumption of correctness to the court's support orders because to do so would effectively, and unfairly, result in a forfeiture of the defendant's statutory appellate rights. See Practice Book § 61-10, commentary. We begin with our standard ofWe begin with our standard of review and other relevant law. "A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.... Our standard of review for financial orders in a dissolution action is clear. The trial court has broad discretion in fashioning its financial orders, and [j]udicial review of a trial court's exercise of [this] broad discretion . is limited to the question of whether the . court correctly applied the law and could reasonably have concluded as it did.... In making those determinations, we allow every reasonable presumption . in favor of the correctness of [the trial court's] action.... "This deferential standard of review is not, however, without limits. There are rare cases in which the trial court's financial orders warrant reversal because they are, for example, logically inconsistent . or simply mistaken . We cannot countenance financial orders that are the product of mistake, even if they ultimately may be seen to be reasonable.... The trial court's decision must be based on logic applied to facts correctly interpreted. . Each party is entitled to overall financial orders which reflect the court's discretion and are based upon the facts elicited and the statutory criteria." (Citation omitted; emphasis added; internal quotation marks omitted.) Hammel v. Hammel , 158 Conn. App. 827, 835-36, 120 A.3d 1259 (2015). Another limit placed on the trial court discretion's in crafting financial orders is the requirement under our rules of practice that the court provide a written or oral decision that "shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor. " (Emphasis added.) Practice Book § 64-1. Without such a rule, a trial court could inoculate important rulings from appellate scrutiny simply by electing not to set forth the factual basis for its rulings. In Scherr v. Scherr , 183 Conn. 366, 439 A.2d 375 (1981), our Supreme Court considered whether a trial court in a dissolution action had committed reversible error by failing adequately to set forth the factual basis for its financial orders as required under the predecessor of Practice Book § 64-1. In addressing the plaintiff's claim premised on the brevity of the trial court's memorandum of decision, the court in Scherr stated: "The plaintiff urges that meaningful appellate review of the trial court's exercise of its discretion is made impossible by too brief a statement of its reasoning by a trial court. Undoubtedly this becomes true at some point. We hold, however, that in the circumstances of this case, given the transcript and other parts of the record available to us, the memorandum meets the minimum requirements of reviewability." (Emphasis added; footnote omitted.) Scherr v. Scherr , supra, at 368, 439 A.2d 375. Significantly, the court in Scherr also based its decision to reject the plaintiff's claim on the fact that the plaintiff had never alerted the trial court about the inadequacies in the memorandum of decision, indicating that the plaintiff could have filed a motion for articulation. Id., at 368-69, 439 A.2d 375. We read Scherr as recognizing the possibility that "at some point," a court's failure to set forth factual findings in support of its financial orders could provide a procedural basis for reversing those orders, particularly if the appellant diligently attempted to remedy the inadequacy of the record without success. Id., at 368, 439 A.2d 375. The outcome in Scherr certainly is consistent with our appellate courts' treatment of claims raised in the face of an inadequate factual record, particularly if the appellant has not resorted to available procedural tools to perfect the record. It is axiomatic that the appellant bears the burden of providing this court "with a record adequate to review his claim of error." (Internal quotation marks omitted.) Kaczynski v. Kaczynski , 294 Conn. 121, 129, 981 A.2d 1068 (2009). Furthermore, "a claim of error cannot be predicated on an assumption that the trial court acted erroneously." (Internal quotation marks omitted) Id., at 129-30, 981 A.2d 1068. Accordingly, our appellate courts often have recited, in a variety of contexts, that, in the face of an ambiguous or incomplete record, we will presume, in the absence of an articulation , a trial court acted correctly, meaning that it undertook a proper analysis of the law and made whatever findings of the facts were necessary. See, e.g., Bell Food Services, Inc. v. Sherbacow , 217 Conn. 476, 482, 586 A.2d 1157 (1991) ("[if] an appellant has failed to avail himself of the full panoply of articulation and review procedures, and absent some indication to the contrary, we ordinarily read a record to support, rather than to contradict, a trial court's judgment"). The question before us is whether this same presumption is warranted in a case in which a party has done all that can reasonably be expected to obtain an articulation but has been thwarted through no fault of its own. We answer that question in the negative and decline to apply a presumption of correctness to a trial court decision that is devoid of any factual findings in support of its conclusions. In this case, the defendant took all reasonable actions necessary to remedy the lack of adequate factual findings necessary for our review. He filed a motion for articulation. When that motion was denied on faulty jurisdictional grounds, he timely filed a motion for review of that decision with this court. Furthermore, the plaintiff never filed any opposition at any stage of the proceedings contending that the requests for articulation were not necessary for a proper review of the claims on appeal. Moreover, an action to dissolve a marriage is an equitable proceeding and, thus, principles of equity must guide the entire process, including any appeal. "The power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. Without this wide discretion and broad equitable power, the courts in some cases might be unable fairly to resolve the parties' dispute . The term equity denotes the spirit and habit of fairness, justness and right dealing which would regulate the intercourse [between individuals]." (Citation omitted; internal quotation marks omitted.) Luster v. Luster , 128 Conn. App. 259, 264-65 n.9, 17 A.3d 1068, cert. granted on other grounds, 302 Conn. 904, 23 A.3d 1243 (2011) (appeal dismissed April 12, 2012). "To affirm for lack of record when the faulty record stems from the trial court's failure to comply with [what is now Practice Book § 64-1 ], despite a motion for articulation, would deprive the plaintiff of an appeal despite the significance of the issues involved and despite the strong, yet imperfect, efforts of counsel." Holmes v. Holmes , 32 Conn. App. 317, 334, 629 A.2d 1137 (Lavery, J. , dissenting), cert. denied, 228 Conn. 902, 634 A. 2d 295 (1993). Having considered all the competing interests involved, which includes the plaintiff's interest in not having to relitigate issues that she would contend properly were decided in her favor, we conclude that the appropriate action in this case is to remand the matter for a new trial on all financial orders. The judgment is reversed with respect to the financial orders only and the matter is remanded for a new trial; the judgment is affirmed in all other respects. In this opinion the other judges concurred. The children were born in July, 2006, and March, 2009. The parties agreed to joint legal custody of the children, with the plaintiff having primary physical custody subject to a visitation schedule with the defendant as set forth in the parenting plan. The nature of the defendant's interest in the New York property was disputed at trial. The defendant testified that he had purchased the New York property for his parents and brother-in-law in 2001, prior to his marriage with the plaintiff, and then had transferred the property to his parents in October, 2014, in order to secure a loan to expand the delicatessen business. The plaintiff took the position that the transfer of the property was fraudulent and meant to hide a marital asset. General Statutes § 51-183g provides: "Any judge of the Superior Court may, after ceasing to hold office as such judge, settle and dispose of all matters relating to appeal cases, as well as any other unfinished matters pertaining to causes theretofore tried by him, as if he were still such judge." The plain language of this statute demonstrates that the trial court's assessment that Judge Pinkus lacked jurisdiction to act on the motion for articulation due to his retirement was incorrect. Nevertheless, as the panel of this court that considered the motion for review undoubtedly concluded in declining to order an articulation, the mere fact that a retired jurist has continuing statutory authority to act does not solve the myriad of issues and impracticalities involved in forcing a retired jurist to return to service. The statute states only that a judge "may" act after retirement; it does not mandate any action. We leave for another time the proper procedure for trial courts to follow if faced with a motion for articulation or rectification directed to a retired judge, but we do not believe that the remedy contemplated by § 51-183g presents a viable option under the totality of the circumstances in this case. "It is well settled that a court must base child support and alimony orders on the available net income of the parties, not gross income." (Internal quotation marks omitted) Tuckman v. Tuckman , 308 Conn. 194, 209, 61 A.3d 449 (2013). A trial court abuses its discretion by ordering child support "without determining the net income of the parties, mentioning or applying the guidelines, or making a specific finding on the record as to why it was deviating from the guidelines." Id., at 208, 61 A.3d 449. In the present case, although the court indicated it followed the child support guidelines, we are left to speculate as to what income figures the trial court utilized in its calculations. Furthermore, if the court deviated from the guidelines, it did not indicate this in its decision, nor did it provide any rationale for making a deviation. Certainly, there is no doubt that we have the authority to order the trial court to undertake whatever actions may be necessary to perfect the record on appeal. See Practice Book § 60-2, 60-5, and 61-10. It would not be possible, however, for a judge to state the factual basis underlying another judge's discretionary decisions, particularly because the new judge would be left to speculate about what evidence the other judge may have credited, and to reevaluate witness testimony from a printed transcript without the ability to make important and necessary credibility determinations. As we have indicated, ordering the retired judge to articulate factual findings at this time is a wholly impractical option. See footnote 4 of this opinion. The trial court in Scherr had dissolved a twenty-three year marriage "without any award of alimony [to the plaintiff appellant], with a relatively modest award of child support, and with an award to the defendant of one-half of the equity in the marital home." Scherr v. Scherr , supra, 183 Conn. at 369, 439 A.2d 375. "Individual financial orders in a dissolution action are part of the carefully crafted mosaic that comprises the entire asset reallocation plan.... Under the mosaic doctrine, financial orders should not be viewed as a collection of single disconnected occurrences, but rather as a seamless collection of interdependent elements. Consistent with that approach, our courts have utilized the mosaic doctrine as a remedial device that allows reviewing courts to remand cases for reconsideration of all financial orders even though the review process might reveal a flaw only in the alimony, property distribution or child support awards." (Internal quotation marks omitted.) Barcelo v. Barcelo , 158 Conn. App. 201, 226, 118 A.3d 657, cert. denied, 319 Conn. 910, 123 A.3d 882 (2015).

12489235

STATE of Connecticut v. Junior JUMPP

State v. Jumpp

2017-02-14

AC 38452

822

823

155 A.3d 822

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

STATE of Connecticut v. Junior JUMPP

STATE of Connecticut v. Junior JUMPP AC 38452 Appellate Court of Connecticut. Argued January 4, 2017 Officially released February 14, 2017 Robert T. Rimmer, assigned counsel, for the appellant (defendant). Melissa Patterson, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Carl R. Ajello III, supervisory assistant state's attorney, for the appellee (state). DiPentima, C. J., and Prescott and Lavery, Js.

203

1272

PER CURIAM. Opinion The defendant, Junior Jumpp, appeals from the denial of his motion for sentence modification made pursuant to General Statutes § 53a-39. The defendant has completed the sentence that was the subject of his motion. This court cannot grant the defendant any practical relief, and therefore his appeal is moot. State v. Bradley , 137 Conn.App. 585, 587 n.1, 49 A.3d 297, cert. denied, 307 Conn. 939, 56 A.3d 950 (2012) ; see also State v. Boyle , 287 Conn. 478, 485-86, 949 A.2d 460 (2008) ; State v. Scott , 83 Conn.App. 724, 726-27, 851 A.2d 353 (2004). We also summarily reject the defendant's claim that this case falls within the capable of repetition yet evading review exception to the mootness doctrine. See Loisel v. Rowe , 233 Conn. 370, 382-83, 660 A.2d 323 (1995). The appeal is dismissed.

12489157

Saverio A. SORRENTINO v. Kathryn M. SORRENTINO

Sorrentino v. Sorrentino

2017-01-30

No. 38500

330

330

155 A.3d 330

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Saverio A. SORRENTINO v. Kathryn M. SORRENTINO

Saverio A. SORRENTINO v. Kathryn M. SORRENTINO No. 38500 Appellate Court of Connecticut. Submitted on briefs January 30, 2017 Officially released February 21, 2017

30

201

Per Curiam. The appeal is dismissed.

12489156

Maria DELGADO v. Jose DELGADO

Delgado v. Delgado

2016-11-16

No. 38014

329

329

155 A.3d 329

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Maria DELGADO v. Jose DELGADO

Maria DELGADO v. Jose DELGADO No. 38014 Appellate Court of Connecticut. Submitted on briefs November 16, 2016 Officially released December 13, 2016

28

186

Per Curiam. The judgment is affirmed.

12489155

Victor L. JORDAN, Sr. v. COMMISSIONER OF CORRECTION

Jordan v. Comm'r of Corr.

2016-12-13

No. 38409

329

329

155 A.3d 329

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Victor L. JORDAN, Sr. v. COMMISSIONER OF CORRECTION

Victor L. JORDAN, Sr. v. COMMISSIONER OF CORRECTION No. 38409 Appellate Court of Connecticut. Argued November 16, 2016 Officially released December 13, 2016

29

195

Per Curiam. The judgment is affirmed.

12489154

Shawn ROBINSON v. COMMISSIONER OF CORRECTION

Robinson v. Comm'r of Corr.

2016-12-13

No. 38170

329

329

155 A.3d 329

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Shawn ROBINSON v. COMMISSIONER OF CORRECTION

Shawn ROBINSON v. COMMISSIONER OF CORRECTION No. 38170 Appellate Court of Connecticut. Argued November 16, 2016 Officially released December 13, 2016

27

188

Per Curiam. The judgment is affirmed.

12489153

STATE of Connecticut v. Alexander BARBER

State v. Barber

2016-12-13

No. 38329

328

328

155 A.3d 328

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

STATE of Connecticut v. Alexander BARBER

STATE of Connecticut v. Alexander BARBER No. 38329 Appellate Court of Connecticut. Argued November 14, 2016 Officially released December 13, 2016

38

242

Per Curiam. The judgment is affirmed. See State v. Bryant , 202 Conn. 676, 523 A.2d 451 (1987).

12489148

Adelson Luiz DECASTRO, Administrator (Estate of Jose Luiz Decastro), et al. v. ODETAH CAMPING RESORT, INC.

Decastro v. Odetah Camping Resort, Inc.

2017-02-07

AC 38370

305

314

155 A.3d 305

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Adelson Luiz DECASTRO, Administrator (Estate of Jose Luiz Decastro), et al. v. ODETAH CAMPING RESORT, INC.

Adelson Luiz DECASTRO, Administrator (Estate of Jose Luiz Decastro), et al. v. ODETAH CAMPING RESORT, INC. AC 38370 Appellate Court of Connecticut. Argued November 17, 2016 Officially Released February 7, 2017 Andrew J. Pianka, for the appellant (named plaintiff). Mark R. Cramer, for the appellee (defendant). DiPentima, C. J., and Keller and Bear, Js.

4617

28721

BEAR, J. In this wrongful death action, the plaintiff, Adelson Luiz DeCastro, the administrator of the estate of Jose Luiz DeCastro (decedent), appeals from the judgment rendered by the trial court in accordance with its decision granting a motion for judgment notwithstanding the verdict filed by the defendant, Odetah Camping Resort, Inc. The decedent drowned while swimming in a lake abutting the defendant's resort. On appeal, the plaintiff claims that the trial court erred in (1) applying the wrong legal standard for proximate cause; and (2) rendering judgment notwithstanding the verdict when the jury reasonably could have concluded that the defendant's negligence was a proximate cause of the plaintiff's injuries. We disagree and affirm the judgment of the court. On April 12, 2012, the plaintiff commenced this wrongful death action against the defendant and claimed in his operative complaint that the defendant was negligent in (1) failing to provide lifeguards at its swimming area, and (2) that the defendant knew or should have known of the dangers associated with encouraging guests to swim to its two large recreational flotation devices located outside of the designated swimming area, yet failed to take reasonable steps to secure their safety in doing so. The jury returned a verdict in favor of the defendant on the first ground and in favor of the plaintiff on the second ground; the court accepted that verdict. Following the defendant's motion for judgment notwithstanding the verdict, the court granted the motion, rendering judgment for the defendant on the second ground because it found that the plaintiff had failed to provide evidence that the negligence of the defendant proximately caused the death of the decedent. This appeal followed. In its memorandum of decision on the defendant's motion for judgment notwithstanding the verdict, the trial court reasoned that the jury could have found as follows. "On July 7, 2011, the decedent and a group of friends went to the defendant resort located in Bozrah . In order to gain entrance, the decedent paid an entrance fee. The defendant is an approximately 100 acre campground that offers multiple recreational activities. In addition to facilities to accommodate overnight camping, the defendant offers sporting facilities, which include a pool as well as volleyball, tennis, and basketball courts. The defendant abuts a large, thirty-two acre freshwater lake, which includes a small beach, and offers swimming and boating activities. A portion of the lake that is adjacent to the beach has a designated swim area. The boundaries of the swim area are designated by a rope line and buoys. Just beyond the roped-off swimming area are two inflatable platforms. One was described as a platform or trampoline, and the other was described as an 'iceberg.' Both inflatable devices were attractions to be used by the resort guests. The defendant did not provide lifeguards at the pool or lake swim area. A single sign was posted at one end of the beach area, indicating: 'No Lifeguard on Duty. Swim at Your Own Risk.' No employees of the defendant directly supervised the lake swimming area. "On July 9, 2011, the decedent and his friend, Saulo [De] Sousa, entered the designated swimming area for the purpose of swimming out to the trampoline just beyond the buoy line. When [De] Sousa reached the rope line, he observed the decedent immediately behind him in the water. The depth of the water at this location was approximately six feet. As [De] Sousa lifted the rope line to duck under it, he observed the decedent diving forward and under the rope. When [De] Sousa reached the trampoline, he climbed on it, but did not observe the decedent. After spending a few minutes on the trampoline, [De] Sousa reentered the water and swam to the shore. After unsuccessfully attempting to locate the decedent, employees of the defendant were notified that he was missing. After a brief search, 911 emergency services were dispatched, and Bozrah firefighters and rescue personnel responded to the scene. When notified that the decedent was last seen in the designated swim area near the buoy line, Firefighter Colin Laffey entered the water and located the decedent floating unresponsive just below the surface of the water just inside the buoy line. Laffey testified that he located the decedent in an area where the depth of the water was less than six feet. The decedent was brought to shore, and [cardiopulmonary resuscitation ] was administered. The decedent was then transported by ambulance to Backus Hospital, but never regained consciousness and was pronounced dead. A postmortem autopsy determined the cause of death to be asphyxia due to submersion. The postmortem examination was negative for any signs of illness, traumatic injury, or any preexisting medical condition or disease. A toxicology examination was negative for the presence of any drugs, alcohol, or medication. "The decedent's drowning was unwitnessed despite the fact that there were numerous people in the water and on the beach. Although other members of the decedent's group . were on the beach adjacent to the swimming area, no one saw him in distress or struggling in the water. He was identified by his friends as a good or strong swimmer." On April 12, 2012, the plaintiff initiated the present wrongful death action against the defendant. The plaintiff filed a request to amend, and second amended complaint, dated May 4, 2015, and the court granted the request without objection on May 5, 2015. That amended complaint reduced the plaintiff's claims to that the defendant was negligent (1) in failing to provide lifeguards at the lake swimming area, and (2) in that the defendant knew or should have known of the dangers associated with encouraging guests to swim to its recreational flotation devices, yet failed to take reasonable steps to secure their safety in doing so. At trial, the defendant moved for a directed verdict at the close of the plaintiff's presentation of his case, arguing that the plaintiff had failed to present a prima facie case of negligence on either claim by failing to provide evidence of a duty to the decedent, or that the defendant's actions were the cause in fact or a proximate cause of the decedent's death. The court reserved judgment on the motion. After the trial concluded, the jury returned a verdict in favor of the defendant on the first claim and for the plaintiff on the second claim. The jury awarded $229,155.96 in total economic and noneconomic damages but found the decedent 49 percent liable and the defendant 51 percent liable. On May 6, 2015, the court issued an order accepting the jury's verdict. The defendant then moved to set aside the verdict and for judgment notwithstanding the verdict on the ground that the evidence introduced at trial was insufficient to support any finding of negligence by the defendant that caused in fact or was a proximate cause of the decedent's drowning. Additionally, the defendant argued that the plaintiff failed to prove that it had any duty to require the decedent to wear a life jacket when he was swimming in the lake. On September 2, 2015, the court granted the defendant's motion for judgment notwithstanding the verdict, concluding that the plaintiff had failed to provide any evidence that the defendant's conduct caused or was a substantial factor in causing the decedent's death and, thus, the plaintiff had failed to establish that the negligent conduct of the defendant was a proximate cause of the decedent's death. This appeal followed. I The plaintiff claims first that the court applied the wrong legal standard to his negligence claims. Specifically, the plaintiff argues that the court erred in requiring him to prove that the negligent conduct of the defendant was the proximate cause of the decedent's drowning. The defendant argues that the plaintiff artificially isolates a single word in the final sentence of the court's memorandum of decision to support his claim that the court applied the wrong legal standard. We agree with the defendant. "It is well established that [t]he . determination of the proper legal standard in any given case is a question of law subject to our plenary review." (Internal quotation marks omitted.) Mirjavadi v. Vakilzadeh , 310 Conn. 176, 183, 74 A.3d 1278 (2013). Quoting our Supreme Court, the trial court provided: "After the plaintiff establishes that the defendant did not exercise reasonable care, the plaintiff has the burden of proving that the defendant's negligence caused the plaintiff's injuries. To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor's conduct. . The plaintiff then must show proximate cause. . Proximate cause requires that the defendant's conduct [was] a substantial factor in bringing about the plaintiff's injuries and that there was an unbroken sequence of events that tied [the plaintiff's] injuries to the [defendant's conduct]. . Proximate cause does not require the plaintiff to remove from the realm of possibility all other potential causes of the accident . Instead, the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident. . The more likely than not standard ensures that the causal connection . [is] based [on] more than conjecture or surmise." (Emphasis added; internal quotation marks omitted.) After reviewing the evidence and other applicable law, the trial court concluded: "Viewing the evidence in the light most favorable to the plaintiff, based on the evidence presented by the plaintiff, no reasonable juror could find that the negligence of the defendant caused or was a substantial factor in causing the decedent's death by drowning." It is clear, after reading the entirety of the court's memorandum of decision, that the court set forth and applied the proper standard for proximate cause in negligence claims: a proximate cause of the accident. See, e.g., Mirjavadi v. Vakilzadeh , supra, 310 Conn. at 192, 74 A.3d 1278. The court also clearly recognized that the plaintiff's required proof of causation included demonstrating by a fair preponderance of the evidence that the conduct, including any omissions, of the defendant caused, or was a substantial factor in causing, the decedent's death by drowning. See, e.g., Stuart v. Freiberg , 316 Conn. 809, 833, 116 A.3d 1195 (2015) (stating proximate causation requires courts to determine whether defendant's conduct was substantial factor in bringing about plaintiff's injuries); Palkimas v. Fernandez , 159 Conn.App. 129, 134, 122 A.3d 704 (2015) (same). The court properly recognized that the defendant's alleged negligence had to be a , rather than the , substantial factor in causing the decedent's death. II The plaintiff next claims that the court erred in rendering judgment notwithstanding the verdict when the jury reasonably could have concluded that the defendant's failure to take reasonable steps to secure the decedent's safety when he swam out to either of the two recreational flotation devices, the trampoline or the iceberg, was a substantial factor in causing the decedent's death. Specifically, the plaintiff argues that life jackets should have been required for anyone swimming out to those attractions, and had the decedent been wearing a life jacket, he would not have drowned. Additionally, he argues, citing cases involving unwitnessed deaths after falling, that our courts allow an inference of causation where logical and reasonable inferences can be drawn from circumstantial evidence. The defendant counters that there are no logical and reasonable inferences that can be drawn from the facts presented at trial that are strong enough to support an inference of causation in connection with this unwitnessed and unexplained drowning. The following principles govern our analysis of the plaintiff's claims on appeal. "We have stated that directed verdicts are disfavored because [l]itigants havea constitutional right to have factual issues resolved by the jury. . Accordingly, [o]ur review of a trial court's [decision] to direct a verdict or to render a judgment notwithstanding the verdict takes place within carefully defined parameters. . [I]n reviewing the trial court's decision to render judgment notwithstanding the verdict, we may affirm that decision only if we find that the jury could not reasonably and legally have reached [its] conclusion. . The question is not whether we would have arrived at the same verdict, but whether, when viewed in the light most favorable to sustaining the verdict, the evidence supports the jury's determination. . A trial court may only grant a motion for judgment notwithstanding the verdict if the jury reasonably and legally could not have reached any other conclusion . and must deny such a motion where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion. . We review a trial court's decision on a motion for judgment notwithstanding the verdict for abuse of discretion." (Citations omitted; emphasis in original; internal quotation marks omitted.) Landmark Investment Group, LLC v. CALCO Construction & Development Co. , 318 Conn. 847, 862-63, 124 A.3d 847 (2015). "A cause of action in negligence is comprised of four elements: duty; breach of that duty; causation; and actual injury." Ruiz v. Victory Properties, LLC , 315 Conn. 320, 328, 107 A.3d 381 (2015). Causation is comprised of two components. "With respect to the first component, causation in fact, we ask whether the injury would have occurred but for the actor's conduct. . The second component of causation is proximate cause. . Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of theiractions." (Citation omitted; internal quotation marks omitted.) Id., at 329, 107 A.3d 381. "In Connecticut, the test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries." (Internal quotation marks omitted.) Wu v. Fairfield , 204 Conn. 435, 438, 528 A.2d 364 (1987). "The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection." (Internal quotation marks omitted.) Winn v. Posades , 281 Conn. 50, 56-57, 913 A.2d 407 (2007). "Although the elements of a cause of action may be established on the basis of inferences drawn from circumstantial evidence . such inferences must be reasonable and logical, and the conclusions based on them must not be the result of speculation and conjecture. . An inference must have some definite basis in the facts." (Citations omitted; internal quotation marks omitted.) Boehm v. Kish , 201 Conn. 385, 389, 517 A.2d 624 (1986). The record reveals the following additional testimony with respect to the decedent's death. At trial, the plaintiff presented the testimony of Gerald Dworkin, an expert in aquatic safety and rescue. Dworkin testified as to the bodily process and physical manifestations exhibited when an individual is drowning. Specifically, he testified that when an individual is drowning, "the victim will struggle for twenty to sixty seconds and during that period of time they're using up a lot more air than they're taking in and many experience what's referred to as a laryngospasm, and it's a reflex spasm of the airway when water goes down and triggers the spasm. So, as a result, they're not getting any air, they're struggling, therefore, they're using up a lot more oxygen than they're taking in. And they become what's referred to as hypoxic, it's a lack of oxygen getting into the brain. So as a result of the hypoxia the person's rendered unconscious and, unless they're wearing a life jacket, they will then typically be face down at or just below the surface of the water and, because their face is in the water, they're now in respiratory arrest. . "[T]he elements of the drowning process start with the struggle, the laryngospasm occurs, a hypoxic [state] occurs, the victim is in respiratory arrest and several minutes later the victim deteriorates into cardiac arrest. That laryngospasm at some point will relax involuntarily, at which point the victim then involuntarily gasps or inhales and if the victim's face is in the water or under the water at the time then the-now they aspirate the water into their lungs and, if it's chlorinated water or polluted water or salt water, that wreaks havoc on the lining of the lungs as well, deteriorating the victim even more so." Dworkin also testified that certain conditions in the water and at the beach, lack of equipment, lack of procedures, and other factors increased the risks of injury to the defendant's guests. Lacking from Dworkin's testimony, from any other witness' testimony, or from any other evidence, is evidence of what caused the decedent to drown. The plaintiff concedes that there is no evidence of what caused the decedent to remain submerged, and then drown, but argues that if the decedent had been wearing a life jacket, his head would have been held above water, and he would not have drowned. He asserts that it is common knowledge that life jackets hold a person's head and face above water. Dworkin testified that there are five different classifications of personal flotation devices, which include life jackets. The plaintiff did not present expert evidence, however, regarding the ability of a personal flotation device to prevent the drowning of the decedent; nor could he, because there was no evidence of what caused the decedent to drown from which Dworkin could frame his expert opinion. There, thus, was not evidence sufficient for the jury to determine the issue of whether the decedent would have had a materially better chance of survival if he had been wearing a life jacket, and, therefore, that the defendant's failure to provide the decedent with a life jacket was a substantial factor in causing the drowning death of the decedent. The lack of any evidence explaining why the decedent drowned distinguishes the present case from those cited by the plaintiff, in which our courts have concluded that the circumstantial evidence presented at trial permitted a finding that causation had been proven. In each of the cases cited by the plaintiff, sufficient circumstantial evidence of relevant defects, if believed by the jury, established by a fair preponderance of the evidence that the alleged defect or defects caused the victim's fall. See Blados v. Blados , 151 Conn. 391, 393-94, 397, 198 A.2d 213 (1964) ; Facey v. Merkle , 146 Conn. 129, 131-32, 135, 148 A.2d 261 (1959) ; Dickson v. Yale University , 141 Conn. 250, 252-55, 105 A.2d 463 (1954) ; White v. Herbst , 128 Conn. 659, 660-61, 25 A.2d 68 (1942) ; Hall v. Winfrey , 27 Conn.App. 154, 155-57, 161, 604 A.2d 1334, cert. denied, 222 Conn. 903, 606 A.2d 1327 (1992). In the present case, the plaintiff argues that life jackets should have been required for anyone swimming out to the attractions, and had the decedent been wearing a life jacket, he would not have drowned. The plaintiff, however, did not, nor could he, offer any relevant or material evidence at trial that the alleged lack of the availability of a life jacket was a direct cause of the decedent's death, because there was no evidence of what caused the decedent to drown. The decedent's drowning was both unwitnessed and unexplained, even after the autopsy. This case is more akin to Wu v. Fairfield , supra, 204 Conn. at 435, 528 A.2d 364, which also involved an unwitnessed and unexplained drowning. In Wu, the plaintiff administrator of the decedent's estate alleged, inter alia, that the defendants, the town and several of its employees, were negligent in the performance of their duties. Id., at 436, 528 A.2d 364. The jury returned a verdict for the defendants, and the trial court denied a motion to set aside the verdict as to the defendant lifeguards. Id. On the day of the accident, the lifeguards observed the decedent as a poor swimmer and twice that day warned her to remain in the shallow area of the lake after she had ventured into the deeper, roped-off swimming area. Id., at 437, 528 A.2d 364. The last time the lifeguards saw the decedent, she was standing just inside the shallow area in waist deep water. Id. A short time thereafter an approaching storm prompted the lifeguards to clear the swimmers from the water. Id. After the decedent did not appear on shore, the lifeguards searched the water and found her body near the base of an underwater slope beyond the shallow water buoy line but within the permitted swimming area. Id., at 437-38, 528 A.2d 364. It had been fifteen to thirty minutes since the lifeguards last saw her. Id., at 438, 528 A.2d 364. The plaintiff did not present any evidence other than that the decedent perished in an unwitnessed drowning. Id., 440, at 528 A.2d 364. The court held that the plaintiff, therefore, had failed to establish proximate cause. Id., at 440-41, 528 A.2d 364. In the present case, the decedent's drowning also was unwitnessed and unexplained, and the autopsy performed on the decedent revealed nothing more than that his cause of death was asphyxia due to submersion, i.e., drowning. The plaintiff could not offer any relevant or material evidence that the defendant's alleged failure to provide a life jacket, or the decedent's lack of a life jacket, was a cause in fact or a proximate cause of the decedent's death, because there was no evidence of what caused the decedent to drown. Accordingly, the trial court did not abuse its discretion when it granted the defendant's motion for judgment notwithstanding the verdict and rendered judgment thereon. The judgment is affirmed. In this opinion the other judges concurred. The original complaint named as plaintiffs Adelson Luiz DeCastro, in his capacity as the administrator of the decedent's estate, and Dulcineide DaSilva Rocha, asserting an additional claim for loss of consortium. Subsequently, the loss of consortium claim was withdrawn and, therefore, in this opinion we refer to Adelson Luiz DeCastro, in his capacity as administrator, as the plaintiff. In its memorandum of decision, as set forth previously, the court quoted the following language from Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 776-77, 83 A.3d 576 (2014) : "Proximate cause requires that the defendant's conduct [was] a substantial factor in bringing about the plaintiff's injuries . Instead, the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident." (Citations omitted; emphasis omitted; internal quotation marks omitted.) The court thus specifically referred to "a proximate cause" instead of "the proximate cause." "The general rule that a judgment, rendered by a court with jurisdiction, is presumed to be valid and not clearly erroneous until so demonstrated raises a presumption that the rendering court acted only after due consideration, in conformity with the law and in accordance with its duty. . It is important to recognize that a claim of error cannot be predicated on an assumption that the trial court acted incorrectly. . Rather, we are entitled to assume, unless it appears to the contrary, that the trial court . acted properly, including considering the applicable legal principles." (Citations omitted; internal quotation marks omitted.) Johnson v. D e Toledo, 61 Conn.App. 156, 161-62, 763 A.2d 28 (2000), appeal dismissed, 258 Conn. 732, 785 A.2d 192 (2001). As previously set forth, the court found that "[a] portion of the lake that is adjacent to the beach has a designated swim area. The boundaries of the swim area are designated by a rope line and buoys. Just beyond the roped-off swimming area are two inflatable platforms. One was described as a platform or trampoline, and the other was described as an 'iceberg.' . [T]he decedent and his friend, Saulo [De] Sousa, entered the designated swimming area for the purpose of swimming out to the trampoline just beyond the buoy line." We thus consider, insofar as it is relevant, only the defendant's efforts to swim out to the trampoline. The court did not make any determination as to whether the defendant had a duty to require or provide life jackets to swimmers, including the decedent, or whether there was evidence sufficient to make such a determination. We assume, however, solely for the purpose of analyzing the plaintiff's argument, that the defendant had a duty to provide a life jacket for the decedent's safety, before he swam out to either of the floating attractions, and we also assume, solely for the purpose of analyzing the plaintiff's argument, that the defendant breached that duty, and we instead review whether there was sufficient evidence for the jury to conclude that the breach of such a duty was a substantial factor in causing the decedent's death. The plaintiff clarified at oral argument before this court that these increased risk factors, which included lack of depth markers, inadequate signage, and lack of rescue equipment, were meant only to illustrate risks posed that required that the defendant mandate and provide life jackets. These factors address the duty owed to the decedent, which is not before this court on appeal. In other negligence cases, our Supreme Court has concluded that the evidence was insufficient to support a plaintiff's verdict because the plaintiff failed to remove from the realm of conjecture, guesswork, or speculation the issues of fault or proximate cause. See, e.g., Winn v. Posades, supra, 281 Conn. at 59-60, 913 A.2d 407 (plaintiff failed to establish that conduct was proximate cause when "a number of factual possibilities . could explain how the accident occurred"); Boehm v. Kish, supra, 201 Conn. at 393, 517 A.2d 624 (holding plaintiff provided no basis in facts to conclude that accident caused by intoxication to prove dram shop liability); Meade v. Warehouse Transport, Inc., 165 Conn. 553, 555-56, 338 A.2d 111 (1973) (holding that many possible proximate causes and lack of facts pointing significantly to any one of them as due to negligence of tractor trailer operator rendered plaintiffs' negligence claim too conjectural); see also Toomey v. Danaher, 161 Conn. 204, 212, 286 A.2d 293 (1971) ; Chasse v. Albert, 147 Conn. 680, 683, 166 A.2d 148 (1960) ; Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750 (1959). The Supreme Court, in Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 788, 83 A.3d 576 (2014), referred to the plaintiffs' failure to present evidence sufficient to prove causation in Winn, Chasse, and Palmieri : "In Palmieri and Winn, none of the drivers or occupants could testify about the collisions or provide any information about how they had occurred. . In Chasse, although there was an eyewitness, that eyewitness could corroborate only that a collision had occurred and did not provide additional information about negligence or causation. . Thus, in Palmieri, Chasse, and Winn, there was no evidence to causally connect the conduct of the allegedly negligent driver with the collision and subsequent damage and injuries." (Citations omitted.) This court also has similarly determined that the evidence submitted to the trier of fact was insufficient to prove proximate cause. See, e.g., Escourse v. 100 Taylor Avenue, LLC., 150 Conn.App. 819, 830-31, 92 A.3d 1025 (2014) (evaluating sufficiency of evidence for proximate cause, court held evidence insufficient to create genuine issue of material fact that defendant or one of his agents plowed snow onto sidewalk blocking passage such that plaintiff was forced to walk in street leading to her injuries in hit and run); Schweiger v. Amica Mutual Ins. Co., 110 Conn.App. 736, 741-42, 955 A.2d 1241 (holding plaintiff failed to provide evidence that defendant's negligence proximately caused unexplained rear-end collision), cert. denied, 289 Conn. 955, 961 A.2d 421 (2008).

12489146

STATE of Connecticut v. Jeffrey T. CONNOR

State v. Connor

2017-02-07

AC 34970

289

298

155 A.3d 289

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

STATE of Connecticut v. Jeffrey T. CONNOR

STATE of Connecticut v. Jeffrey T. CONNOR AC 34970 Appellate Court of Connecticut. Argued October 17, 2016 Officially released February 7, 2017 Mary Boehlert, assigned counsel, for the appellant (defendant). Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Gail P. Hardy and Anne Mahoney, state's attorneys, and Denise B. Smoker, senior assistant state's attorney, for the appellee (state). Sheldon, Mullins and Bear, Js.

4605

29431

MULLINS, J. This case returns to us following a remand by our Supreme Court. On remand, our Supreme Court has directed us to consider whether the trial court improperly determined that the defendant, Jeffrey T. Connor, was competent to represent himself at his criminal trial. State v. Connor , 321 Conn. 350, 375, 138 A.3d 265 (2016). Having considered that question, we conclude that the trial court did not abuse its discretion in determining that the defendant was competent to represent himself. Accordingly, we affirm the judgment of the trial court. The complicated and lengthy procedural history of this case previously was set forth by our Supreme Court in Connor II . "The defendant was charged with a number of crimes in connection with the abduction of his former wife . The extensive pretrial proceedings reflected repeated attempts by the trial court to ascertain the defendant's competency both to stand trial and to discharge his court-appointed counsel and represent himself. . The defendant's competency had been called into doubt due to the fact that he had suffered a debilitating stroke and exhibited signs of mental illness.... The efficacy of these proceedings was complicated by the defendant's refusal to cooperate with the medical professionals tasked with evaluating him and his intermittent unresponsiveness in court . In reliance on the opinion of several medical professionals, the trial court, McMahon, J. , concluded that the defendant's refusal to cooperate was volitional . and the trial court, Miano, J. , thereafter concluded that the defendant was malingering, and found him competent to stand trial.... "The defendant's case proceeded to trial before Judge Espinosa, who concluded that the defendant's unresponsiveness during jury selection reflected his continued malingering . [and] that the defendant was competent to represent himself.... Judge Espinosa therefore permitted the defendant to represent himself, but appointed his defense counsel as standby counsel . A jury [found] the defendant [guilty] on all but one of the charges against him." (Citations omitted; footnotes added; internal quotation marks omitted.) Connor II , supra, 321 Conn. at 354-56, 138 A.3d 265. The defendant directly appealed from the judgment of conviction to our Supreme Court, claiming that Judge Espinosa improperly determined that he was competent to represent himself. See State v. Connor , 292 Conn. 483, 973 A.2d 627 (2009). At the time of the defendant's trial, our law dictated that a defendant who had been found competent to stand trial necessarily also was competent to represent himself. See State v. Day , 233 Conn. 813, 825, 661 A.2d 539 (1995) ("a defendant who has been found competent to stand trial as a matter of state law also is competent to waive the right to counsel"), overruled in part by Connor I , supra, 292 Conn. at 528 n.29, 973 A.2d 627. Thus, as our Supreme Court observed in Connor I , given that the defendant had been found competent to stand trial, Judge Espinosa "had no alternative" but to permit the defendant to represent himself. Connor I , supra, at 528, 973 A.2d 627. While the defendant's direct appeal to our Supreme Court was pending, however, the United States Supreme Court clarified in Indiana v. Edwards , 554 U.S. 164, 177-78, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), that a defendant who is competent to stand trial nevertheless may lack the competency to represent himself. Connor I , supra, 292 Conn. at 525, 973 A.2d 627. Therefore, pursuant to Edwards , a state may "insist [on] representation by counsel for those competent enough to stand trial . but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." (Internal quotation marks omitted.) Id. In light of Edwards , our Supreme Court exercised its supervisory authority in Connor I to announce the following rule: "[W]hen a trial court is presented with a mentally ill or mentally incapacitated defendant who, having been found competent to stand trial, elects to represent himself, the trial court also must ascertain whether the defendant is, in fact, competent to conduct the trial proceedings without the assistance of counsel." Id., at 527-28, 973 A.2d 627. After so ruling, our Supreme Court remanded the defendant's case specifically to Judge Espinosa so that she could determine, in accordance with Edwards and Connor I , "whether the defendant then was competent, notwithstanding any mental disability, to conduct the trial proceedings by himself." Id., at 528, 973 A.2d 627. The remand proceedings began before Judge Espinosa in early 2010. Shortly thereafter, and before the proceedings concluded, Judge Espinosa was elevated to the Appellate Court. As a result, Judge Schuman assumed control of the proceedings. On May 25, 2012, Judge Schuman held an evidentiary hearing, and, on June 6, 2012, he issued a written memorandum of decision wherein he determined that the defendant had been competent to represent himself at his criminal trial. The defendant appealed from Judge Schuman's competency determination, claiming that Judge Schuman abused his discretion in concluding that the defendant had been competent to represent himself during his criminal trial. See State v. Connor , 152 Conn.App. 780, 100 A.3d 877 (2014), rev'd, 321 Conn. 350, 138 A.3d 265 (2016). This court reversed the trial court's judgment on the ground that the remand hearing held by Judge Schuman was procedurally flawed. Id., at 810, 100 A.3d 877. This court then directed the trial court to grant the defendant a new criminal trial. Id., at 817, 100 A.3d 877. The state then filed a petition for certification to appeal this court's decision. After granting certification to appeal, our Supreme Court concluded that this court erred in reversing the judgment rendered by Judge Schuman and in ordering a new trial because this court had raised, sua sponte, a ground not argued by the parties, namely, the procedural inadequacy of the remand hearing. Connor II , supra, 321 Conn. at 354, 138 A.3d 265. Accordingly, our Supreme Court remanded the case back to this court with direction to consider the defendant's claim that "the trial court abused its discretion when it erroneously concluded that the [defendant] was competent to represent himself at [his criminal] trial despite his mental illness or mental incapacity." (Internal quotation marks omitted.) Id., at 364, 138 A.3d 265 ; see also id., at 375, 138 A.3d 265. We first set forth our standard of review. Our Supreme Court has not indicated what standard of review applies to a determination that a defendant is competent to represent himself where such a determination is made after the defendant already has been found competent to stand trial. The parties argue that in these circumstances we should review the trial court's determination that the defendant had been competent to represent himself during his criminal trial for an abuse of discretion. We agree with the parties and, therefore, review the trial court's competency determination for an abuse of discretion. Cf. Connor I , supra, 292 Conn. at 510, 973 A.2d 627 ("we will not overturn the trial court's determination with respect to whether the defendant knowingly and voluntarily elected to represent himself in the absence of an abuse of discretion"); State v. Cuesta , 68 Conn.App. 470, 480, 791 A.2d 686 (reviewing trial court's determination that defendant was competent to stand trial for an abuse of discretion), cert. denied, 260 Conn. 914, 796 A.2d 559 (2002). "In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done." (Internal quotation marks omitted.) State v. Williams , 146 Conn.App. 114, 150-51, 75 A.3d 668 (2013), aff'd, 317 Conn. 691, 119 A.3d 1194 (2015). "In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors." (Internal quotation marks omitted.) State v. Hamlett , 105 Conn.App. 862, 873, 939 A.2d 1256, cert. denied, 287 Conn. 901, 947 A.2d 343 (2008). "Our review of a trial court's exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did." (Internal quotation marks omitted.) State v. Kendall , 123 Conn.App. 625, 651, 2 A.3d 990, cert. denied, 299 Conn. 902, 10 A.3d 521 (2010). We next review the instructions and guidance that our Supreme Court had provided in Connor I . Our Supreme Court explained: "[T]he issue to be decided on remand is not whether the defendant lacked the technical legal skill or knowledge to conduct the trial proceedings effectively without counsel. Indeed it appears quite clear that he did lack such skill or knowledge." Connor I , supra, 292 Conn. at 529-30, 973 A.2d 627. "Rather, the determination of his competence or lack thereof must be predicated solely on his ability to carry out the basic tasks needed to present his own defense without the help of counsel . notwithstanding any mental incapacity or impairment serious enough to call that ability into question." (Citation omitted; emphasis added.) Id., at 530, 973 A.2d 627. The United States Supreme Court has stated the "basic tasks needed to present [one's] own defense" include "organiz[ing] [a] defense, making motions, arguing points of law, participating in voir dire, questioning witnesses, and addressing the court and jury." (Emphasis omitted.) Indiana v. Edwards , supra, 554 U.S. at 176, 128 S.Ct. 2379. In determining whether the defendant was able to carry out the aforementioned basic defense tasks, our Supreme Court further explained that the trial court on remand "should consider any and all relevant information," including (1) "the extent to which the defendant's competence to represent himself may have been affected by mental illness, by the stroke that he had suffered, and by any memory problems"; Connor I , supra, 292 Conn. at 529, 973 A.2d 627 ; (2) "the extent to which the defendant may have been feigning mental problems"; id. ; (3) "the manner in which the defendant conducted the trial proceedings"; id., at 530, 973 A.2d 627 ; (4) "whether [the defendant] grasped the issues pertinent to those proceedings"; id. ; and (5) "[the defendant's] ability to communicate coherently with the court and the jury." Id. With this background in mind, we now turn to the proceedings that took place at the trial court following Connor I . In February, 2010, Judge Espinosa, as directed by our Supreme Court in its remand order in Connor I , began the proceedings to determine whether the defendant had been competent to represent himself during his criminal trial. Judge Espinosa presided over two hearings. At the first hearing, the defendant "exhibit[ed] the same behavior" that he had exhibited at trial by sitting silently in his wheelchair and being unresponsive. At the second hearing, the defendant informed Judge Espinosa that he would not participate in the remand proceedings, and he was uncooperative in assisting Judge Espinosa in determining whether she should appoint counsel for him. Before Judge Espinosa conducted further proceedings, however, she was elevated to the Appellate Court. Following Judge Espinosa's elevation to the Appellate Court, Judge Schuman assumed responsibility for the proceedings to determine whether the defendant had been competent to represent himself during his criminal trial. At a February, 2012 hearing before Judge Schuman, the defendant again was unresponsive, and Judge Schuman appointed counsel for the defendant. Finally, on May 25, 2012, Judge Schuman conducted an evidentiary hearing on the merits of the defendant's claim. At that hearing, Judge Schuman was presented with "three categories" of evidence: (1) the trial transcripts, (2) "medical evidence," and (3) an affidavit executed by Judge Espinosa dated January 13, 2012. On the basis of those three categories of evidence, Judge Schuman concluded that the defendant was competent to represent himself during his criminal trial. First, with respect to the trial transcripts, Judge Schuman concluded that they revealed "the manner in which the defendant conducted the trial proceedings"; Connor I , supra, 292 Conn. at 530, 973 A.2d 627 ; how "[the defendant] grasped the issues pertinent to those proceedings"; id. ; and "[the defendant's] ability to communicate coherently with the court and the jury." Id. In particular, Judge Schuman cited the defendant's questioning of venirepersons, his effective use of peremptory challenges, his "short but adequate" cross-examinations of the complainant and eyewitnesses, and his presentation of a closing argument that contained "a reasonably appropriate discussion of the evidence." Judge Schuman also carefully highlighted instances during the criminal trial in which the defendant's tactics were improper or ineffective. For example, during jury selection, the defendant purported to quote the Bible and asked philosophical questions that were confusing and irrelevant. Moreover, during the state's case, the defendant inadvertently incriminated himself during his cross-examination of the state's witnesses and attempted to admit his criminal record and a police report that implicated him as the perpetrator of the crime. Judge Schuman also found that the defendant experienced difficulty in presenting the defense's theory, asking the sole defense witness proper questions, and making an appropriate closing argument that did not refer to irrelevant and improper matters. Additionally, Judge Schuman observed that the defendant generally struggled throughout the trial with comprehending legal concepts such as admissibility, prejudice, exhibits, hearsay, and circumstantial evidence. Regarding the second category of evidence, the medical records offered by the defendant, Judge Schuman concluded that they were not probative of the defendant's ability to represent himself at his criminal trial. The medical records consisted principally of seven volumes of Department of Correction health charts relating to periods of incarceration that the defendant had served between the years of 1991 and 2010. Although the charts themselves appear largely indecipherable to the layperson, Judge Schuman concluded that "both before and after the criminal trial, healthcare professionals diagnosed the defendant with having various psychiatric or psychological diseases or disorders." (Emphasis added.) In its final analysis, however, the court afforded no weight to the medical records. Last, Judge Schuman reviewed Judge Espinosa's affidavit, wherein she attested to the following: (1) "The defendant appeared to be engaged in every aspect of the trial proceedings"; (2) "The defendant demonstrated an understanding of the evidence presented by the state and what was occurring during each distinct phase of the trial"; (3) "At times, the defendant made statements concerning irrelevant matters . [that] were a calculated attempt on the part of the defendant to elicit sympathy and, thus, persuade the court or the jury to find in his favor"; (4) "[T]he defendant demonstrated the ability to communicate appropriately and coherently with the court"; (5) "[The defendant] demonstrated the ability to address the jury in an appropriate and coherent manner"; (6) "At no point during the proceedings did the defendant exhibit the effects of a mental incapacity or impairment such that I questioned whether he possessed the mental ability to conduct the trial proceedings without the assistance of counsel"; (7) "[T]he defendant carried out the basic tasks needed to present his own defense in a manner similar to other self-represented defendants who appeared before me"; and (8) "Although the defendant did not conduct the trial proceedings with the technical skill or knowledge of an attorney, he demonstrated that he was sufficiently capable of carrying out the basic tasks needed to present his own defense without the assistance of counsel." Judge Schuman afforded "considerable deference" to Judge Espinosa's affidavit. Indeed, Judge Schuman determined that the defendant had been competent to represent himself during his criminal trial "based largely on Judge Espinosa's firsthand assessment of the defendant's performance" during that time. Judge Schuman reasoned that "the transcript is no substitute for the opportunity, which only Judge Espinosa had, to observe whether the defendant had a reasonable understanding of how the trial process worked, to assess whether his occasional unorthodoxy represented fumbling ineptitude or wilful strategy, and to measure just how well the defendant interacted with the jury." Accordingly, in determining whether the defendant had possessed the "ability to carry out the basic tasks needed to present his own defense without the help of counsel"; (internal quotation marks omitted) Connor I , supra, 292 Conn. at 530, 973 A.2d 627 ; Judge Schuman carefully considered and weighed all of the evidence that the parties presented to the court. On the basis of his review of that evidence, Judge Schuman ultimately determined that the defendant was competent to represent himself during his criminal trial. After reviewing the record in this case, we conclude that Judge Schuman did not abuse his discretion in making that determination. First, it was reasonable for Judge Schuman to conclude that the trial transcripts revealed that the defendant was able to carry out basic defense tasks. Indeed, our review of the trial transcripts discloses that the defendant was able to (1) ask venirepersons questions that potentially could have revealed whether they held a bias toward the defendant and the crimes with which he was charged, (2) elicit, during cross-examination, an inconsistency between the complainant's testimony and her statement to police regarding the location where she claimed she was abducted, (3) elicit from an eyewitness during cross-examination the fact that the witness told law enforcement that he was unsure of the perpetrator's race, (4) elicit an inconsistency between the physical description of the perpetrator that an eyewitness provided to law enforcement and the defendant's actual physical appearance, (5) present and argue a motion for judgment of acquittal, and (6) challenge the state's case during his closing argument by highlighting the lack of physical evidence and the inconsistencies in the testimony of the state's witnesses. Second, it was also reasonable for Judge Schuman to have concluded that the defendant's medical records were not helpful in determining whether the defendant could have represented himself at his criminal trial. Judge Schuman noted that none of the medical personnel who made the records was present during the 2006 criminal trial, and defense counsel acknowledged at the remand hearing that no medical records that were made at the time of the criminal trial. Moreover, even assuming that the records may have suggested that the defendant was suffering from a mental incapacity at the time of his criminal trial, the trial transcripts revealed that he "may have been feigning mental problems." Connor I , supra, 292 Conn. at 529, 973 A.2d 627. For instance, on the first day of jury selection, the defendant admitted to Judge Espinosa that he had been feigning a comatose state during the pretrial proceedings because he disliked his trial counsel and the judge who had presided over the proceedings. Ultimately, and perhaps most significantly, evidence that the defendant was suffering from a mental incapacity at the time of his criminal trial, without more, is insufficient to prove that the defendant was not competent to represent himself. See Connor I , supra, 292 Conn. at 528, 973 A.2d 627 (stating that issue before trial court on remand would be "whether the defendant then was competent, notwithstanding any mental disability, to conduct the trial proceedings by himself" [emphasis added] ). The defendant was required to demonstrate at the remand proceedings not merely that he suffered from a mental incapacity, but rather, more specifically, how that mental incapacity impacted his ability to carry out basic defense tasks. See id., at 525, 973 A.2d 627 (remanding to trial court so that it could determine "whether the defendant is entitled to a new trial because he lacked the ability, due to mental illness or incapacity, to perform the basic functions necessary for the trial of his case" [emphasis added] ). The defendant's medical evidence, however, failed to link his purported mental incapacity to an inability to carry out basic defense tasks. Therefore, Judge Schuman reasonably concluded that the defendant's medical records were unhelpful in determining whether the defendant was competent to represent himself at his criminal trial. Third, in light of the fact that our Supreme Court in Connor I contemplated expressly that Judge Espinosa would conduct the remand proceedings; Connor I , supra, 292 Conn. at 528, 973 A.2d 627 ("the case must be remanded for a determination by the court, Espinosa , J. , as to whether the defendant then was competent, notwithstanding any mental disability, to conduct the trial proceedings by himself"); it was reasonable for Judge Schuman to rely heavily on Judge Espinosa's affidavit. "[T]he trial judge is in a particularly advantageous position to observe a defendant's conduct during a trial and has a unique opportunity to assess a defendant's competency. A trial court's opinion, therefore, of the competency of a defendant is highly significant." (Internal quotation marks omitted.) Id., at 523-24, 973 A.2d 627. Indeed, the United States Supreme Court observed in Edwards that a trial judge who presides over a defendant's competency hearing and trial "will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant." Indiana v. Edwards , supra, 554 U.S. at 177, 128 S.Ct. 2379. In the present case, Judge Schuman reasonably relied on the observations and findings of Judge Espinosa, who, as the presiding judge at the defendant's criminal trial, had the unique opportunity to assess the defendant's competency. Her affidavit certainly indicates that the defendant was sufficiently capable of carrying out the basic tasks needed to present his own defense without the assistance of counsel. In particular, Judge Schuman credited Judge Espinosa's observations "that the defendant appeared to be engaged in and knowledgeable about every aspect of the trial, that the defendant demonstrated the ability to address the jury in an appropriate and coherent manner, and that the defendant's occasional reference to irrelevant matters appeared to be a calculated attempt to elicit sympathy." In the end, it is not lost upon us that Judge Schuman was "troubled" by the defendant's lack of effectiveness at certain points during the trial. Our Supreme Court stressed in Connor I , however, that "the issue to be decided on remand is not whether the defendant lacked the technical legal skill or knowledge to conduct the [criminal] trial proceedings effectively without counsel." (Emphasis added.) Connor I , supra, 292 Conn. at 529-30, 973 A.2d 627. Although the defendant certainly lacked a technical proficiency that may have otherwise rendered his self-representation more effective, his ability to perform the basic tasks necessary to self-representation was demonstrated by his participation in voir dire, his questioning of witnesses, his presentation of a motion for a judgment of acquittal and a closing argument, and his communications with the court and jury. See Indiana v. Edwards , supra, 554 U.S. at 176, 128 S.Ct. 2379. In light of the foregoing, the trial court reasonably determined, on the basis of the evidence presented to it during the remand proceedings, that the defendant had been able to carry out the basic tasks needed to present his own defense without the help of counsel during his criminal trial. Accordingly, we conclude that the trial court did not abuse its discretion in determining that the defendant had been competent to represent himself at his criminal trial. The judgment is affirmed. In this opinion the other judges concurred. Throughout this opinion, we will refer to the defendant's direct appeal to our Supreme Court, State v. Connor, 292 Conn. 483, 973 A.2d 627 (2009), as Connor I. Hereafter, we will refer to our Supreme Court's decision in State v. Connor, 321 Conn. 350, 138 A.3d 265 (2016), as Connor II. "The charges included kidnapping in the first degree, robbery in the third degree, robbery involving an occupied motor vehicle, larceny in the third degree, and stalking in the first degree." Connor II, supra, 321 Conn. at 354 n.1, 138 A.3d 265. As discussed in more detail subsequently in this opinion, at the time of the defendant's criminal trial, our law dictated that "any criminal defendant who ha[d] been found competent to stand trial, ipso facto, [wa]s competent to waive the right to counsel as a matter of federal constitutional law." State v. Day, 233 Conn. 813, 824, 661 A.2d 539 (1995) overruled in part by Connor I, 292 Conn. 483, 528 n.29, 973 A.2d 627 (2009). Accordingly, upon determining that the defendant was competent to stand trial, the trial court did not undertake any additional inquiry before concluding that he was also competent to represent himself. Id., at 825-26, 661 A.2d 539. Thus, while both the defendant's competency to stand trial and his right to represent himself were at issue, the inquiry by the trial court focused, as it had to at that time, solely on whether the defendant was competent to stand trial. For clarity, we refer to Justice Espinosa as Judge Espinosa in this opinion because, as the Supreme Court noted, this appeal involves matters that occurred before Justice Espinosa's appointment to the Supreme Court. Connor II, supra, 321 Conn. at 355 n.2, 138 A.3d 265. For instance, Judge Schuman noted that the transcript revealed that Judge Espinosa had "stopped [the defendant] from attempting to display his legs to the jury and cracking his arm for the jur[ors] [in] what [Judge Espinosa] believe[d] [was] an attempt to incur sympathy from them." Additionally, the defendant mentioned repeatedly that he had suffered a stroke. The defendant also offered the findings from a 2009 competency exam that he underwent in connection with criminal charges that are unrelated to this appeal. Considering that the 2009 exam occurred nearly three years after the trial that is the subject of this appeal, Judge Schuman reasonably could have afforded little weight to the findings therein. The findings of that exam, nevertheless, indicated that the defendant was competent to stand trial in 2009, notwithstanding his refusal to cooperate. At the remand hearing, the defendant did not call any medical experts to opine on his health and how it may have affected his ability to represent himself in 2006. Defense counsel also informed the court at the remand hearing that he was unsuccessful in retaining a mental health expert who could review the trial transcripts and offer an opinion as to the defendant's ability to represent himself. "The defendant never sought to have Judge Espinosa testify, nor did he argue that her affidavit was lacking in any way." Connor II, supra, 321 Conn. at 363, 138 A.3d 265. The defendant posed the following questions to some venirepersons: (1) "[S]o you went through a divorce . [was] it a good divorce or a bad one?"; (2) "Violence in families. Like domestic disputes . There's none in your family?"; and (3) "If [someone] broke . the law one time that doesn't necessarily mean he broke it a second time?" Defense counsel acknowledged at the remand hearing that the case was "remanded specifically to Judge Espinosa for a finding." The defendant, however, never objected to Judge Schuman conducting the hearing. Again, his precise claim on appeal is solely that based on the three categories of evidence presented at the remand hearing, Judge Schuman could not reasonably have concluded that he was competent to represent himself. Notwithstanding this concern, Judge Schuman did note that the defendant was effective in obtaining an acquittal on one of the charges, that it was "not clear what a competent attorney would have done differently" with respect to the other charges that "were [not] readily defensible," and that "the defendant's attempts to inject irrelevant matters into trial may have been calculated to gain sympathy."

12510717

Bryan JORDAN v. COMMISSIONER OF CORRECTION

Jordan v. Comm'r of Corr.

2019-06-11

AC 41750

115

121

211 A.3d 115

211

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:58:01.966564+00:00

Fastcase

Bryan JORDAN v. COMMISSIONER OF CORRECTION

Bryan JORDAN v. COMMISSIONER OF CORRECTION AC 41750 Appellate Court of Connecticut. Argued February 5, 2019 Officially released June 11, 2019 Arthur L. Ledford, special public defender, for the appellant (petitioner). Steven R. Strom, assistant attorney general, with whom, on the brief, was George Jepsen, former attorney general, for the appellee (respondent). Keller, Elgo and Harper, Js.

3010

18822

HARPER, J. The petitioner, Bryan Jordan, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus for lack of subject matter jurisdiction and for the failure to state a claim upon which habeas relief can be granted. The petitioner's sole claim on appeal is that the habeas court improperly dismissed his claim that the respondent, the Commissioner of Correction, entered into, and subsequently breached, a purported contract with the petitioner to award him risk reduction credit in exchange for his adherence to his offender accountability plan. We disagree and, accordingly, affirm the judgment of the habeas court. The following facts and procedural history are relevant to the resolution of this appeal. The petitioner was found guilty, following a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a) and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a). The charges stemmed from a shooting death that occurred on September 19, 2005. See State v. Jordan , 117 Conn. App. 160, 161, 978 A.2d 150, cert. denied, 294 Conn. 904, 982 A.2d 648 (2009). On April 27, 2007, the petitioner was sentenced to a total effective sentence of forty-five years of incarceration. The petitioner's conviction was upheld on direct appeal by this court. See id. Thereafter, the then self-represented petitioner initiated this action by filing a petition for a writ of habeas corpus. On November 6, 2017, the petitioner, after obtaining counsel, filed the operative amended petition alleging, inter alia, breach of contract. Specifically, the petitioner's breach of contract claim alleges that the respondent, by virtue of having the petitioner sign his offender accountability plan, agreed to award the petitioner five days of risk reduction credit per month in exchange for the petitioner's adherence to the offender accountability plan. Further, he alleges that, once No. 15-216 of the 2015 Public Acts (P.A. 15-216) came into effect, which rendered the petitioner unable to earn further risk reduction credit, the respondent nonetheless breached the parties' agreement by failing to award further risk reduction credit. On March 19, 2018, the court, sua sponte, dismissed the amended petition for lack of subject matter jurisdiction and failure to state a claim on which habeas relief could be granted. See Practice Book § 23-29. The court in its memorandum of decision did not address each of the petitioner's counts but, instead, broadly concluded that the court did not have subject matter jurisdiction over the petitioner's claims and that the petitioner had failed to state a claim on which habeas relief could be granted. The court subsequently granted the petition for certification to appeal, which was timely filed in this court. Additional facts will be set forth as necessary. We begin our analysis with the applicable standards of review and relevant legal principles. "Our Supreme Court has long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary.... Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time.... Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal. "With respect to the habeas court's jurisdiction, [t]he scope of relief available through a petition for habeas corpus is limited. In order to invoke the trial court's subject matter jurisdiction in a habeas action, a petitioner must allege that he is illegally confined or has been deprived of his liberty.... In other words, a petitioner must allege an interest sufficient to give rise to habeas relief.... In order to . qualify as a constitutionally protected liberty [interest] . the interest must be one that is assured either by statute, judicial decree, or regulation." (Citations omitted; internal quotation marks omitted.) Green v. Commissioner of Correction , 184 Conn. App. 76, 85, 194 A.3d 857, cert. denied, 330 Conn. 933, 195 A.3d 383 (2018). "Likewise, [w]hether a habeas court properly dismissed a petition pursuant to Practice Book § 23-29 (2), on the ground that it fails to state a claim upon which habeas corpus relief can be granted, presents a question of law over which our review is plenary." (Internal quotation marks omitted.) Perez v. Commissioner of Correction , 326 Conn. 357, 368, 163 A.3d 597 (2017). "It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action." (Internal quotation marks omitted.) Pentland v. Commissioner of Correction , 176 Conn. App. 779, 786, 169 A.3d 851, cert. denied, 327 Conn. 978, 174 A.3d 800 (2017). "In reviewing whether a petitioner states a claim for habeas relief, we accept its allegations as true." Coleman v. Commissioner of Correction , 137 Conn. App. 51, 55, 46 A.3d 1050 (2012). We next turn to a brief discussion of the relevant law pertaining to risk reduction credit. Pursuant to General Statutes (Rev. to 2011) § 18-98e, the respondent had discretion to award risk reduction credit to reduce an inmate's sentence, up to five days per month, for good conduct. Section 18-98e subsequently was amended, however, by P.A. 15-216, such that inmates convicted of certain violent crimes, including manslaughter in the first degree with a firearm, are no longer eligible to earn future risk reduction credit. Both our Supreme Court and this court have consistently held that an inmate does not have a cognizable liberty interest in earning future risk reduction credit. See Perez v. Commissioner of Correction , supra, 326 Conn. at 370-73, 163 A.3d 597 ; Rivera v. Commissioner of Correction , 186 Conn. App. 506, 514, 200 A.3d 701 (2018), cert. denied, 331 Conn. 901, 201 A.3d 402 (2019) (collecting cases). With these legal principles in mind, we now turn to the petitioner's claim. The petitioner argues that his claim that the respondent breached a contract by failing to award him risk reduction credit in exchange for adherence to his offender accountability plan implicates a cognizable liberty interest sufficient to invoke the court's subject matter jurisdiction. The petitioner does not dispute our well established jurisprudence that there is no liberty interest in risk reduction credit. See Perez v. Commissioner of Correction , supra, 326 Conn. at 370-73, 163 A.3d 597. Rather, the petitioner essentially argues that he has a contractual interest in earning risk reduction credit by virtue of his alleged agreement with the respondent to adhere to his offender accountability plan in exchange for risk reduction credit. To bolster this claim, the petitioner argues that, pursuant to Santobello v. New York , 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), his breach of contract claim is sufficient to invoke the court's subject matter jurisdiction. We do not find Santobello to be applicable in the present case. In Santobello , the defendant agreed to plead guilty to a lesser offense if the prosecutor agreed not to make a recommendation as to the length of the defendant's sentence. Id., at 258, 92 S. Ct. 495. At the time of the defendant's sentencing, a different prosecutor, who was unaware of the plea agreement, recommended the maximum sentence, which the court imposed, in violation of the agreement. Id., at 259, 92 S. Ct. 495. The court held that a prosecutor has an obligation to honor a plea agreement with a criminal defendant. Id., at 262, 92 S. Ct. 495. Central to the court's holding was the importance of plea bargaining to our judicial system and the need to ensure fairness during that phase of the judicial process. Id. ("[t]his [plea bargaining] phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances"). By contrast, in the present case, the alleged agreement between the petitioner and the respondent did not take place during the plea bargaining process, but, rather, after the petitioner had been convicted and was incarcerated. Thus, the concerns regarding fairness during the plea bargaining process are not present here as they were in Santobello . Moreover, our reading and application of Santobello in the present case is consistent with our prior holding in Green v. Commissioner of Correction , supra, 184 Conn. App. at 84, 194 A.3d 857, in which this court addressed a petitioner's claim that he entered into a binding contract with the respondent that allegedly conferred on him a contractual right to earn risk reduction credit. This court rejected the petitioner's assertion in that case that the respondent, pursuant to Santobello , was required to honor the purported contract because it found that the habeas action "present[ed] a completely different procedural posture" than the plea bargaining process. Id., at 89, 194 A.3d 857 n.7. Additionally, this court concluded that, even if the petitioner properly had alleged a breach of contract claim against the respondent, a breach of contract claim did not invoke the habeas court's subject matter jurisdiction because "the petitioner, at best, has a contractual interest in such [credit] rather than a constitutionally protected liberty interest." Id., at 91, 194 A.3d 857. The petitioner, citing to Vandever v. Commissioner of Correction , 315 Conn. 231, 106 A.3d 266 (2014), also argues that his claim raises a valid liberty interest because, if he does not comply with his offender accountability plan, he can potentially receive a disciplinary ticket and, as a result, may be segregated from the general inmate population. In Vandever , our Supreme Court recognized that "prison inmates have a protected liberty interest in avoiding certain conditions of confinement if, pursuant to state statute or regulation, they can be subjected to such conditions only if certain procedural requirements are met, and those conditions impose an atypical and significant hardship in relation to the ordinary incidents of prison life." Id., at 232-33, 106 A.3d 266. The court therefore examined whether the petitioner in that case had a liberty interest in avoiding administrative segregation and was accordingly afforded due process before his segregation. Id., at 233, 106 A.3d 266. In the present case, the petitioner has not been segregated from the general prison population and, as a result, there is no concern that he has not been afforded due process in avoiding segregation. We also find dubious the petitioner's assertion in his appellate brief that, if he had not signed the offender accountability plan, he would not be subject to the same punishment. It defies logic that the respondent would be unable to discipline an inmate for disobedience in the absence of an offender accountability plan. Accordingly, because the petitioner's claim in the present case does not give rise to a cognizable liberty interest, we conclude that the habeas court properly dismissed the petitioner's breach of contract claim for lack of subject matter jurisdiction. The judgment is affirmed. In this opinion the other judges concurred. Specifically, the petitioner was sentenced to forty years of incarceration for manslaughter with a firearm in the first degree and five years of incarceration for carrying a pistol without a permit, to be served consecutively. In a separate proceeding on a different petition for a writ of habeas corpus alleging ineffective assistance of counsel, the habeas court vacated the petitioner's manslaughter conviction and remanded the case to the trial court for a new trial, after which the respondent filed an appeal to this court. See Jordan v. Warden , Superior Court, judicial district of Tolland, Docket No. CV-15-4007011-S, 2018 WL 5115599 (October 1, 2018). This court has yet to rule on that matter. Practice Book § 23-29 provides in relevant part: "The judicial authority may, at any time, upon its own motion . dismiss the [habeas] petition, or any count thereof, if it determines that: (1) the court lacks jurisdiction; [or] (2) the petition, or count thereof, fails to state a claim upon which habeas corpus relief can be granted ." General Statutes (Supp. 2016) 18-98e (a) provides in relevant part: "Not-withstanding any provision of the general statutes, any person sentenced to a term of imprisonment for a crime committed on or after October 1, 1994, and committed to the custody of the Commissioner of Correction on or after said date, except a person sentenced for a violation of . [§] 53a-55a . may be eligible to earn risk reduction credit toward a reduction of such person's sentence, in an amount not to exceed five days per month, at the discretion of the Commissioner of Correction for conduct as provided in subsection (b) of this section occurring on or after April 1, 2006." (Emphasis added.) We also note that an additional amendment was made to § 18-98e pursuant to No. 18-155 of the 2018 Public Acts, but it is of no consequence to the matters raised in this appeal. A review of the petitioner's offender accountability plan reveals that it is a document which recommends and sets forth the expectation that an inmate should participate in various programs, services, and activities while incarcerated. The plan states that the failure to comply with the offender accountability plan "shall negatively impact your earning of [r]isk [r]eduction [e]arned [c]redit ." Furthermore, the document states above the signature line that the inmate has reviewed the recommendations made in the plan and that he or she is expected to enroll in the recommended programs. The petitioner cites to Orcutt v. Commissioner of Correction , 284 Conn. 724, 937 A.2d 656 (2007), for the proposition that our Supreme Court has recognized that habeas courts have subject matter jurisdiction over Santobello claims. Because Santobello is not applicable in the present case, however, Orcutt is inapposite. The petitioner in Green failed to identify in his operative habeas petition the contract between him and the respondent that was allegedly breached. Green v. Commissioner of Correction , supra, 184 Conn. App. at 90, 194 A.3d 857. It was not until his appeal to this court that the petitioner in that case alleged that his offender accountability plan was a binding contract between him and the respondent. Id., at 91, 194 A.3d 857. Moreover, in his appellate brief, the petitioner makes a conclusory statement that his case is analogous to Anthony A. v. Commissioner of Correction , 326 Conn. 668, 166 A.3d 614 (2017), because he will suffer negative consequences as a disciplinary problem if he does not adhere to his offender accountability plan. Our Supreme Court in Anthony A. , however, specifically addressed the stigmatizing effect of being classified as a sex offender. Id., at 681, 166 A.3d 614. The petitioner in his appellate brief fails to elaborate on why being classified as a disciplinary problem is akin to being classified as a sex offender. Accordingly, we reject his claim as inadequately briefed. "Claims are inadequately briefed when they are merely mentioned and not briefed beyond a bare assertion.... Claims are also inadequately briefed when they . consist of conclusory assertions . with no mention of relevant authority and minimal or no citations from the record ." (Internal quotation marks omitted.) Estate of Rock v. University of Connecticut , 323 Conn. 26, 33, 144 A.3d 420 (2016). Even if the court had subject matter jurisdiction over the petitioner's claim, it still properly dismissed the petitioner's petition for its failure to state a claim on which habeas relief can be granted because there was no contract formed between the petitioner and respondent. Nowhere in the offender accountability plan is there a promise made by the respondent that, in exchange for adherence to the plan, the petitioner would receive a certain amount of risk reduction credit per month. Accordingly, a contract was not formed between the parties because there was no bargained for exchange. "[C]onsideration is [t]hat which is bargained-for by the promisor and given in exchange for the promise by the promisee . Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made." (Internal quotation marks omitted.) Willamette Management Associates, Inc. v. Palczynski , 134 Conn. App. 58, 70, 38 A.3d 1212 (2012). We also note, as this court did in Green v. Commissioner of Correction , supra, 184 Conn. App. at 91-92, 194 A.3d 857, that, given the discretion that the legislature has bestowed on the respondent to issue or revoke risk reduction credit pursuant to § 18-98e, it is doubtful that the respondent has the statutory authority to enter into a contract with an inmate by which it subsequently bargains away its discretion to award risk reduction credit. "Such action would contravene the plain language of the statute and frustrate the legislature's clear intent that the [risk reduction credit] program be discretionary in nature." Id. Further, even if, arguendo, a valid contract was formed, the legislature has stripped the respondent of the authority to award future risk reduction credit to the petitioner, thus rendering the respondent's performance under the contract legally impossible. "Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the nonoccurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary." (Internal quotation marks omitted.) West Haven Sound Development Corp. v. West Haven , 201 Conn. 305, 313, 514 A.2d 734 (1986) (quoting 2 Restatement [Second], Contracts § 261 [1981] ).

12489143

STATE of Connecticut v. Marcellus CATCHINGS

State v. Catchings

2017-02-07

AC 36006

236

246

155 A.3d 236

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

STATE of Connecticut v. Marcellus CATCHINGS

STATE of Connecticut v. Marcellus CATCHINGS AC 36006 Appellate Court of Connecticut. Argued September 19, 2016 Officially released February 7, 2017 Laila Haswell, senior assistant public defender, for the appellant (defendant). Rita M. Shair, senior assistant state's attorney, with whom were Richard Colangelo, state's attorney, and, on the brief, Paul J. Ferencek, senior assistant state's attorney, for the appellee (state). Beach, Sheldon and Lavery, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

5630

33485

LAVERY, J. The defendant, Marcellus Catchings, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit assault in the first degree in violation of General Statutes § 53a-49(a)(2) and 53a-59(a)(1). On appeal, the defendant claims that there was insufficient evidence to establish beyond a reasonable doubt his intent to inflict serious physical injury on another person, as required for a conviction of attempt to commit assault in the first degree. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. In the early morning hours of March 18, 2011, Patricia Beverly was pulling into the driveway of a pool hall in Stamford when her vehicle was struck by another vehicle. Beverly exited her car to confront the other driver, but the other driver drove off. The defendant, who was friends with the driver whose vehicle had struck Beverly's vehicle, pulled into the pool hall a couple of minutes later. The defendant was heavily intoxicated, and was illegally in possession of a loaded nine millimeter semiautomatic pistol without a permit. Prior to getting out of his car, the defendant cocked his gun, not noticing that there was already a cartridge in the chamber, which caused the gun to jam and become temporarily inoperable. At some point after exiting his car, the defendant began "waving" his gun around and then aimed the gun at Beverly. Beverly retreated around the corner of the building and called 911. After learning that someone had called the police, the defendant put his gun back into his waistband and called a friend to obtain a ride before the police arrived. Officer William Garay of the Stamford Police Department responded to the scene and spotted the defendant walking down a nearby street while talking on his cell phone. Recognizing that the defendant fit the description of the person who reportedly was waving a gun, Garay exited his marked police cruiser near where the defendant was walking, shined a spotlight on the defendant, and instructed the defendant to show his hands. The defendant recognized Garay as a police officer but, because he was carrying an illegal firearm, ignored Garay's commands and continued walking. Garay drew his gun, aimed it at the defendant, and ordered him to stop and show his hands. The defendant again ignored Garay and kept walking. Garay began advancing toward the defendant with his gun drawn and shouted for the defendant to get on the ground. The defendant then broke into a run, and Garay chased after him. At some point during the chase, Officer Luis Vidal of the Stamford Police Department arrived on the scene and attempted to block the defendant's path of escape by driving his cruiser onto the sidewalk at an angle in front of where the defendant was running. Garay, who was positioned behind and to the left of the defendant, could not see the defendant's right hand as he ran, which was "somewhere in his stomach and waistband . area." Just as Vidal stopped and exited his cruiser, the defendant, while still running, suddenly removed his gun from his waistband, "turned toward his right" with the gun in his right hand, and pointed the gun directly at Garay's midsection. Garay, who was about fifteen feet away, thought that the defendant was going to shoot him, and fired a shot at the defendant that missed. As Garay fired the shot, the defendant "[a]lmost simultaneously" "dropped" his gun to the ground. Garay dropped his gun and tackled the defendant to the ground. A violent struggle ensued. The defendant pushed Garay off him and struggled to get away, ignored Garay's repeated demands to stop resisting, and evaded Garay's attempts to handcuff him by lying on his stomach and clenching his hands beneath his chest. Vidal "jumped on" the defendant to help Garay restrain him. Officer Faruk Yilmaz of the Stamford Police Department arrived moments later and noticed the defendant's handgun, which was in a jammed and temporarily inoperable condition, lying about a foot away from where the struggle was taking place. Yilmaz removed it from the area before assisting with the defendant. Eventually, the three officers subdued and arrested the defendant. The defendant was subsequently charged with multiple offenses, including attempt to commit assault in the first degree. See footnote 1 of this opinion. On March 14, 2013, the jury found the defendant guilty on all counts. The trial court thereafter rendered judgment in accordance with the verdict, and imposed a total effective sentence of fifteen years imprisonment and five years of special parole. This appeal followed. The defendant claims that there was insufficient evidence to convict him of attempt to commit assault in the first degree because no reasonable jury could have concluded beyond a reasonable doubt that he intended to inflict serious physical injury on Garay. In support of this claim, the defendant argues that "[t]he simple act of pointing a gun, without any accompanying assertive behavior that could permit an inference of specific intent to seriously injure [Garay] by shooting him, is too equivocal an act to prove intent." In response, the state contends that it introduced additional evidence, beyond the defendant's mere act of pointing the gun at Garay, to establish the defendant's intent, including the defendant's conduct prior to the encounter with Garay and the fact that the defendant raised his gun at Garay while attempting to resist arrest. We agree with the state. "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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . because this court has held that a jury's factual inferences that support a guilty verdict need only be reasonable.... "[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 trier, 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." (Citation omitted; internal quotation marks omitted.) State v. Hedge , 297 Conn. 621, 656-57, 1 A.3d 1051 (2010). Turning to the relevant statutory provisions, § 53a-49(a) provides in relevant part that "[a] person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . (2) intentionally does . anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." Section 53a-59(a) provides in relevant part that "[a] person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon...." Thus, "[i]n order to sustain a conviction for attempt to commit assault in the first degree, the state must have presented evidence from which the jury reasonably could have found beyond a reasonable doubt that the defendant did something constituting a substantial step in a course of conduct planned to culminate in his commission of the crime . namely, assault with the intent to cause serious physical injury to another person . Regarding the substantial step requirement, we have held that [a] substantial step must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime . In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute.... "Regarding the intent requirement, an individual acts intentionally with respect to a result or to conduct . when his conscious objective is to cause such result or to engage in such conduct . Intent may be, and usually is, inferred from [a] defendant's verbal or physical conduct [as well as] the surrounding circumstances.... Nonetheless, [t]here is no distinction between circumstantial and direct evidence so far as probative force is concerned.... Moreover, [i]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.... Finally, we underscore that intent [can] be formed instantaneously and [does] not require any specific period of time for thought or premeditation for its formation.... Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one." (Citations omitted; internal quotation marks omitted.) State v. Carter , 317 Conn. 845, 856-57, 120 A.3d 1229 (2015). Our resolution of the defendant's sufficiency of the evidence claim must begin with a review of Carter , in which our Supreme Court rejected a sufficiency claim premised on the argument that the mere act of pointing a gun at someone is insufficient to establish intent. Id., at 857, 120 A.3d 1229. In Carter , several uniformed police officers approached the defendant in a bar after learning that he had threatened to " 'pop this white dude.' " Id., at 848, 120 A.3d 1229. The defendant turned, removed a handgun from his pocket, and pointed it at one of the officers' midsection. Id., at 849, 120 A.3d 1229. The officer and the defendant pointed their guns at each other for a few seconds, with neither attempting to shoot, until the defendant lowered his gun and turned the other way. Id., at 850, 120 A.3d 1229. The defendant began struggling with the officers who attempted to handcuff him before eventually surrendering at gunpoint. Id. The defendant was convicted of, inter alia, attempt to commit assault in the first degree and claimed, on appeal, that there was insufficient evidence to establish his intent to inflict serious physical injury on the officer at whom he pointed his gun. Id., at 851-52, 120 A.3d 1229. In rejecting that claim, our Supreme Court relied on the fact that the defendant aimed specifically at the officer's midsection, an area of her body particularly susceptible to substantial physical injury; id., at 858, 120 A.3d 1229 ; that the defendant placed his finger on the trigger guard, "one of the last steps that an individual must take before firing a gun"; id. ; that the defendant, after aiming the gun, "positioned himself in a shooting stance" and "maintained that position for approximately five seconds despite repeated orders to drop the gun"; id. ; and that the officer was "so sure the defendant was going to shoot her" that she began to remove the safety mechanism on her own gun. Id. The court also noted that, after the officers closed in on the defendant, "he attempted to maintain possession of his gun rather than acquiesce," and that "it would not have been unreasonable [given his earlier actions] for the jury to infer that he was attempting to maintain possession of the gun to use it." Id. Finally, the court observed that, approximately one hour before the standoff, the defendant "had expressed an intention and willingness to use the gun by threatening to shoot a particular 'white dude.' " Id., at 859, 120 A.3d 1229. In addition to the factors bearing on the court's decision in Carter , this court recognized in State v. Osbourne , 138 Conn.App. 518, 530-31, 53 A.3d 284, cert. denied, 307 Conn. 937, 56 A.3d 716 (2012), that a sudden movement to procure a loaded firearm, when made in the course of an attempt to resist arrest, is especially indicative of an intent to use the firearm to shoot and cause serious physical injury to the pursuing officer. The defendant in Osbourne , after attempting to flee from police officers who approached him on the street, began violently resisting the officers' attempts to physically subdue him, prompting one of the officers to utilize his Taser gun. Id., at 522-23, 53 A.3d 284. After the second tasing cycle, the defendant quickly reached into his pocket and partially removed a loaded handgun, at which point the officers immediately intervened, removed the gun from the defendant's possession, and handcuffed him. Id., at 523, 53 A.3d 284. Rejecting the defendant's claim on appeal that there was insufficient evidence of his intent, this court concluded that "[t]he defendant's act of reaching quickly into his pocket and grabbing a cocked and loaded gun while struggling with uniformed police officers who were attempting physically and by verbal command to subdue him reasonably could have been found not only to have been the start of a line of conduct leading naturally to securing the gun and using it to shoot and cause serious physical injury to each of the three officers, but also to have been strongly corroborative of his alleged purpose to engage in such conduct and cause such results, and thus to commit assault in the first degree against each officer." Id., at 530-31, 53 A.3d 284. In the present case, on the basis of the evidence adduced at trial, the jury reasonably could have concluded that the defendant intended to shoot and cause serious physical injury to Garay. Leading up to the encounter, the defendant, who knew that the police were searching for him because he had brandished his gun at Beverly, recognized Garay to be a police officer. In order to avoid being arrested and prosecuted for carrying a firearm without a permit, the defendant ignored Garay's orders to show his hands. When Garay raised his gun and ordered the defendant to get on the ground, the defendant ran. After a brief chase, the defendant, while running full speed, abruptly removed his gun from his waistband, turned his body partially around toward Garay, and pointed his gun directly at Garay's midsection from fifteen feet away. Therefore, contrary to the defendant's contention, the evidence at trial demonstrated not only that the defendant pointed his gun at Garay, but that he did so in an abrupt and purposeful manner while engaged in a prolonged effort to resist being arrested and charged with unlawful possession of a firearm. Viewing the defendant's actions in context with these surrounding circumstances, the jury reasonably could have inferred that the defendant, in order to effectuate his escape, pointed his gun at Garay with the intent to shoot him in the midsection, "an area of [his] body that would be likely to inflict physical injury which creates a substantial risk of death ." (Internal quotation marks omitted.) State v. Carter , supra, 317 Conn. at 858, 120 A.3d 1229 ; see Godsey v. State , 719 S.W.2d 578, 583 (Tex. Crim. App. 1986) (finding sufficient evidence of intent to kill where defendant deliberately removed handgun from waistband after seeing police officers, ignored orders to drop gun, and then pointed gun directly at officers). Furthermore, Garay testified that when the defendant turned and pointed the gun at him, he fired a shot at the defendant because he thought the defendant was going to shoot him. As Garay fired, the defendant "[a]lmost simultaneously" "dropped" his gun to the ground. The defendant was tackled by Garay immediately thereafter, and although he continued to resist, he was ultimately handcuffed and subdued by the three officers. The jury reasonably could have inferred from this evidence that the defendant turned and pointed his gun at Garay with the intent to shoot him, but was interrupted from taking a further step toward that desired result by Garay, who forced the defendant to drop his weapon by firing at him. See State v. Pinnock , 220 Conn. 765, 775, 601 A.2d 521 (1992) ("[t]he attempt is complete and punishable, when an act is done with intent to commit the crime . whether the purpose fails by reason of interruption or for other extrinsic cause" [internal quotation marks omitted] ). Even if, however, the defendant relinquished his intention to shoot Garay when he dropped the gun, "that change would not negate his earlier intention, and the brevity of that intent is irrelevant." State v. Carter , supra, 317 Conn. at 858, 120 A.3d 1229. The defendant's conduct prior to the encounter with Garay further supports the jury's finding that the defendant harbored the requisite intent to shoot and cause serious physical injury to Garay. See State v. Commerford , 30 Conn.App. 26, 34, 618 A.2d 574 (intent to commit assault can be inferred from "events leading up to and immediately following the incident" [internal quotation marks omitted] ), cert. denied, 225 Conn. 903, 621 A.2d 285 (1993). The defendant admitted at trial that, prior to his confrontation with Beverly, he cocked his gun in order to load a cartridge into the chamber despite the fact that the gun was already loaded. The jury reasonably could have inferred from this evidence that the defendant wanted to ensure that the gun was ready to fire, and therefore that he possessed a willingness, if not a specific intention, to fire the gun. Although the defendant presumably did not engage in this preparatory act in anticipation of an encounter with police, it is nevertheless probative of his state of mind. See State v. Carter , supra, 317 Conn. at 859, 120 A.3d 1229 (relying in part on fact that "one hour before the defendant's standoff with [the officer], the defendant had expressed an intention and willingness to use the gun by threatening to shoot a particular '[dude],' " despite fact that threat was not directed at officer). We conclude that the evidence of this prior conduct, coupled with the circumstances surrounding the defendant's encounter with Garay, provided sufficient evidence to support a reasonable jury's finding of intent to inflict serious physical injury beyond a reasonable doubt. The defendant nevertheless argues that the evidence was insufficient to support the jury's finding of intent. Neither of his two primary arguments in this regard are availing. First, he argues that there is no evidence that he placed his finger on the trigger or fired the gun after pointing it at Garay. The absence of those facts, however, does not preclude the jury's finding of intent to inflict serious physical injury. "Although the actual firing of a gun provides strong evidence of intent, the absence of such evidence does not automatically render the evidence insufficient . As we have previously noted, [i]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt ." Internal quotation marks omitted.) Id., at 860, 120 A.3d 1229 ; see also State v. Osbourne , supra, 138 Conn.App. at 531, 53 A.3d 284 (affirming jury's finding of intent on basis of evidence that defendant partially removed gun from pocket). Those principles apply with particular force in the present case because, as previously explained, the jury reasonably could have concluded that "it was only the show of overwhelming force [by police] that persuaded the defendant to relinquish [his] intent." State v. Carter , supra, 317 Conn. at 859, 120 A.3d 1229. In any case, whether or not the defendant discharged the gun or placed his finger on the trigger misses the point. To be guilty of criminal attempt, the defendant need only take a "substantial step" in a course of conduct planned to culminate in the commission of the crime; see General Statutes § 53a-49(a)(2) ; and, in determining whether the defendant took the necessary substantial step, the focus is "on what the [defendant] has already done and not what remains to be done." (Internal quotation marks omitted.) State v. Daniel B. , 164 Conn.App. 318, 331, 137 A.3d 837, cert. granted, 323 Conn. 910, 149 A.3d 495 (2016). Because the jury reasonably could have found that the defendant engaged in the substantial step of pointing his gun at Garay; see State v. Cox , 293 Conn. 234, 246 n.9, 977 A.2d 614 (2009) ; and that he did so with the intent to inflict serious physical injury, he is guilty of attempt to commit assault in the first degree regardless of whether he subsequently placed his finger on the trigger or fired the gun. See State v. Carter , supra, 317 Conn. at 861, 120 A.3d 1229 "defendant's claim that he did not rack the gun, even if true, would only support the proposition that he did not take the next step to complete the crime, which, of course, is irrelevant to the inquiry whether he took a prior substantial step to commit the offense" [emphasis in original] ). Second, the defendant argues that he could not have formed the intent to inflict serious physical injury because, at the time of his confrontation with Garay, his gun was jammed and thus would not have fired even if he had pulled the trigger. We disagree. The attempt statute merely requires the state to prove that the defendant took a substantial step "under the circumstances as he believe[d] them to be ." General Statutes § 53a-49(a)(2). That statutory language "sweeps aside any consideration of the defense of impossibility, including the distinction between so-called factual and legal impossibility. Under [§ 53a-49(a)(2) ], the liability of the actor turns on his purpose, considered in the light of his beliefs, and not on what is actually possible under existing circumstances. If the actor attempted to pick an empty pocket of another person mistakenly thinking it contained money, he would be guilty of attempted larceny." D. Borden & L. Orland, 10 Connecticut Practice Series: Connecticut Criminal Law (2d Ed. 2007) p. 115. In view of that principle, the existence of the jam in the present case does not bear on the jury's determination that the defendant was guilty of attempt to commit assault in the first degree if the defendant believed the gun to be operable and ready to fire when he pointed it at Garay. See State v. Carter , supra, 317 Conn. at 861, 120 A.3d 1229 (fact that gun was not racked and thus incapable of firing did not negate intent element because "it [was] . entirely reasonable for [the jury] to infer that the defendant did not know that it was necessary to rack the gun" in order to fire it). Our review of the record discloses ample evidence from which the jury reasonably could have concluded that the defendant was unaware that his gun was inoperable when he raised it at Garay. First, the state presented evidence that the defendant was intoxicated around the time of the events in question; see footnote 2 of this opinion; from which the jury reasonably could have inferred that the defendant failed to notice that he had caused the gun to jam by cocking it when there was already a cartridge in the chamber. Although the defendant argues that the jam was readily apparent because it caused the barrel of the gun to protrude outward, it was not unreasonable for the jury to have concluded that, given his intoxication, the defendant failed to notice the jam. Moreover, the defendant did not mention the jam in the sworn, written statement that he provided to the police the day after his arrest. In the statement, the defendant claimed, untruthfully, that prior to confronting Beverly he "made sure that [his gun] was on safety and that there [were] no bullets in the chamber." The defendant further claimed that while running from the scene he attempted to throw his gun over an adjacent fence and, contrary to his testimony at trial, that he did not realize that a police officer was chasing him. Despite the defendant's apparent willingness to downplay certain facts to the police in order to portray himself in a more favorable light, he did not mention the fact that the gun was jammed or make any suggestion that he believed that the gun was inoperable. On the basis of this evidence, it was entirely reasonable for the jury to have discounted the defendant's testimony at trial that he was aware of the jam prior to his encounter with Garay. See State v. Gary , 273 Conn. 393, 406, 869 A.2d 1236 (2005) ("[T]he [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence . [P]roof beyond a reasonable doubt [does not] require acceptance of every hypothesis of innocence posed by the defendant ." [Internal quotation marks omitted.] ). The jury reasonably could have determined that the defendant was unaware of the jam, and therefore believed the gun to be fully operable and ready to fire when he pointed it at Garay. Accordingly, the existence of the jam does not negate the jury's finding of intent to inflict serious physical injury. The judgment is affirmed. In this opinion the other judges concurred. The defendant also was convicted of assault of a peace officer in violation of General Statutes § 53a-167c(a)(1), and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35(a). Those convictions are not at issue in this appeal. Sometime later, after the defendant was arrested, he submitted to a blood test that determined his blood alcohol content to be 0.272, a "high" alcohol content, albeit "not lethally so." At trial, the defendant, who testified in his own defense, admitted that he drank a pint of Hennessy about thirty minutes prior to the events in question. By cocking the gun while there was already a cartridge in the chamber, the defendant forced a second cartridge into the chamber which caused the jam. Although the gun could not be fired in that condition, the defendant could have fixed the jam in a matter of seconds simply by pulling back on the slide and releasing the two cartridges from the chamber. The state conceded at trial that when the defendant pointed the gun at Garay, the gun "was jammed" and "was not going to fire." The defendant, Garay, and Vidal all sustained injuries in the struggle. Immediately after the incident, the defendant was taken to Stamford Hospital for treatment where he presented with abrasions on his hand, swollen lips, and a laceration in his mouth. Garay sprained his left shoulder and sustained bruises and cuts on his right hand. Vidal sustained a contusion to his right hand. It remains an open question in Connecticut "whether the mere act of pointing a gun at someone is sufficient to establish intent to inflict serious physical injury beyond a reasonable doubt ." State v. Carter, 317 Conn. 845, 857, 120 A.3d 1229 (2015). Because, contrary to the defendant's argument, this case does not merely involve the isolated act of pointing a gun at someone, we need not resolve that issue in the present case. In Godsey v. State, supra, 719 S.W.2d at 578, a decision our Supreme Court has cited with approval; see State v. Carter, supra, 317 Conn. at 860, 120 A.3d 1229 ; the defendant, after seeing multiple uniformed officers with their guns pointed at him, deliberately removed a loaded handgun from his waistband, ignored the officers' commands to drop the gun and put his hands on his head, and pointed the gun at the officers as if he were aiming. Godsey v. State, supra, at 583. In finding that there was sufficient evidence of the defendant's intent to kill, the court observed that "[w]e are not holding that the pointing of the loaded gun, in and of itself, is sufficient. Rather, the context of the offense, the way in which the pointing came about [and] the facts and circumstances of the offense, prove the intent." Id. The court noted the specific manner in which the defendant exhibited the gun, explaining that the defendant "was not merely waving the gun around," but "deliberately pulled it out . after seeing the armed officers with their guns pointed at him" and proceeded to "point the gun in such a way that it was almost as if he were 'drawing a bead' on [two of the officers]." Id. Finally, the court relied on the evidence of the defendant's "suicide wishes," which, it reasoned, supported the inference that the defendant "could have decided to shoot the officers so that they would then shoot him." Id. After the defendant's arrest, police examined his gun and discovered his fingerprints on the magazine and his DNA on the slide. Trace evidence on the trigger, however, was insufficient for a DNA comparison. The defendant relies on State v. Dunn, 26 Conn.App. 114, 124, 598 A.2d 658 (1991), in which this court stated that "it would have been permissible to infer that the defendant did not intend to cause serious injury to [the victim] from the fact that he did not shoot [the victim] despite the opportunity and means to do so ." (Emphasis added.) Id., at 124, 598 A.2d 658. That observation, however, was made in the context of whether there was evidence of the defendant's intent to inflict an injury that was serious in nature, and is therefore inapposite in the present case, which concerns the distinct issue of whether there was evidence of the defendant's intent to shoot Garay. See State v. Carter, supra, 317 Conn. at 861-62, 120 A.3d 1229 (distinguishing Dunn ). Moreover, although it may in theory be permissible for a jury to infer a lack of intent where the defendant does not fire the gun, the jury was not required to draw that inference under the circumstances of the present case. To suggest otherwise misunderstands our standard of review for sufficiency of the evidence claims. See State v. Hedge, supra, 297 Conn. at 657, 1 A.3d 1051 ("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.] ). The entirety of the defendant's statement, which he provided to multiple officers of the Stamford Police Department after executing a written waiver of his rights, reads as follows: "My name is Marcellus D. Catchings and I'm 24 years old. My date of birth is 8/6/86. I live at 47 Hastings St, Bridgeport, CT and I have lived there for about five to six months. I'm currently unemployed. I give this voluntary sworn statement to Officer A. Gonzalez and Officer Rodriguez. "On Thursday, March 17, 2011 at about 7:30 PM I was at a basketball game at AIT, (High Ridge Road), and after the game I went to my grandmother's, (Jeanette Catchings), house at 46 Durant Street. I left my grandmothers house with Tamika Collighan who picked me up in her car and we went to [Banks] Pool Hall in the south end. We got there around eleven something. "In the parking lot of [Banks] someone gave me a drink of Vodka with juice. I then got a pint of Hennessey from [Banks] and went outside and started talking with everyone. There was about nine or more people outside. It took me about 20-30 minutes to finish the Hennessy. I saw some girls who came there and started fighting with a girl that I was talking with, (Danielle), and I was supposed to leave with on that night. "I pulled a gun out from my waist and I made sure that it was on safety and that there was no bullets in the chamber. I was telling everyone to stop fighting. The gun I had I was pointing it towards the sky. It was a 9MM. People started running and I guess someone had called the cops. I [saw] one cop car coming so I ran. "While I was running I saw a cop car in front of me and I threw the gun which I had [in] my hand. I tried to throw it over the fence but I heard it hit the fence and fall on the ground. I ended up on the ground and then the cops started kicking me and all I remember is being in the car after that. "I didn't point the gun at a cop because I didn't know there was a cop on foot running behind me. I thought that he was still in the car. The whole day the gun was on safety and there were no bullets in the chamber. On this date I only had those drinks I didn't do any drugs."

12510430

Raymond C. FERRARI v. JOHNSON AND JOHNSON, INC., et al.

Ferrari v. Johnson & Johnson, Inc.

2019-05-21

AC 41170

115

126

210 A.3d 115

210

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

Raymond C. FERRARI v. JOHNSON AND JOHNSON, INC., et al.

Raymond C. FERRARI v. JOHNSON AND JOHNSON, INC., et al. AC 41170 Appellate Court of Connecticut. Argued January 17, 2019 Officially released May 21, 2019 Andrew W. Skolnick, for the appellant (plaintiff). W. Kennedy Simpson, pro hac vice, with whom was Christopher J. Lynch, for the appellees (defendants). Alvord, Sheldon and Pellegrino, Js.

4944

31979

ALVORD, J. The plaintiff, Raymond C. Ferrari, appeals from the summary judgment rendered by the trial court in favor of the defendants, Johnson & Johnson, Inc., and Synthes, Inc. The plaintiff claims that the court erred by holding that (1) he cannot prove that the defendants' product was defective, or that the product's alleged defect caused the plaintiff's injury, without the use of expert testimony, and (2) the learned intermediary doctrine barred the plaintiff's failure to warn claim. We affirm the judgment of the trial court. The following undisputed facts and procedural history are relevant to our resolution of this appeal. On August 17, 2012, the plaintiff underwent spinal surgery at Hartford Hospital. The procedure included a posterolateral fusion, in which the plaintiff's surgeon, Dr. Paul Schwartz, implanted various components of the defendants' product, the Synthes Matrix spinal system (product). This system included stabilizing titanium rods that were used in the fusion of the plaintiff's spine. The plaintiff's surgery required a junction of the new titanium hardware with a previously placed steel construct. On April 4, 2013, the plaintiff underwent a second surgery, which revealed a fracture of the left titanium rod at the junction of the new titanium instrumentation with the old steel construct. On April 7, 2016, the plaintiff served a four count complaint on the defendants. The first two counts alleged product defect claims pursuant to the Connecticut Product Liability Act, General Statutes § 52-572m et seq. Specifically, the plaintiff set forth claims involving (1) a failure to warn defect and (2) a design defect. The third and fourth counts alleged breaches of express and implied warranties. The deadline for the plaintiff to disclose any expert witnesses was January 15, 2017, pursuant to the parties' mutually agreed on scheduling order. The plaintiff failed to disclose any expert witnesses. On April 17, 2017, the defendants filed a motion for summary judgment, arguing that (1) the plaintiff had failed to disclose an expert witness, (2) the plaintiff could not establish that the product was defective, (3) comment (k) to § 402A of the Restatement (Second) of Torts barred the plaintiff's claims, (4) the learned intermediary doctrine barred the plaintiff's claims, and (5) the plaintiff could not establish causation. On July 10, 2017, the plaintiff filed an objection to the defendants' motion for summary judgment, claiming that a product defect can be inferred from the evidence without expert testimony and that genuine issues of material fact existed as to whether there were adequate warnings. A hearing on the defendants' motion for summary judgment was held on July 31, 2017. The court issued its memorandum of decision on November 28, 2017, granting the defendants' motion for summary judgment. This appeal followed. Additional facts and procedural history will be set forth as necessary. Before addressing the plaintiff's claims, we set forth the applicable standard of review of a trial court's ruling on a motion for summary judgment. "Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) DiMiceli v. Cheshire , 162 Conn. App. 216, 221-22, 131 A.3d 771 (2016). "Once the moving party has met its burden [of production] . the opposing party must present evidence that demonstrates the existence of some disputed factual issue.... [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.... The presence . of an alleged adverse claim is not sufficient to defeat a motion for summary judgment." (Citation omitted; internal quotation marks omitted.) Episcopal Church in the Diocese of Connecticut v. Gauss , 302 Conn. 408, 422, 28 A.3d 302 (2011), cert. denied, 567 U.S. 924, 132 S.Ct. 2773, 183 L.Ed.2d 653 (2012). "Our review of the decision to grant a motion for summary judgment is plenary.... We therefore must decide whether the court's conclusions were legally and logically correct and find support in the record." (Internal quotation marks omitted.) DiMiceli v. Cheshire , supra, 162 Conn. App. at 222, 131 A.3d 771. I The plaintiff first claims that the trial court erred by holding that he cannot prove that the defendants' product was defective, or that the product's alleged defect caused the plaintiff's injury, without the use of expert testimony. In response, the defendants argue that expert testimony was required for the plaintiff to prevail on his claims, as a matter of law. We agree with the defendants. The following additional facts and procedural history are relevant to our resolution of this claim. The defendants submitted numerous exhibits in support of their motion for summary judgment, including Dr. Schwartz' notes, the transcript of Dr. Schwartz' deposition, and a copy of the product insert that contained warnings with respect to the use of the defendants' product. The product's insert explained that nonunion could result from the product's use. The insert provided in relevant part: "These devices can break when subjected to the increased loading associated with delayed union or nonunion. Internal fixation appliances are load-sharing devices which hold a fracture in alignment until healing occurs. If healing is delayed, or does not occur, the implant could eventually break due to metal fatigue. Loads produced by weight-bearing and activity levels will dictate the longevity of the implant. The patient should understand that stress on an implant can involve more than weight-bearing. In the absence of solid bony union, the weight of the limb alone, muscular forces associated with moving a limb, or repeated stresses of apparent relatively small magnitude, can result in the failure of the implant." (Emphasis omitted.) In its memorandum of decision, the trial court concluded that, without expert testimony to establish the existence of a defect and the element of causation, the plaintiff could not, as a matter of law, maintain a breach of warranty claim or a strict liability design defect claim against the defendants. The court concluded that, under the modified consumer expectation test, the plaintiff could not prove that the defendants' product was defective without the use of expert testimony. With respect to causation, the trial court determined that the product was of a complex design, and that "[e]xpert testimony is thus essential, because the claims will raise and address complex and highly technical concepts and questions, which are clearly beyond the everyday experiences of the ordinary consumer." We begin by setting forth the applicable standard of review and relevant legal principles that guide our analysis. "Our Supreme Court has described the essential elements of a strict products liability claim as follows: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in the condition." (Emphasis omitted; internal quotation marks omitted.) Theodore v. Lifeline Systems Co ., 173 Conn. App. 291, 308, 163 A.3d 654 (2017). The plaintiff first argues that, with respect to whether the product was in a defective condition and was unreasonably dangerous to the consumer or user, the ordinary consumer expectation test was applicable and, therefore, he was not required to provide expert testimony to prove the product's defect. We disagree. Under the ordinary consumer expectation test, "[t]o be considered unreasonably dangerous, the article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." (Internal quotation marks omitted.) Izzarelli v. R.J. Reynolds Tobacco Co ., 321 Conn. 172, 185, 136 A.3d 1232 (2016). "Expert testimony on product design is not needed to prove the product's defect ." Id., at 203, 136 A.3d 1232. In Izzarelli, however, our Supreme Court held that the modified consumer expectation test is our primary strict product liability test. Id., at 194, 136 A.3d 1232. The court explained the limited circumstances in which the ordinary consumer expectation test applied: "The ordinary consumer expectation test is reserved for cases in which the product failed to meet the ordinary consumer's minimum safety expectations, such as res ipsa type cases." (Emphasis in original.) Id. "In other words, the ordinary consumer expectation test would be appropriate when the incident causing injury is so bizarre or unusual that the jury would not need expert testimony to conclude that the product failed to meet the consumer's expectations." Id., at 191, 136 A.3d 1232 ; see Potter v. Chicago Pneumatic Tool Co ., 241 Conn. 199, 222, 694 A.2d 1319 (1997) (The court emphasized that it would "not require a plaintiff to present evidence relating to the product's risks and utility in every case.... There are certain kinds of accidents-even where fairly complex machinery is involved-[that] are so bizarre that the average juror, upon hearing the particulars, might reasonably think: Whatever the user may have expected from that contraption, it certainly wasn't that." [Emphasis added; internal quotation marks omitted.] ). The present case does not arise in any of the limited circumstances in which the ordinary consumer expectation test is applicable. This is not a "res ipsa type case" or a case in which the "injury is so bizarre or unusual that the jury would not need expert testimony ." Izzarelli v. R.J. Reynolds Tobacco Co ., supra, 321 Conn. at 191, 136 A.3d 1232. Accordingly, the modified consumer expectation test applies in the present case. "Under the modified consumer expectation test, the jury would weigh the product's risks and utility and then inquire, in light of those factors, whether a reasonable consumer would consider the product design unreasonably dangerous." (Internal quotation marks omitted.) Id., at 190, 136 A.3d 1232. Therefore, "[t]o establish the defect, the plaintiff's case required expert testimony on [the product] design and manufacture, as well as the feasibility of an alternative design." Id., at 203-204, 136 A.3d 1232 ; see White v. Mazda Motor of America, Inc ., 139 Conn. App. 39, 49, 54 A.3d 643 (2012) ("[a]lthough it is true that an ordinary consumer may, under certain circumstances, be able to form expectations as to the safety of a product . [our courts] nonetheless consistently have held that expert testimony is required when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors" [citation omitted; internal quotation marks omitted] ), aff'd, 313 Conn. 610, 99 A.3d 1079 (2014). Thus, the trial court correctly held that expert testimony was required to prove the product's defect in the present case. The plaintiff also argues that expert testimony was not required to prove that the alleged defect caused the injury for which compensation was sought. Specifically, he argues that expert testimony was not required to prove causation because "[t]here is no dispute that the defendants' product failed." We disagree. "Proof that a defect in the product caused the injury in controversy is a prerequisite to recovery for product-caused injury in every products liability case, whether the action is grounded on negligence, breach of warranty, strict liability in tort . or a combination of such theories." (Internal quotation marks omitted.) Theodore v. Lifeline Systems Co ., supra, 173 Conn. App. at 308, 163 A.3d 654. "When the causation issue involved goes beyond the field of ordinary knowledge and experience of judges and jurors, expert testimony is required." (Internal quotation marks omitted.) Id., at 311, 163 A.3d 654. The product at issue in the present case is a complex product: a spinal system which includes stabilizing titanium rods that are implanted into the patient's spine. The implanted product components consist of fifteen screws, two rods, and two transverse transconnectors. Accordingly, we agree with the trial court's determination that expert testimony was required to establish causation. For the foregoing reasons, we conclude that the trial court properly rendered summary judgment in favor of the defendants, with respect to the plaintiff's design defect and breach of warranty claims, because the plaintiff could not prove that the defendants' product was defective, or that the product's alleged defect caused the plaintiff's injury, without the use of expert testimony. II The plaintiff next claims that genuine issues of material fact remained with respect to his failure to warn claim and, therefore, the learned intermediary doctrine did not bar this claim. Specifically, the plaintiff argues that, although the written warnings contained in the product insert were adequate, "[t]he factual circumstances of this case make the application of the learned intermediary doctrine inappropriate. The warnings were not adequate when combined with the input and influence of [the] defendants' product representative." We disagree. The following additional facts and procedural history are relevant to our resolution of this claim. As previously noted, the plaintiff's surgery required a junction of the new titanium hardware with a previously placed steel construct. In addition, the plaintiff alleges that he weighed 267 pounds at the time of his first surgery. The product was sold with a package insert containing several warnings about the risk of product failure and breakage. Specifically, the warnings provided that "factors such as the patient's weight . have an effect on the stresses to which the implant is subjected, and therefore on the life of the implant." The warnings additionally provided that "[d]issimilar metals in contact with each other can accelerate the corrosion process due to galvanic corrosion effects," and warn against "[m]ixing titanium . with stainless implant components . for metallurgical, mechanical and functional reasons." In his complaint, with respect to his failure to warn claim, the plaintiff alleged that the defendants' products were sold "without proper or adequate warnings, labels and instructions regarding use in patients of the plaintiff's size and history of prior spinal fusions and instrumentalities," and "without proper or adequate warnings, labels and instructions regarding the junction of titanium hardware to stainless steel hardware ." In the plaintiff's objection to the defendants' motion for summary judgment, he argued that "[t]he warnings were not adequate when combined with the input and influence of the defendant's product representative." The plaintiff claimed that, prior to his first surgery, "Dr. Schwartz had discussions and consultations with Mike Rogers, who was and still is the defendants' local sales representative. Those discussions were in the nature of technical assistance, including the product to be used in the surgery and the properties thereof, including the size and type." Similarly, at the hearing on the defendants' motion for summary judgment, the plaintiff's counsel argued: "[Dr. Schwartz] testified that ultimately it was his decision. My argument, Your Honor . is that he was nonetheless influenced; and the warnings were muted by virtue of the defendants' agent's involvement. And for that, that is a question of fact as to what extent he was influenced, to what extent the warnings were muted and weakened, and that is something that the trier of fact should decide." In its memorandum of decision, the trial court concluded: "There is no testimony or other evidence that shows that the consultant had any impact on Dr. Schwartz' decisions regarding the plaintiff's surgery. Accordingly, there is no question of fact that the learned intermediary doctrine bars the plaintiff's failure to warn claim." We begin by setting forth the applicable standard of review and relevant legal principles that guide our analysis. A product may be defective because of inadequate warnings or instructions. See Hurley v. Heart Physicians, P.C ., 278 Conn. 305, 315, 898 A.2d 777 (2006) ; Giglio v. Connecticut Light & Power Co ., 180 Conn. 230, 236, 429 A.2d 486 (1980) ("the failure to warn . is, of itself, a defect"). "According to the Restatement (Second) of Torts, certain products, by their very nature, cannot be made safe. See 2 Restatement (Second), [Torts § 402A, comment (k) (1965) ]. Prescription drugs generally fall within the classification of unavoidably unsafe products.... "Comment (k) to § 402A of the Restatement (Second) of Torts provides that some products are incapable of being made safe for their intended and ordinary use. Nevertheless, certain unavoidably unsafe products provide such benefits to society that their use is fully justified, notwithstanding the unavoidab[ly] high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous.... [Id.] Comment (k) provides that a manufacturer of an unavoidably unsafe product should not . be held to strict liability for unfortunate consequences attending their use, merely because [it] has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.... "A manufacturer of an unavoidably unsafe product can avoid strict liability if the product is properly prepared, and accompanied by proper directions and warning . [Id.] Generally, a manufacturer's duty to warn of dangers associated with its products pertains only to known dangers and runs to the ultimate user or consumer of those products.... The learned intermediary doctrine, which is supported by comment (k) to § 402A of the Restatement (Second) of Torts, is an exception to this general rule.... "The learned intermediary doctrine provides that adequate warnings to prescribing physicians obviate the need for manufacturers of prescription products to warn ultimate consumers directly. The doctrine is based on the principle that prescribing physicians act as learned intermediaries between a manufacturer and consumer and, therefore, stand in the best position to evaluate a patient's needs and assess [the] risks and benefits of a particular course of treatment." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Breen v. Synthes-Stratec, Inc ., 108 Conn. App. 105, 110-12, 947 A.2d 383 (2008). In Breen , this court concluded that, under Connecticut law, the learned intermediary doctrine is properly applied to cases involving prescription implantable medical devices. Id., at 109, 947 A.2d 383. The plaintiff admits that the defendants' product was accompanied by adequate warnings in the product insert. What the plaintiff claims is at issue, however, is whether, notwithstanding the written warnings, the defendants' product representative, by his oral communications to Dr. Schwartz, nullified the written warnings in the insert and rendered the warnings inadequate. In Hurley v. Heart Physicians, P.C ., supra, 278 Conn. at 305, 898 A.2d 777, our Supreme Court considered a similar argument. In Hurley , the plaintiffs appealed from the trial court's summary judgment rendered, on the basis of the learned intermediary doctrine, in favor of the defendant manufacturer on the plaintiffs' failure to warn product liability claims. Id., at 307-308, 898 A.2d 777. Similar to the plaintiff in the present case, the plaintiff parents in Hurley and their fourteen year old daughter who used the pacemaker at issue, admitted that the product was accompanied by adequate warnings in the product's manual. Id., at 321, 898 A.2d 777. The plaintiffs' claim before the trial court was based on the assertion that the defendant's product representative had made statements to the daughter's treating physician that nullified the warnings that had been contained in the product's manual. Id., at 307, 898 A.2d 777. The plaintiffs presented evidence from which a jury could have found that the defendant's sales consultant had made recommendations and taken actions in a manner inconsistent with the product's warnings. The court concluded that "whether [the defendant's product representative's] actions were in derogation of the warnings in the technical manual was an issue of material fact sufficient to defeat the defendant's motion for summary judgment"; id., at 323-24, 898 A.2d 777 ; and reversed the judgment of the trial court as to the plaintiffs' product liability claims. Id., at 326, 898 A.2d 777. In the present case, however, the plaintiff failed to provide a sufficient evidentiary foundation to demonstrate the existence of a genuine issue of material fact. In Hurley , our Supreme Court noted: "If there exists an undisputed record demonstrating that [the defendant's product representative] did nothing inconsistent with the manual, then we would agree with the defendant that the trial court properly rendered judgment in its favor based on the learned intermediary doctrine." (Emphasis in original.) Id., at 321, 898 A.2d 777. The plaintiff in the present case did not present any evidence that the defendants' representative said or did anything inconsistent with the product's warnings. Accordingly, the trial court properly rendered summary judgment in favor of the defendants on the basis of the learned intermediary doctrine with respect to the plaintiff's failure to warn claim. The judgment is affirmed. In this opinion the other judges concurred. The plaintiff alleged that the defendants' product was sold "without proper or adequate warnings, labels and instructions regarding use in patients of the plaintiff's size and history of prior spinal fusions and instrumentalities," and "without proper or adequate warnings, labels and instructions regarding the junction of titanium hardware to stainless steel hardware." The plaintiff alleged that the defendants' product was "designed, fabricated, manufactured, tested, distributed, marketed and/or sold without adequate or proper precautions to prevent the failure and fracture of components once installed in patients," and that the defendants' product was "in [a] dangerous and defective condition at the time [it] left [Johnson & Johnson, Inc.'s] possession and control and [was] placed into the stream of commerce by [the defendants] with the expectation that [it] would reach users and consumers . without substantial change in [its] condition." The trial court noted that "[t]he plaintiff does not clearly allege what product defect existed but rather recites various possibilities in his allegations . The plaintiff's complaint is most clearly construed to allege a design defect." (Citation omitted.) The plaintiff does not claim otherwise on appeal. Therefore, like the trial court, we construe the plaintiff's complaint to allege strict liability failure to warn and design defect claims, and a breach of warranty claim. Moreover, the plaintiff did not request permission to file an untimely disclosure of an expert. Rather, the plaintiff was of the view, as he is on appeal, that an expert was not needed for him to prevail. At his deposition, Dr. Schwartz acknowledged that nonunion, also referred to as pseudoarthrosis, is the failure of a patient's bones to heal or fuse. He stated that nonunion is the primary reason that hardware either breaks or loosens. In their memorandum of law in support of their motion for summary judgment, the defendants stated that their expert, Dr. Nicholas Theodore, a neurosurgeon, would opine that the most likely cause of the breakage of the defendants' product, in this case, was chronic pseudoarthrosis, which was exacerbated by the plaintiff's smoking. "Under the modified consumer expectation test, the jury would weigh the product's risks and utility and then inquire, in light of those factors, whether a reasonable consumer would consider the product design unreasonably dangerous." (Internal quotation marks omitted.) Izzarelli v. R.J. Reynolds Tobacco Co ., 321 Conn. 172, 190, 136 A.3d 1232 (2016). Therefore, "[t]o establish the defect, [a] plaintiff's case require[s] expert testimony on [the product] design and manufacture, as well as the feasibility of an alternative design." Id., at 203-204, 136 A.3d 1232. In its memorandum of decision, the trial court refers to the modified consumer expectation test as the risk-utility test. Courts use these terms interchangeably. See id. Although the plaintiff argues that the ordinary consumer expectation test applies to the circumstances of the present case, he also appears to set forth an argument, on appeal, under the malfunction theory as a basis for establishing strict liability. In his brief to this court, the plaintiff argues: "Design defects can be inferred from circumstantial evidence. Under appropriate circumstances, the evidence of malfunction is sufficient evidence of a defect." "A product liability claim under the malfunction theory is distinct from an ordinary product liability claim." White v. Mazda Motor of America, Inc ., 313 Conn. 610, 622, 99 A.3d 1079 (2014). "The malfunction theory allows a plaintiff in a product liability action to rely on circumstantial evidence to support an inference that an unspecified defect attributable to a product seller was the most likely cause of a product malfunction when other possible causes of the malfunction are absent . This theory does not fall squarely within either the ordinary or modified consumer expectation test, but to some extent overlaps with both tests." (Citation omitted; emphasis added; internal quotation marks omitted.) Izzarelli v. R.J. Reynolds Tobacco Co ., supra, 321 Conn. at 194-95 n.12, 136 A.3d 1232. The plaintiff in the present case, however, did not reference the malfunction theory in his pleadings, nor did he present any allegations relative to its elements. "To properly plead a product liability claim under the malfunction theory, the plaintiff was required to at least claim in the pleadings that some unspecified defect caused the plaintiff's harm and to allege facts tending to establish the malfunction theory's two basic elements, namely, that (1) the incident that caused the plaintiff's harm was of the kind that ordinarily does not occur in the absence of a product defect, and (2) any defect most likely existed at the time the product left the manufacturer's or seller's control and was not the result of the reasonably possible causes not attributable to the manufacturer or seller." (Emphasis added; internal quotation marks omitted.) White v. Mazda Motor of America, Inc ., supra, 313 Conn. at 623, 99 A.3d 1079. "[T]he plaintiff was not required to plead a separate malfunction theory count in his complaint, but this does not relieve him of his burden of pleading facts to raise this theory in his complaint as part of his product liability claims." Id., at 625, 99 A.3d 1079. Although the plaintiff alleged an unspecified defect, he failed to allege facts to establish the malfunction theory's two basic elements. Because we conclude that the plaintiff did not raise the malfunction theory in the trial court prior to its rendering summary judgment, we decline to consider its application on appeal. Rather, as the plaintiff concedes, nonunion was a possible cause of the fracture, apart from any product defect. Moreover, the plaintiff's failure to warn claim involves the risk associated with the mixing of dissimilar metals. See part II this opinion. This issue also goes beyond the field of ordinary knowledge and experience of jurors. At the product representative's deposition, he confirmed that he evaluated the defendant's product, which was the plaintiff's pacemaker, and indicated that the battery was low. Hurley v. Heart Physicians, P.C ., supra, 278 Conn. at 309-10, 898 A.2d 777. He told the plaintiff's physician that the pacemaker's battery needed to be replaced as soon as possible. However, he also made a recommendation that he could lower the pacemaker rate to " 'buy . more time' " to replace the pacemaker's battery. Id., at 311, 898 A.2d 777. In accordance with what he believed the position of the plaintiff mother to be on the matter, the product representative chose to adjust the pacemaker down from sixty paces per minute to forty. Id. The product's manual, however, provided that rates below forty paces per minute may be used for "diagnostic purposes," and "the manual [did] not provide that rates below forty paces per minute safely may be used for diagnostic purposes after the indicator has signaled the end of battery life ." (Emphasis in original.) Id., at 323, 898 A.2d 777. The court explained: "[A]lthough the manual provides that rates below forty paces per minute may be used for 'diagnostic purposes,' whether the discussion between [the product representative] and [the physician] and the adjustment actually made were consistent with that purpose when the electric replacement indicator on the . pacemaker signaled the need for immediate replacement as in this case , raised disputed factual issues meant for consideration by a fact finder at trial, not by a court deciding whether to render summary judgment." (Emphasis in original; footnote omitted.) Hurley v. Heart Physicians, P.C ., supra, 278 Conn. at 322-23, 898 A.2d 777. In support of his claim, the plaintiff points only to the testimony of Dr. Schwartz. Dr. Schwartz, during his deposition, stated that he consulted with the defendants' sales representative before the plaintiff's surgery, about screw size and length, and that the defendants' sales representative was available to be consulted during the plaintiff's surgery. This testimony does not support the plaintiff's bald assertion that the defendants' representative made statements which diluted the product's warnings. "Mere statements of legal conclusions . and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment." (Internal quotation marks omitted.) CitiMortgage, Inc . v. Coolbeth , 147 Conn. App. 183, 193, 81 A.3d 1189 (2013), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014). Moreover, the plaintiff focuses on Dr. Schwartz' use of the product despite the product's warnings regarding the risks associated with the patient's weight and the mixing of dissimilar metals. Dr. Schwartz, however, acknowledged that it was his decision to use the defendants' product. The plaintiff does not point to any statements or actions by the defendants' product representative that could have diluted the product's warning.

12503377

Randy BRETON v. COMMISSIONER OF CORRECTION

Breton v. Comm'r of Corr.

2018-12-04

SC 19928

789

803

196 A.3d 789

196

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

Randy BRETON v. COMMISSIONER OF CORRECTION

Randy BRETON v. COMMISSIONER OF CORRECTION SC 19928 Supreme Court of Connecticut. Argued February 21, 2018 Officially released December 4, 2018 James E. Mortimer, assigned counsel, for the appellant (petitioner). Steven R. Strom, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (respondent). Palmer, McDonald, Robinson, Mullins and Kahn, Js. The listing of justices reflects their seniority status on this court as of date of oral argument.

7636

47407

PALMER, J. The petitioner, Randy Breton, who currently is serving sentences for certain violent crimes he committed in 2011, brought this habeas action against the respondent, the Commissioner of Correction, claiming that a 2013 amendment to General Statutes (Rev. to 2013) § 54-125a; see Public Acts 2013, No. 13-3, § 59 (P.A. 13-3), codified at General Statutes (Supp. 2014) § 54-125a; which eliminated risk reduction credit awarded pursuant to General Statutes § 18-98e from the calculation of a violent offender's initial parole eligibility date, thereby requiring the offender to complete 85 percent of his definite sentence before becoming parole eligible, as applied retroactively to him, violates the ex post facto clause of the United States constitution because he was statutorily entitled to such earlier parole consideration when he committed the crimes for which he is now incarcerated. The respondent filed a motion to dismiss, and the habeas court dismissed the petition, concluding that the petitioner had failed to establish an ex post facto violation because, inter alia, the risk that the petitioner will suffer increased punishment, that is, a longer period of incarceration, as a result of the 2013 amendment is too remote in light of the discretionary nature of risk reduction credit and the fact that such credit, once earned, may be revoked at any time by the respondent for cause. On appeal, the petitioner renews his claim of an ex post facto violation. We agree with the petitioner that the ex post facto clause bars the respondent from applying the 2013 amendment to the petitioner, and, accordingly, we reverse the judgment of the habeas court. The following undisputed facts and procedural history are relevant to our resolution of the petitioner's appeal. On October 27, 2011, the petitioner violated a restraining order, to which he later pleaded guilty. On December 29, 2011, the petitioner committed several additional offenses for which he was charged with two counts of assault in the first degree, one count of assault in the second degree, and one count of larceny in the third degree. On March 21, 2013, pursuant to a plea agreement, the petitioner entered a plea of nolo contendere to the assault and larceny charges, and, on August 22, 2013, he was sentenced to a total effective term of imprisonment of twenty years followed by five years of special parole. The petitioner also received a sentence of thirty months imprisonment for the restraining order violation, which term was imposed to run concurrently with the first sentence. In 2011, before the petitioner committed his offenses, the legislature passed No. 11-51 of the 2011 Public Acts (P.A. 11-51), § 22, codified at General Statutes § 18-98e. Section 18-98e (a) provides that certain inmates who were convicted of crimes committed on or after October 1, 1994, "may be eligible to earn risk reduction credit toward a reduction of such person's sentence, in an amount not to exceed five days per month, at the discretion of the Commissioner of Correction ." In addition, in 2011, General Statutes (Rev. to 2011) § 54-125a (b) provided that a person convicted of a violent crime was ineligible for parole until such person served at least 85 percent of the definite sentence imposed. The legislature amended that provision in 2011 to allow the application of "any risk reduction credit earned under the provisions of [ § 18-98e ]"; P.A. 11-51, § 25; to accelerate the date on which a violent offender would become eligible for parole. Accordingly, when the petitioner committed the offenses for which he is imprisoned, earned risk reduction credit was to be applied by the respondent both to reduce the length of a violent offender's sentence and to advance his or her initial parole eligibility date. See Perez v. Commissioner of Correction , 326 Conn. 357, 364, 163 A.3d 597 (2017) ("under the 2011 amendments, earned risk reduction credit was to be applied to an inmate's definite sentence to advance the inmate's end of sentence date, and the parole eligibility date calculated as a percentage of the sentence would advance in similar measure"). In 2013, after the petitioner was sentenced, the legislature again amended § 54-125a (b) (2), this time by removing the phrase "less any risk reduction credit earned under the provisions of [§] 18-98e." P.A. 13-3, § 59. Thus, under the 2013 amendment, violent offenders are still eligible to earn risk reduction credit to reduce their definite sentence, but that credit is no longer applied to advance their initial parole eligibility date. Consequently, when P.A. 13-3, § 59, became effective on July 1, 2013, inmates convicted of a violent offense thereafter were required to complete 85 percent of their definite sentence before they became eligible for parole. See Perez v. Commissioner of Correction , supra, 326 Conn. at 365, 163 A.3d 597. In 2016, the petitioner filed an amended petition for a writ of habeas corpus, claiming that the 2013 amendment to § 54-125a (b) (2), as applied to him, violates the ex post facto clause because that amendment retroactively increased the amount of time he would be required to serve before becoming eligible for parole. At his habeas trial, the petitioner presented the testimony of Michelle Deveau, a records specialist with the Department of Correction (department), who testified that the petitioner at that time was eligible for risk reduction credit and that, as of the date of the habeas trial, had earned 158 such credits, the maximum number he could have earned at that point in his sentence. Deveau further testified that, although discretionary, risk reduction credit is awarded by the respondent routinely and that, each month, the department's computer system automatically posts it to the timesheets of eligible inmates. The petitioner also adduced testimony from Heidi Palliardi, a supervisor with the department's Sentence Calculation and Interstate Management Unit, concerning the risk reduction credit program. She testified that risk reduction credit is governed by department administrative directive 4.2A and that, to remain eligible to receive such credit, inmates must follow all institutional rules, remain free of any disciplinary reports and comply with their individual "offender accountability plan," which is provided to every inmate after sentencing. Palliardi further explained that risk reduction credit is subject to forfeiture, after notice and a hearing, for failure to comply with any of the aforementioned program requirements. Finally, the petitioner presented the testimony of Richard Sparaco, the executive director of the Board of Pardons and Paroles (board), who explained that, under the 2013 amendment to § 54-125a (b) (2), "the [d]epartment . no longer could apply risk reduction earned credits to [advance] the parole eligibility date for anyone [who] the board has designated . a violent offender." Sparaco also stated that parole is granted at the initial parole hearing in approximately 55 percent of all cases. Following the habeas trial, the court issued a memorandum of decision and dismissed the petition. The court concluded that the petitioner had failed to establish an ex post facto violation because, inter alia, the risk that the petitioner would suffer increased punishment as a result of the 2013 amendment to § 54-125a (b) (2) was entirely speculative due to the fact that the award of risk reduction credit is discretionary and the fact that such credit may be revoked by the respondent for cause at any time. We agree with the petitioner that, contrary to the determination of the habeas court, the prohibition of the ex post facto clause bars the retroactive application of the 2013 amendment to § 54-125a (b) (2) to him. Before addressing the merits of the petitioner's claim, we set forth the governing legal principles. The ex post facto clause of the United States constitution prohibits retroactive application of a law that "inflicts a greater punishment, than the law annexed to the crime, when committed." (Emphasis omitted.) Calder v. Bull , 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). In other words, the clause "forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer." Lindsey v. Washington , 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182 (1937). Although a defendant claiming an ex post facto violation need not establish with certainty that retroactive application of a new law will result in greater or more onerous punishment, the United States Supreme Court has "made it clear that mere speculation or conjecture that a change in law will retrospectively increase the punishment for a crime will not suffice to establish a violation of the [e]x [p]ost [f]acto [c]lause. See California Dept. of Corrections v. Morales , 514 U.S. 499, 509 [115 S.Ct. 1597, 131 L.Ed.2d 588] (1995). [Rather, the] touchstone of [the] [c]ourt's inquiry is whether a given change in law presents a sufficient risk of increasing the measure of punishment attached to the covered crimes." (Internal quotation marks omitted.) Peugh v. United States , 569 U.S. 530, 539, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013). Put differently, the risk of an adverse impact on a prisoner's expected term of confinement must be "genuine"; Johnson v. Commissioner of Correction , 258 Conn. 804, 818, 786 A.2d 1091 (2002) ; and not merely "remote" or "conceivable ." California Dept. of Corrections v. Morales , supra, at 508, 115 S.Ct. 1597. Generally speaking, however, "[t]he question when a change in law creates such a risk is a matter of degree; the test cannot be reduced to a single formula." (Internal quotation marks omitted.) Peugh v. United States , supra, at 539, 133 S.Ct. 2072. Furthermore, "[t]he United States Supreme Court has recognized that a law need not impair a vested right to violate the ex post facto prohibition. Evaluating whether a right has vested is important for claims under the [c]ontracts or [d]ue [p]rocess [c]lauses, which solely protect [preexisting] entitlements.... The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the [e]x [p]ost [f]acto [c]lause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the [c]lause if it is both retrospective and more onerous than the law in effect on the date of the offense.... Weaver v. Graham , 450 U.S. 24, 29-31, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).... "The United States Supreme Court also has recognized that [t]he presence of discretion does not displace the protections of the [e]x [p]ost [f]acto [c]lause. Garner v. Jones , 529 U.S. 244, 253, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). Rather, [t]he controlling inquiry . [is] whether retroactive application of the change in [the] law create[s] a sufficient risk of increasing the measure of punishment attached to the covered crimes.... Thus, unlike a due process claim, the . focus [of which is] primarily on the degree of discretion enjoyed by the [governmental] authority, not on the estimated probability that the authority will act favorably in a particular case . Giaimo v. New Haven , 257 Conn. 481, 508-509, 778 A.2d 33 (2001), quoting Kelley Property Development, Inc. v. Lebanon , 226 Conn. 314, 323, 627 A.2d 909 (1993) ; [an ex post facto claim's] primary focus . is the probability of increased punishment." (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction , supra, 258 Conn. at 817-18, 786 A.2d 1091. In addition, it is firmly established that statutes governing parole eligibility are part of the "law annexed to the crime" for ex post facto clause purposes. Calder v. Bull , supra, 3 U.S. (3 Dall.) at 390 ; see, e.g., Warden v. Marrero , 417 U.S. 653, 658, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). As the United States Supreme Court explained in Marrero , "[a]lthough . the precise time at which the offender becomes eligible for parole is not part of the sentence . it is implicit in the terms of the sentence. And because it could not be seriously argued that sentencing decisions are made without regard to the period of time a defendant must spend in prison before becoming eligible for parole, or that such decisions would not be drastically affected by a substantial change in the proportion of the sentence required to be served before becoming eligible, parole eligibility can be properly viewed as being determined-and deliberately so-by the sentence of the [court]." Id., at 658, 94 S.Ct. 2532 ; see Weaver v. Graham , supra, 450 U.S. at 32, 101 S.Ct. 960 ("[w]e have previously recognized that a prisoner's eligibility for reduced imprisonment is a significant factor entering into both the defendant's decision to plea bargain and the judge's calculation of the sentence to be imposed"). Thus, in Weaver v. Graham , supra, 450 U.S. at 24, 101 S.Ct. 960, the Supreme Court struck down on ex post facto grounds a then newly enacted Florida statute that reduced the number of good time credits an inmate could earn because the law "effectively postponed the date when [the petitioner] would become eligible for early release." Lynce v. Mathis , 519 U.S. 433, 442, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) ; see Weaver v. Graham , supra, at 25-27, 101 S.Ct. 960. The court explained that the "retroactive alteration of parole or early release provisions, like the retroactive application of provisions that govern initial sentencing, implicates the [e]x [p]ost [f]acto [c]lause because such credits are one determinant of petitioner's prison term . and . [the petitioner's] effective sentence is altered once this determinant is changed." (Internal quotation marks omitted.) Lynce v. Mathis , supra, at 445, 117 S.Ct. 891, quoting Weaver v. Graham , supra, at 32, 101 S.Ct. 960. In Lynce , the court relied on Weaver in deciding that a statute that made certain offenders ineligible to continue earning "overcrowding" credits and retroactively revoked the overcrowding credits those inmates had already earned constituted increased punishment in violation of the ex post facto clause. See Lynce v. Mathis , supra, at 437-39, 442, 445-46, 117 S.Ct. 891. Since Weaver , federal courts uniformly have held that "it is unconstitutional to apply a statute that alters, to the defendant's disadvantage, the terms under which eligibility for [parole] is calculated, if that statute was enacted after the date of the underlying offense ." United States v. Paskow , 11 F.3d 873, 878 (9th Cir. 1993). The court in Paskow elaborated on the rationale underlying its assertion: "The [United States] Supreme Court's affirmance of the . decision in Greenfield v. Scafati , 277 F.Supp. 644 (D. Mass. 1967), aff'd mem., 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250 (1968), makes that proposition indisputable ." United States v. Paskow , supra, at 878. "Although the Supreme Court affirmed Greenfield in a memorandum [decision] . its decision is controlling authority. Indeed, the [c]ourt has cited its memorandum [decision] with approval [in] Weaver v. Graham , [supra] 450 U.S. [at 34, 101 S.Ct. 960], and has described it as one of [t]he [c]ourt's precedents [ id., at 37, 101 S.Ct. 960 ] ." (Citation omitted; internal quotation marks omitted.) United States v. Paskow , supra, at 878. "In Greenfield , a defendant who was incarcerated following revocation of his parole challenged a statute that prohibited any state parole violator from receiving [good conduct] credits during his first six months in custody following revocation.... At the time [that] the defendant committed his underlying crime, all prisoners, including parole violators, could accumulate [good conduct] credits from the beginning of their incarceration. The new statute . was adopted after the defendant committed his underlying crime, but before he committed the offense for which his parole was revoked. The [three judge panel in Greenfield ] held that application of the statute to the defendant violated the ex post facto clause, because the statute prevented him from being released as early as he might have been had he been permitted to amass [good conduct] credits under the statute in effect at the time he committed the underlying crime. Thus, according to the [three judge panel] and according to the Supreme Court, the statute operated retrospectively and to his detriment. As the [three judge panel] stated, the effect of the statute was to [extend] his sentence and [to] increas[e] his punishment beyond the amount he expected or had notice of when he committed his underlying crime. [ Greenfield v. Scafati , supra, 277 F. Supp. at] 645.... "[Federal] [c]ircuit courts that have considered the ex post facto issue have, without exception, followed Greenfield , holding that the ex post facto clause is violated when a defendant's eligibility for release is adversely affected under a statute that was not in effect at the time of the defendant's underlying crime but was adopted before the defendant committed the act for which his parole was revoked." (Citation omitted; emphasis omitted; internal quotation marks omitted.) United States v. Paskow , supra, 11 F.3d at 878-79 ; see also, e.g., Schwartz v. Muncy , 834 F.2d 396, 398 n.8 (4th Cir. 1987) ("parole eligibility is part of the law annexed to the crime at the time of a person's offense"); Burnside v. White , 760 F.2d 217, 220 (8th Cir.) ("[t]here is no question that a new parole statute may alter the consequences attached to a crime for which a prisoner already has been sentenced . [and] to the degree that a statute does so, it has retrospective effect"), cert. denied, 474 U.S. 1022, 106 S.Ct. 576, 88 L.Ed.2d 559 (1985) ; Lerner v. Gill , 751 F.2d 450, 454 (1st Cir.) ("parole eligibility is part of the law annexed to the crime for ex post facto purposes" [internal quotation marks omitted] ), cert. denied, 472 U.S. 1010, 105 S.Ct. 2709, 86 L.Ed.2d 724 (1985) ; Shepard v. Taylor , 556 F.2d 648, 654 (2d Cir.1977) ("[s]ince parole eligibility is considered an integral part of any sentence . official [postsentence] action that delays eligibility for supervised release runs afoul of the ex post facto proscription" [citation omitted] ). With the foregoing principles in mind, we must determine whether the 2013 amendment to § 54-125a (b) (2) creates a sufficient risk that the petitioner will be incarcerated longer than he would have been under the 2011 amendment to the statute. As we previously discussed, the habeas court concluded that that risk was too speculative and attenuated to warrant relief under the ex post facto clause because the granting of risk reduction credit is discretionary and the respondent can revoke those credits at any time for cause. In considering whether the habeas court was correct in its analysis, it is instructive to examine cases in which changes to parole eligibility rules were determined not to have violated the ex post facto clause on the ground that the risk of increased punishment was deemed too speculative and attenuated. The seminal case, from which the terms "speculative" and "attenuated" derive for the purpose of evaluating the scope of the ex post facto clause, is California Dept. of Corrections v. Morales , supra, 514 U.S. at 508-509, 115 S.Ct. 1597. In Morales , the respondent, Jose Ramon Morales, claimed that a California statute that had changed the frequency-from every year to every three years-within which prisoners convicted of more than one homicide must be reconsidered for parole violated the ex post facto clause. Id., at 503-504, 115 S.Ct. 1597. As in every ex post facto case, the controlling inquiry for the court was whether the statute's retroactive application created a sufficient risk of increasing the measure of punishment attached to the petitioner's crime. Id., at 509, 115 S.Ct. 1597. In concluding that it did not, the court emphasized three points. First, the court noted that the statute applied only to prisoners who had committed multiple murders, "a class of prisoners for whom the likelihood of release on parole [was extremely] remote" to begin with. Id., at 510, 115 S.Ct. 1597. To demonstrate just how remote, the court took judicial notice of evidence presented in another California case that 85 percent of all California prisoners-not just those convicted of multiple homicides-are denied parole at subsequent parole hearings. Id., at 510-11, 115 S.Ct. 1597. Second, it was extremely important to the court that "[t]he amendment has no effect on the date of any prisoner's initial parole suitability hearing; it affects the timing only of subsequent hearings." (Emphasis in original.) Id., at 511, 115 S.Ct. 1597 ; see also id., at 507, 115 S.Ct. 1597 (noting that "[t]he amendment . left unchanged the substantive formula for securing any reductions to [the petitioner's] sentencing range . [and] had no effect on the standards for fixing a prisoner's initial date of eligibility for parole" [citations omitted; internal quotation marks omitted] ); id., at 512, 115 S.Ct. 1597 ("there is no reason to conclude that the amendment will have any effect on any prisoner's actual term of confinement"). Finally, the court emphasized that the statute did not require the parole board to delay subsequent hearings by up to two years; rather, it merely gave it the discretion to do so "to avoid the futility of going through the motions of reannouncing its denial of parole suitability on a yearly basis." Id. Recently, in Perez v. Commissioner of Correction , supra, 326 Conn. at 357, 163 A.3d 597, we relied on the court's reasoning in Morales in concluding that retroactive application of another 2013 amendment to General Statutes (Rev. to 2013) § 54-125a (e), which allowed the board to decline to hold a prisoner's initial parole eligibility hearing if certain conditions were met; see Public Acts 2013, No. 13-247, § 376; did not run afoul of the ex post facto clause. See Perez v. Commissioner of Correction , supra, at 377-78, 163 A.3d 597. As we explained in Perez , "the statute in effect when the petitioner [Dominic Perez] committed his offense [provided] that the board shall conduct a hearing when a person has completed 85 percent of his total effective sentence. General Statutes (Rev. to 2009) § 54-125a (e). The 2013 amendment provide[d] that the board may conduct a hearing at that time . but require[d] that, in the event that the board declines to hold a hearing, it must document the specific reasons for not doing so and provide such reasons to the offender." (Emphasis in original.) Perez v. Commissioner of Correction , supra, at 375-76, 163 A.3d 597. In reaching our decision in Perez , we likened the 2013 amendment to General Statutes (Rev. to 2013) § 54-125a (e) to the California statute at issue in Morales , observing that, as in Morales , the amendment did not affect a violent offender's initial parole eligibility date but, instead, merely permitted the parole board to delay the initial hearing, as long as the board documented its reasons for doing so. Id., at 377-78, 163 A.3d 597. We concluded that, "[b]ecause the parole hearing provision [did] not alter the calculation of when an inmate is eligible for parole, and because the board . still [was required to] consider the inmate's parole suitability at that time, the elimination of a mandatory hearing in the 2013 parole hearing provision [did] not increase the punishment imposed for the petitioner's offense." Id. In the present case, it cannot reasonably be argued that the 2013 amendment to General Statutes (Rev. to 2013) § 54-125a (b) (2) does not "alter the calculation of when [the petitioner] is eligible for parole ." Id., at 377, 163 A.3d 597. It clearly does so by eliminating risk reduction credit from that calculation. Indeed, the petitioner has consistently earned the maximum number of risk reduction credits that were available to him, and the respondent has provided no reason to believe either that the petitioner will be denied risk reduction credit in the future or that any credit that he earns or already has earned is likely to be revoked. In such circumstances, it strikes us as quite speculative to conclude that the petitioner's release date will not be adversely affected by retroactively applying the 2013 amendment to him. See, e.g., Lynce v. Mathis , supra, 519 U.S. at 444, 117 S.Ct. 891 ( Morales "rested squarely on the conclusion that a prisoner's ultimate date of release would be entirely unaffected by the change in the timing of [parole] suitability hearings" [internal quotation marks omitted] ); see also Weaver v. Graham , supra, 450 U.S. at 35-36, 101 S.Ct. 960 (finding ex post facto violation when "the new provision constrict[ed] the inmate's opportunity to earn early release, and thereby [made] more onerous the punishment for crimes committed before its enactment"); United States v. Paskow , supra, 11 F.3d at 877 (in considering whether new law violates ex post facto clause, "a court must focus on the change in the defendant's eligibility to receive a lesser sentence than a new law may permit, regardless of whether the defendant would actually have received the lesser sentence" [emphasis in original] ). Under the reasoning of Morales and Perez , therefore, applying the amendment retroactively to the petitioner does not pass muster under the ex post facto clause. In support of his contrary contention, the respondent relies on several cases that have no material bearing on the present case because they were all brought under the due process clause. For example, the respondent cites Baker v. Commissioner of Correction , 281 Conn. 241, 914 A.2d 1034 (2007), for the proposition that "parole eligibility . is not within the terms of the sentence imposed"; (internal quotation marks omitted) id., at 260, 914 A.2d 1034 ; and that "parole eligibility under § 54-125a does not constitute a cognizable liberty interest sufficient to invoke habeas jurisdiction." Id., at 261-62, 914 A.2d 1034. On the basis of this language, the respondent argues that "parole in Connecticut . is of no constitutional significance" and that "there cannot be an ex post facto violation because parole is not part of the sentence." In Baker , however, we took pains to distinguish the due process claim at issue in that case from an ex post facto claim-a claim that was not made in that case-stating in relevant part: "In Johnson v. Commissioner of Correction , supra, 258 Conn. at 808, 818-19, 786 A.2d 1091, this court concluded that the habeas court had jurisdiction to consider the petitioner's ex post facto challenge to the board's parole eligibility calculation for his sentence based on its retroactive application of § 54-125a (b) (2) and (c). We distinguished the petition in Johnson from that in Vincenzo v. Warden , 26 Conn. App. 132, 142, 599 A.2d 31 (1991), [in which] the Appellate Court had [upheld the decision of the habeas court rejecting] a due process challenge to [the retroactive application of] the predecessor to § 54-125a . because the broad discretion vested in the board to determine whether to consider an inmate's parole suitability under the statute did not give rise to a cognizable liberty interest. Johnson v. Commissioner of Correction , supra, at 816-17, 786 A.2d 1091. This court explained that, [u]nlike [the petitioner in Vincenzo ], however, the petitioner in [ Johnson was] claiming a violation of his rights under the ex post facto clause as opposed to the due process clause. The United States Supreme Court has recognized that a law need not impair a vested right to violate the ex post facto prohibition. Evaluating whether a right has vested is important for claims under the . [d]ue [p]rocess [clause], which solely protect[s] [preexisting] entitlements." (Internal quotation marks omitted.) Baker v. Commissioner of Correction , supra, 281 Conn. at 260-61, 914 A.2d 1034. Furthermore, the respondent's assertions cannot be squared with the controlling case law previously discussed, which makes eminently clear that the rules governing parole eligibility are part of the law annexed to the crime for purposes of the ex post facto clause. See, e.g., Warden v. Marrero , supra, 417 U.S. at 658, 94 S.Ct. 2532. The respondent next claims, consistent with the determination of the habeas court, that any risk of increased punishment arising out the retroactive application of the 2013 amendment to the petitioner is too speculative and attenuated to constitute an ex post facto violation because the award of risk reduction credit is discretionary and any such credit that may be awarded is subject to revocation by the respondent for cause. As we previously explained, however, the undisputed testimony adduced at the petitioner's habeas trial belies this contention. That evidence established that, although discretionary and subject to revocation for cause, risk reduction credits are awarded by the respondent routinely and are revoked only for acts of institutional misconduct; moreover, the petitioner has earned all such credits for which he was eligible, and, to date, he has not forfeited any of those credits. Notably, the respondent has failed to identify a single case in which a court has concluded that eliminating good time credits from the calculation of an offender's initial parole eligibility dates did not violate the ex post facto clause merely because the credits at issue were discretionary rather than mandatory, and our independent research has not revealed any such case. This is not surprising for the reasons set forth by the Maryland Court of Appeals in Secretary, Dept. of Public Safety & Correctional Services v. Demby , 390 Md. 580, 890 A.2d 310 (2006). In that case, the court stated in relevant part: "The nature of the special project credits . is irrelevant for the purposes of [the] ex post facto analysis. The focus of [the] analysis is not on whether these credits were mandatory or discretionary but, rather, whether the amendments to the regulations [that provide] these credits [have] the effect of lengthening [the] respondents' sentences and [are] more 'onerous' than the prior law.... [T]he sentences of those individuals . whose qualifying crimes have been changed to disqualifying crimes by the amendments, have clearly been lengthened. "[The court does] not find the increased punishment caused by the amendments . to be 'speculative and attenuated.' . [T]he case from which that language originates, Morales . is factually distinguishable from the present case. In Morales , the statutory change affected the frequency of parole eligibility hearings for inmates by giving parole officials the ability, after meeting several procedural safeguards, to postpone an inmate's yearly evaluation by up to three years when potential safety issues, among other things, [are] a concern, and parole officials [believe] the inmate would not be eligible for parole during the extended period regardless. [Morales'] ex post facto claims were rejected as the chances of an increased punishment were 'speculative and attenuated.' [In this case, the] respondents will clearly serve a longer period of time as a result of the amendments, and the determination of that increase is far easier than in Morales . "Moreover . the language included in the regulation providing that, 'this section may not be interpreted . to mean that an inmate who is eligible to receive the credits described in this section has a right to these credits or . will continue to receive these credits in the future,' does not provide sufficient notice to inmates for the purposes of the ex post facto prohibition.... That disclaimer alone does not exempt the regulation from ex post facto scrutiny." (Citation omitted; footnote omitted.) Id., at 617-18, 890 A.2d 310. The only case cited by the respondent that even arguably may be read to provide a measure of support for his position is Abed v. Armstrong , 209 F.3d 63 (2d Cir.), cert. denied, 531 U.S. 897, 121 S.Ct. 229, 148 L.Ed.2d 164 (2000), in which the Second Circuit Court of Appeals, applying the law of Connecticut, rejected a claim that a then newly adopted directive of the department disqualifying prison gang members from earning good time credits violated the ex post facto clause. Id., at 66. The court gave two reasons for its decision, one of which was the discretionary nature of the credits. Specifically, the court stated: The petitioner's "argument that the [d]irective increased his punishment by restricting his eligibility to earn good time credit assumes that before the [d]irective [ General Statutes §] 18-7a (c) automatically entitled all inmates to be eligible to earn good time credit. That assumption is erroneous. Unlike the statutes at issue in both Weaver and Lynce , [§] 18-7a (c) does not automatically confer the right to earn good time credit on all inmates. Rather, the statute [provides] only that inmates 'may' earn good time credit . thereby rendering good time credit a discretionary matter.... "In addition, and again unlike Lynce and Weaver , the [d]irective was not applied retroactively to [the petitioner]. No good time credit earned by [the petitioner] prior to the [d]irective was forfeited, and [the petitioner] was not classified as a [gang member] until after the [d]irective was in effect. By its terms, the [d]irective concerned ongoing and future-not past-conduct." (Citation omitted.) Id. The present case is distinguishable from Abed in two crucial respects. First, it is undisputed that the 2013 amendment is being applied to the petitioner retroactively, not punishing him for acts committed while he was in prison, as was the case in Abed . Second, in contrast to the petitioner in Abed , the petitioner in the present case is not claiming a right to earn risk reduction credits. Indeed, he acknowledges that the award of such credits is discretionary with the respondent and, further, that, ultimately, his opportunity to continue to earn them is a matter of legislative grace. He claims only that the risk reduction credits that he does accumulate over the years-however few or many that may be-must be applied to reduce his definite sentence and to advance his initial parole eligibility date in accordance with the law in existence at the time of his offense, which law did not give the respondent discretion to refuse to include those credits in calculating his initial parole eligibility date. In other words, the petitioner is claiming a right only to the more beneficial formula for calculating his parole eligibility date, not to the credits on which that formula is predicated. Our conclusion that the 2013 amendment to § 54-125a (b) (2), as applied to the petitioner, violates the ex post facto clause is reinforced by the legislative history surrounding the enactment. As the habeas court noted, many legislators who supported the 2013 amendment did so out of concern that the prior version of § 54-125a was too lenient, at least with respect to violent offenders. Those legislators wanted to eliminate risk reduction credit from the calculation of the initial parole eligibility date for violent offenders to ensure that they could not be paroled prior to completing 85 percent of their definite sentences. This legislative purpose bears consideration in the present case for the same reason that the court in Lynce v. Mathis , supra, 519 U.S. at 433, 117 S.Ct. 891, reviewed similar legislative history in discussing its decision in Morales . In Lynce , the court considered it relevant that the retroactive change to the parole eligibility rules at issue in Morales was not intended to prevent the early release of prisoners. Specifically, the court in Lynce stated: "[The court] concluded [in Morales that] the change at issue had neither the purpose nor the effect of increasing the quantum of punishment. Whether such a purpose alone would be a sufficient basis for concluding that a law violated the [e]x [p]ost [f]acto [c]lause when it actually had no such effect is a question the [c]ourt has never addressed. Moreover, in Morales , [the court's] statements regarding purpose did not refer to the purpose behind the creation of the original sentencing scheme; they referred instead to the question whether, in changing that sentencing scheme, the legislature intended to lengthen the inmate's sentence. To the extent that any purpose might be relevant in this case, it would only be the purpose behind the [new statute ]. Here, unlike in Morales, there is no evidence that the legislature's change in the sentencing scheme was merely to save time or money. Rather, it is quite obvious that the retrospective change was intended to prevent the early release of prisoners convicted of [murder related ] offenses who had accumulated overcrowding credits ." (Emphasis added.) Id., at 444-45, 117 S.Ct. 891. It is similarly clear that the 2013 amendment to § 54-125a (b) (2) was intended to prevent the early release of certain offenders and not to conserve time or resources. It is true, of course, that only a relatively small percentage of inmates-namely, those inmates who, like the petitioner, are incarcerated for committing a violent crime between 2011 and 2013-will be affected by our holding today. Moreover, the only relief to which those inmates are entitled is parole consideration prior to completion of 85 percent of their sentence; whether to grant parole at that time is a decision that remains solely within the broad discretion of the board. But the ex post facto clause safeguards the right of those inmates to such consideration regardless of whether they are granted parole at that initial hearing. Accordingly, the petitioner is entitled to the relief he seeks. The judgment is reversed and the case is remanded with direction to render judgment for the petitioner. In this opinion the other justices concurred. General Statutes (Supp. 2014) § 54-125a provides in relevant part: "(b) (1) No person convicted of any of the following offenses, which was committed on or after July 1, 1981, shall be eligible for parole under subsection (a) of this section: (A) Capital felony, as provided under the provisions of section 53a-54b in effect prior to April 25, 2012, (B) murder with special circumstances, as provided under the provisions of section 53a-54b in effect on or after April 25, 2012, (C) felony murder, as provided in section 53a-54c, (D) arson murder, as provided in section 53a-54d, (E) murder, as provided in section 53a-54a, or (F) aggravated sexual assault in the first degree, as provided in section 53a-70a. (2) A person convicted of (A) a violation of section 53a-100aa or 53a-102, or (B) an offense, other than an offense specified in subdivision (1) of this subsection, where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five percent of the definite sentence imposed...." General Statutes § 18-98e provides in relevant part: "(a) Notwithstanding any provision of the general statutes, any person sentenced to a term of imprisonment for a crime committed on or after October 1, 1994, and committed to the custody of the Commissioner of Correction on or after said date, except a person sentenced for a violation of section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55, 53a-55a, 53a-70a, 53a-70c or 53a-100aa, or is a persistent dangerous felony offender or persistent dangerous sexual offender pursuant to section 53a-40, may be eligible to earn risk reduction credit toward a reduction of such person's sentence, in an amount not to exceed five days per month, at the discretion of the Commissioner of Correction for conduct as provided in subsection (b) of this section occurring on or after April 1, 2006. "(b) An inmate may earn risk reduction credit for adherence to the inmate's offender accountability plan, for participation in eligible programs and activities, and for good conduct and obedience to institutional rules as designated by the commissioner, provided (1) good conduct and obedience to institutional rules alone shall not entitle an inmate to such credit, and (2) the commissioner or the commissioner's designee may, in his or her discretion, cause the loss of all or any portion of such earned risk reduction credit for any act of misconduct or insubordination or refusal to conform to recommended programs or activities or institutional rules occurring at any time during the service of the sentence or for other good cause. If an inmate has not earned sufficient risk reduction credit at the time the commissioner or the commissioner's designee orders the loss of all or a portion of earned credit, such loss shall be deducted from any credit earned by such inmate in the future...." Article one, § 10, of the United States constitution provides in relevant. part: "No State shall . pass any . ex post facto Law ." The petitioner, on the granting of certification, appealed from the judgment of the habeas court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2. We note, preliminarily, that the habeas court also rejected the petitioner's ex post facto claim because, despite the plain language of the 2011 amendment to General Statutes (Rev. to 2011) § 54-125a (b) (2); see P.A. 11-51, § 25; that provision did not afford violent offenders the right to apply their risk reduction credits to obtain parole consideration prior to serving 85 percent of their sentences, and because, in order to grant relief to the petitioner, the court would be required to "enmesh itself" impermissibly in "prison administration matters ." Both of these reasons are devoid of merit. With respect to the court's first reason, the 2011 amendment to General Statutes (Rev. to 2011) § 54a-125a (b) (2) clearly treated earned risk reduction credit as an exception to the requirement that a violent offender must serve 85 percent of his or her sentence before becoming eligible for parole consideration. See P.A. 11-51, § 25, codified at General Statutes (Supp. 2012) § 54-125a (b) (2) (person convicted of violent crime is not eligible for parole "until such person has served not less than eighty-five per cent of the definite sentence imposed less any risk reduction credit earned under the provisions of [§ ] 18-98e " [emphasis added] ). Indeed, we recently made precisely this point in Perez v. Commissioner of Correction , supra, 326 Conn. at 357, 163 A.3d 597, which was issued after the habeas court rendered its decision in the present case, in explaining the effect of the 2011 amendment to General Statutes (Rev. to 2011) § 54-125a (b) (2). See id., at 364, 163 A.3d 597 (stating that, under 2011 amendment to statute, "earned risk reduction credit was to be applied to an inmate's definite sentence to advance the inmate's end of sentence date, and the parole eligibility date calculated as a percentage of the sentence would advance in similar measure " [emphasis added] ). With respect to the habeas court's second reason for rejecting the petitioner's claim, although department officials necessarily have broad leeway in determining how best to administer this state's prisons, it is axiomatic that that discretion does not extend to violating the constitutional rights of sentenced prisoners, including, of course, the rights granted to such prisoners under the ex post facto clause. Other courts similarly have concluded that a statute that disqualified an inmate from earning good time credits on the basis of his or her membership in a prison gang did not violate the ex post facto clause because the statute did not increase the punishment for the original offense but, rather, constituted punishment for conduct occurring after the inmate entered prison. See Nevarez v. Barnes , 749 F.3d 1124, 1128 (9th Cir.) (holding that statute disqualifying gang affiliated inmate from receiving good time credits did not violate ex post facto clause because it did not apply to underlying offense), cert. denied sub nom. Nevarez v. Ducart , - U.S. -, 135 S.Ct. 295, 190 L.Ed.2d 215 (2014) ; Castlin v. Lewis , Docket No. 11-CV-06694-JST (PR), 2015 WL 435456, *8 (N.D. Cal. February 2, 2015) (holding that statute disqualifying gang affiliated inmate from receiving good time credits did not violate ex post facto clause because it did not apply retroactively but, rather, was triggered by "active and continuing gang membership"); Williams v. Lewis , Docket No. C 12-2893 RS (PR), 2014 WL 988865, *3 (N.D. Cal. March 10, 2014) (same). We note that the respondent also argues that there is no ex post facto violation because the petitioner was advised by his attorney prior to entering his plea that he was required to complete 85 percent of his sentence before becoming eligible for parole. We reject this claim. In applying the ex post facto clause, our concern is not with what the petitioner may have been told at the time of his plea or sentencing but, rather, with the law applicable at the time he committed his offenses. As the Appellate Court has stated, "for a law to violate the prohibition [of the ex post facto clause], it must feature some change from the terms of a law in existence at the time of the criminal act. That feature is entirely sensible, as a core purpose in prohibiting ex post facto laws is to ensure fair notice to a person of the consequences of criminal behavior. As . the United States Supreme Court [has explained], laws that impose a greater punishment after the commission of a crime than annexed to the crime at the time of its commission run afoul of the ex post facto prohibition because such laws implicate the central concerns of the ex post facto clause: the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated . Weaver v. Graham , [supra, 450 U.S. at 30, 101 S.Ct. 960 ]." (Emphasis added; internal quotation marks omitted.) Petaway v. Commissioner of Correction , 160 Conn. App. 727, 731-32, 125 A.3d 1053 (2015), cert. dismissed, 324 Conn. 912, 153 A.3d 1288 (2017).

12511346

Sylvester TRAYLOR v. STATE of Connecticut et al.

Traylor v. State

2019-08-27

SC 19977

467

481

213 A.3d 467

213

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:58:09.224733+00:00

Fastcase

Sylvester TRAYLOR v. STATE of Connecticut et al.

Sylvester TRAYLOR v. STATE of Connecticut et al. SC 19977 Supreme Court of Connecticut. Argued December 13, 2018 Officially released August 27, 2019 Sylvester Traylor, self-represented, the appellant (plaintiff). Jane R. Rosenberg, former solicitor general, with whom, on the brief, was George Jepsen, former attorney general, for the appellees (named defendant et al.). William L. Stevens, for the appellees (defendant Advanced Telemessaging, LLC, et al.) Donald E. Leone, Jr., with whom, on the brief, was Anthony D. Sutton, for the appellees (defendant Bassam Awwa et al.) Robinson, C. J., and Palmer, Kahn, Ecker and Stevens, Js.

7703

48849

STEVENS, J. This appeal arises from the most recent in a series of civil actions that the plaintiff, Sylvester Traylor, has brought in state and federal court relating to the suicide of his wife, Roberta Mae Traylor (Roberta). The plaintiff, who is self-represented, brought the present case against the defendants, who are (1) the state of Connecticut, numerous current and former Superior Court judges, and the Appellate Court (state defendants); (2) Roberta's treating psychiatrist, Bassam Awwa, and his employer, Connecticut Behavioral Health Associates, P.C. (Awwa defendants); and (3) Robert Knowles and Neil Knowles, and their business, Advanced Telemessaging (Knowles defendants). The plaintiff now appeals from the judgment of the trial court, Moll, J. , rendered in accordance with its granting of the defendants' motions to dismiss and for summary judgment. On appeal, the plaintiff claims that General Statutes § 52-190a, which requires a plaintiff to append a good faith certificate and supporting opinion letter to the complaint in cases of medical negligence, is unconstitutional. Although the plaintiff fully briefed his attack on the constitutionality of § 52-190a, we cannot reach the merits of that claim because of his failure to challenge the trial court's threshold conclusions that his claims against all of the defendants are barred by, inter alia, the doctrines of res judicata and collateral estoppel. Accordingly, we affirm the judgment of the trial court. The record reveals the following facts relevant to the plaintiff's claim on appeal, as pleaded in his complaint, and the complex procedural history of this case. Beginning in 2002, Awwa and his employer, Connecticut Behavioral Health Associates, P.C., provided psychiatric treatment to Roberta. In 2002, the plaintiff attended a treatment session with Roberta, at which time Awwa became aware of her suicidal thoughts. In early 2004, Awwa prescribed medication for Roberta to treat her major depressive disorder, despite the existence of manufacturers' warnings that (1) the medications should not be prescribed to anyone with suicidal thoughts, (2) "the possibility of a suicide attempt is inherent in depression and may persist until [a] significant remission occurs," and (3) "[c]lose supervision of high risk patients should accompany initial drug therapy." Awwa changed Roberta's medication on several occasions during the period of time leading up to March 1, 2004. The plaintiff contacted the Awwa defendants on nine different occasions to inform them that Roberta was having adverse reactions to the medications that Awwa had prescribed. Roberta also sent Awwa a letter dated December 23, 2003, to that effect. Awwa did not return the plaintiff's telephone calls or otherwise indicate that he appreciated the danger of the situation. On March 1, 2004, Roberta tragically committed suicide. On June 2, 2006, the plaintiff, acting as a self-represented party, filed a medical malpractice action in New London Superior Court against the Awwa defendants in his own name and as administrator of Roberta's estate, claiming wrongful death, medical malpractice, loss of chance, and loss of consortium. See Traylor v. Awwam , Superior Court, judicial district of New London, Docket No. CV-06-5001159-S (2006 action). At the time the plaintiff filed the complaint, he had not attached the certificate of good faith and written opinion of a similar health care provider, which are required by § 52-190a. On July 27, 2006, the Awwa defendants moved to dismiss the 2006 action for lack of personal jurisdiction; the trial court, Hon. D. Michael Hurley , judge trial referee, denied that motion on December 14, 2006. Subsequently, on October 19, 2006, the plaintiff filed a certificate of good faith and supporting written opinion letter authored by Howard Zonana, a professor of psychiatry at Yale University School of Medicine, opining that there was a good faith basis for the action. On December 26, 2006, the plaintiff, now represented by counsel, filed a request to amend the complaint pursuant to Practice Book § 10-60. On December 29, 2006, the Awwa defendants objected to the request, and Judge Hurley sustained their objection on January 16, 2007. On January 8, 2007, the Awwa defendants moved to dismiss the 2006 action, claiming that the complaint as originally filed lacked the certificate of merit and written opinion of a similar health care provider required by § 52-190a. Subsequently, on June 1, 2007, Judge Hurley denied that motion to dismiss and thereafter issued numerous discovery orders. The Awwa defendants did not comply with Judge Hurley's discovery orders. Eventually, counsel for the Awwa defendants stated in court that his clients had destroyed all relevant medical and telephone records that were within their exclusive possession and control, despite their knowledge of their obligation to preserve those records given a pending or impending civil action dating back to Roberta's death in March, 2004. Similarly, the Knowles defendants, acting at the direction of the Awwa defendants, destroyed relevant records in their possession. The plaintiff and his expert witnesses never had an opportunity to examine those records. Subsequently, the case was reassigned to Judge Thomas F. Parker, judge trial referee, who the plaintiff later named as a defendant in the present case. See footnote 5 of this opinion. On July 12, 2010, the plaintiff, represented by counsel, filed an amended complaint that became the operative complaint in the 2006 action, adding claims of spoliation and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., arising from the destruction of the records. On July 16, 2010, the Awwa defendants moved to dismiss the amended complaint on the ground that the plaintiff's original June 1, 2006 complaint initiating the action failed to comply with § 52-190a because the required certificate of good faith and opinion letter had not been attached. Judge Parker granted the Awwa defendants' motion, concluding that, although Judge Hurley had denied an earlier motion to dismiss filed by these defendants, that denial preceded the Appellate Court's decisions in Rios v. CCMC Corp. , 106 Conn. App. 810, 943 A.2d 544 (2008), and Votre v. County Obstetrics & Gynecology Group, P.C. , 113 Conn. App. 569, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009). See Traylor v. Awwam , Superior Court, judicial district of New London, Docket No. CV-06-5001159-S, 2010 WL 3584285, *3-4 (August 11, 2010). Relying on Rios and Votre , Judge Parker concluded that the plaintiff's failure to obtain and file the written opinion letter required by § 52-190a (a) at the initiation of the 2006 action was not remedied by the eventual filing of Zonana's letter, and that Judge Hurley's ruling to the contrary was inconsistent with this appellate precedent. Id., *5. Judge Parker next determined that Judge Hurley's earlier decision was not entitled to preclusive effect under the doctrines of law of the case or collateral estoppel. Id., at *5-6. Judge Parker then concluded that other specifications in the complaint against Connecticut Behavioral Health Associates, P.C., were barred by the statute of limitations in General Statutes § 52-555 (a). Id., at *9-10. Accordingly, on August 11, 2010, Judge Parker rendered judgment dismissing counts one through six of the complaint in the 2006 action. Id., at *10. On August 27, 2010, the plaintiff appealed from the judgment of dismissal to the Appellate Court under docket number AC 32641; the Appellate Court subsequently granted the Awwa defendants' motion to dismiss the appeal for lack of jurisdiction on January 5, 2011. In a subsequent memorandum of decision, Judge Parker rendered judgment dismissing the two remaining counts in the 2006 action, namely, spoliation and CUTPA violations, concluding that the earlier dismissal of the underlying medical malpractice claims for failure to file a good faith certificate and opinion letter meant that the defendants had rebutted the presumption that the plaintiff could have prevailed on those claims in the absence of the acts of spoliation. See Traylor v. Awwam , Superior Court, judicial district of New London, Docket No. CV-06-5001159-S, 2011 WL 1025029, *9-10 (February 15, 2011). Accordingly, Judge Parker rendered judgment for the defendants in the 2006 action. Id., at *10. On February 23, 2011, the plaintiff, as a self-represented party, appealed from that judgment to this court under docket number SC 18754; that appeal later was transferred to the Appellate Court pursuant to Practice Book § 65-4. The Appellate Court docketed the plaintiff's appeal under docket number AC 33038, along with another appeal, docket number AC 33039, which had been filed by the plaintiff's then attorney in this case on behalf of the estate. The appeal in docket number AC 33039 subsequently was withdrawn as derivative. After the plaintiff's counsel was granted leave to withdraw from the case on June 30, 2011, the Awwa defendants subsequently moved to dismiss the appeal for lack of a justiciable controversy between the parties, on the ground that the plaintiff's claims were derivative of those of the estate, with the estate's appeal having previously been dismissed. The Appellate Court granted that motion to dismiss on December 16, 2011. On December 29, 2011, the plaintiff filed a petition for certification to appeal from that judgment of dismissal, which this court denied on January 25, 2012. Traylor v. Awwa , 303 Conn. 931, 36 A.3d 242 (2012). In 2011, the plaintiff filed a new action in New London Superior Court against the Awwa and Knowles defendants, their attorneys and insurers, then Attorney General Richard Blumenthal, court officials, and several New London prosecutors. Traylor v. Awwa , Superior Court, judicial district of New London, Docket No. CV-11-5014139-S (first 2011 action). The first 2011 action, which was later removed to federal court, included in its fifteen count complaint a claim that § 52-190a violated the state and federal constitutions. See Traylor v. Awwa , Docket No. 3:11CV00132 (AWT), 2014 WL 555358, *1 (D. Conn. February 10, 2014). In a series of rulings, the plaintiff's claims in the first 2011 action, including his claim challenging the constitutionality of § 52-190a, were resolved against him. While the first 2011 action was pending, the plaintiff instituted a second action in 2011, this time in the Hartford judicial district under docket number CV-11-5035895-S (second 2011 action). The complaint in the second 2011 action also included the claim that § 52-190a is unconstitutional, and all of the claims raised in this complaint were resolved against the plaintiff. See generally Traylor v. Gerratana , 148 Conn. App. 605, 88 A.3d 552, cert. denied, 312 Conn. 901, 91 A.3d 908, and cert. denied, 312 Conn. 902, 112 A.3d 778, cert. denied, - U.S. -, 135 S. Ct. 444, 190 L. Ed. 2d 336 (2014). The plaintiff filed the present action in April, 2016, in the Stamford-Norwalk judicial district, seeking declaratory and injunctive relief, as well as damages in excess of $15 million. The plaintiff's lengthy complaint pleaded claims for relief under six separate counts, namely (1) violations of his constitutional rights to due process and equal protection of the laws by the state defendants in connection with their handling of his previous actions, (2) fraudulent concealment by the Awwa and Knowles defendants, (3) spoliation by the Awwa and Knowles defendants, (4) violation of CUTPA by Advanced Telemessaging and Connecticut Behavioral Health Associates, P.C., (5) intentional infliction of emotional distress by the Awwa and Knowles defendants and Judge Parker, and (6) loss of consortium as to the Awwa and Knowles defendants. The case subsequently was transferred to the Danbury judicial district, and later to the Complex Litigation Docket in the judicial district of Hartford. After the case was transferred to the Hartford Complex Litigation Docket, the Awwa defendants moved for summary judgment, and the Knowles defendants and the state defendants each moved to dismiss the amended complaint. The plaintiff did not oppose these motions or appear at the February 6, 2017 hearing on them. With respect to the Awwa defendants' motion for summary judgment, the trial court agreed with their argument that they are entitled to judgment as a matter of law under the doctrine of res judicata. After comparing the complaints, the trial court concluded that res judicata barred the plaintiff's claims of fraudulent concealment, CUTPA violations, and intentional infliction of emotional distress because they previously had been raised and litigated to conclusion in the first 2011 action. The trial court concluded similarly with respect to the plaintiff's claim of loss of consortium because he had an adequate opportunity to raise that claim in the first 2011 action. The trial court further determined that the plaintiff could have challenged the lower courts' conclusions on these issues by way of appealing the first 2011 action. Accordingly, the trial court granted the Awwa defendants' motion for summary judgment. The trial court addressed the state defendants' motion to dismiss as follows. The trial court first observed that the plaintiff's complaint sought no monetary damages against either the state, the Appellate Court, or any individual state defendant in his or her official capacity. The court further concluded that any claim against any state defendant in his or her individual capacity was, in effect, against the state and, therefore, barred by sovereign immunity. See, e.g., Spring v. Constantino , 168 Conn. 563, 568-69, 362 A.2d 871 (2012). As to the plaintiff's claims for declaratory and injunctive relief against the state defendants, the trial court concluded that these claims were barred by sovereign immunity because the plaintiff failed to allege sufficient facts showing that he had suffered a substantial violation of his constitutional rights or that the defendants had acted in excess of their statutory authority. Specifically, the trial court observed that these claims were identical to those raised by the plaintiff in the second 2011 action, and the trial court relied on the Appellate Court's holding in that case that the plaintiff had not sufficiently pleaded "a substantial claim that the state or one of its officers [had] violated [his] constitutional rights." (Internal quotation marks omitted.) The trial court reasoned that, in this context, the plaintiff's claim for declaratory relief was "barred on the independent grounds of sovereign immunity and collateral estoppel." The trial court also concluded that "the plaintiff [lacked] standing to challenge the constitutionality of § 52-190a because he, in fact, obtained the opinion letter required by the statute." The trial court next determined that the plaintiff's claims against the individual judges were barred by absolute judicial immunity, and that his claims were nonjusticiable to the extent that they sought an order to overturn or reverse the decisions of the Appellate Court or the Superior Court. Accordingly, the trial court granted the state defendants' motion to dismiss. Finally, the trial court granted the Knowles defendants' motion to dismiss. The trial court agreed with their argument that the plaintiff's spoliation and CUTPA claims against them were barred by the prior pending action doctrine because they also were raised in the first 2011 action. The trial court determined that dismissal was warranted given that the actions are "virtually alike" and that the first 2011 action could have provided the plaintiff with the same remedy, given that "the claims in the two actions so obviously overlap that the plaintiff moved to consolidate the matters." The trial court rendered judgment for all of the defendants in accordance with its decisions on their motions for summary judgment and dismissal. This appeal followed. On appeal, the plaintiff has filed a brief claiming that § 52-190a is unconstitutional because the "certificate of merit requirement burdens access to the courts by imposing an expensive and unnecessary prerequisite to having one's day in court." Arguing that access to the courts is a fundamental right under both the state and federal constitutions, the plaintiff contends that the certificate requirement "creates an improper and often impossible obstacle to access to the courts," citing internal pressure from within the medical community not to support plaintiffs in general, as well as the expense of obtaining the relevant medical records and hiring an appropriate expert to review them. In particular, the plaintiff relies heavily on a line of decisions from the Oklahoma Supreme Court invalidating various iterations of that state's certificate of merit statute. See, e.g., John v. Saint Francis Hospital, Inc. , 405 P.3d 681, 691 (Okla. 2017) ; Wall v. Marouk , 302 P.3d 775, 778 (Okla. 2013) ; Zeier v. Zimmer, Inc. , 152 P.3d 861, 874 (Okla. 2006). The plaintiff further argues that § 52-190a violates his right to equal protection under the state and federal constitutions. In response, the defendants contend that review of the merits of the plaintiff's constitutional claims is precluded by his failure to brief challenges to the trial court's threshold conclusions that his claims in the present case are barred by the doctrines of res judicata, collateral estoppel, and sovereign and judicial immunity, as well as the prior pending action doctrine. The state defendants further argue that, other than his challenge to the constitutionality of § 52-190a, the defendant has abandoned his other constitutional claims against the state defendants challenging various actions taken by the courts, and particularly Judge Parker, during the handling of his cases, both on and off the bench. We agree with the defendants and conclude that the plaintiff's failure to brief a challenge to the trial court's conclusions in its memoranda of decision abandons any such challenge to those conclusions, in essence mooting his constitutional attack on § 52-190a. "We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief.... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore , 289 Conn. 88, 124, 956 A.2d 1145 (2008) ; see id., at 124-25, 956 A.2d 1145 (claim abandoned when party "devotes little more than a page of her original and reply briefs combined to the discussion of her claim, limiting her argument to the bare assertion that she should not be held legally liable for offer of judgment interest because she was not specifically named in the offer and no unified offer was made to all four defendants," and cites one case "entirely unrelated to the issue on appeal"). In the present case, the plaintiff's complete failure to challenge what the trial court actually decided in its memoranda of decision operates as an abandonment of his claims. "An unmentioned claim is, by definition, inadequately briefed, and one that is generally . considered abandoned." (Internal quotation marks omitted.) State v. Saucier , 283 Conn. 207, 223, 926 A.2d 633 (2007). Indeed, when an appellant entirely fails to challenge the trial court's conclusions with respect to the merits of the case, thus leaving them intact despite the briefing of other issues, the appeal is, in essence, rendered moot. See, e.g., Hartford v. CBV Parking Hartford, LLC , 330 Conn. 200, 210, 192 A.3d 406 (2018) ("[u]ndoubtedly, if there exists an unchallenged, independent ground to support a decision, an appeal from that decision would be moot, as this court could not afford practical relief even if the appellant were to prevail on the issue raised on appeal"); Middlebury v. Connecticut Siting Council , 326 Conn. 40, 53, 161 A.3d 537 (2017) (declining to review claim that trial court improperly determined that claims were abandoned by inadequate briefing because "the plaintiffs have failed to challenge the trial court's alternative conclusions rejecting the claims on the merits"); Doe v. Hartford Roman Catholic Diocesan Corp. , 317 Conn. 357, 379 n.23, 119 A.3d 462 (2015) ("where alternative grounds found by the reviewing court and unchallenged on appeal would support the trial court's judgment, independent of some challenged ground, the challenged ground that forms the basis of the appeal is moot because the court on appeal could grant no practical relief to the complainant" [internal quotation marks omitted] ). We acknowledge that the plaintiff is a self-represented party and that it "is the established policy of the Connecticut courts to be solicitous of [self-represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self-represented] party.... The courts adhere to this rule to ensure that [self-represented] litigants receive a full and fair opportunity to be heard, regardless of their lack of legal education and experience . "This rule of construction has limits, however. Although we allow [self-represented] litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.... A . court does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised." (Citations omitted; internal quotation marks omitted.) Oliphant v. Commissioner of Correction , 274 Conn. 563, 569-70, 877 A.2d 761 (2005) ; see also Costello v. Goldstein & Peck, P.C. , 321 Conn. 244, 257-58, 137 A.3d 748 (2016) ("[t]his court has always been solicitous of the rights of [self-represented] litigants and, like the trial court, will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party" [internal quotation marks omitted] ). The solicitous treatment we afford a self-represented party does not allow us to address a claim on his behalf when he has failed to brief that claim. See, e.g., Deutsche Bank National Trust Co. v. Pollard , 182 Conn. App. 483, 487, 189 A.3d 1232 (2018) ("Other than a broad and conclusory claim that the court too narrowly construed the transaction test, the defendant has provided this court with no argument specific to any count of his counterclaim; nor has he set forth any reasoning in support of the notion that his pleadings fall within the parameters of the transaction test. Although we recognize and adhere to the well-founded policy to accord leeway to self-represented parties in the appeal process, our deference is not unlimited; nor is a litigant on appeal relieved of the obligation to sufficiently articulate a claim so that it is recognizable to a reviewing court." [Footnote omitted.] ); Tonghini v. Tonghini , 152 Conn. App. 231, 239-40, 98 A.3d 93 (2014) ("declin[ing] to enter into the statutory thicket of the family support magistrate laws without any meaningful assistance from the parties" and observing that "the fact that the defendant is self-represented cannot excuse or cure . obvious inadequacies in the record"); In re Nicholas B. , 135 Conn. App. 381, 384, 41 A.3d 1054 (2012) (declining to review self-represented respondent's claim that his trial counsel rendered ineffective assistance because his "argument is devoid of any legal analysis, let alone citation to any authority," and determining solicitude to self-represented parties was unwarranted because "[t]he major deficiencies in the presentation of this claim, which undeniably interfere with the petitioners' right to respond adequately to the claim, fall well outside of that degree of latitude afforded self-represented parties"); but cf. State v. Brown , 310 Conn. 693, 698 n.4, 80 A.3d 878 (2013) (noting policy of solicitous treatment of self-represented parties and treating defendant's motion to correct illegal sentence filed pursuant to nonexistent " 'Practice Book Rule § 93-22' " as properly filed "pursuant to Practice Book § 43-22"). In the present case, the plaintiff has not addressed any of the issues, including res judicata, collateral estoppel, standing, and the prior pending action doctrine, which provided the dispositive bases for the trial court's memoranda of decision. The plaintiff's status as a self-represented party does not permit us to overlook that complete omission. Because this omission operates as an abandonment of any challenge to what the trial court actually decided in this case, we cannot address the single substantive issue that the plaintiff has raised, namely, his challenge to the constitutionality of § 52-190a. Accordingly, we are required to affirm the judgment of the trial court. The judgment is affirmed. In this opinion the other justices concurred. The plaintiff named the following current and former Superior Court judges as defendants: James W. Abrams, Emmet L. Cosgrove, Kari A. Dooley, Thomas F. Parker, and Terence A. Zemetis. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. Given the multiplicity of Superior Court judges involved in this case in both adjudicative and party capacities, for the sake of simplicity, all references herein to the trial court are to Judge Moll unless otherwise noted. General Statutes § 52-190a provides in relevant part: "(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant's attorney, and any apportionment complainant or apportionment complainant's attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate.... "(c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action." We note that the vast majority of the allegations in the plaintiff's 105 page complaint consists of facts supporting his various due process claims arising from the handling of his first medical malpractice action, with particular attention to the actions of Judge Thomas F. Parker, judge trial referee, both on and off the bench, along with the fact that Judge Parker ultimately was not renominated to his position as a judge trial referee. Because the plaintiff's sole claim on appeal concerns the constitutionality of § 52-190a, which the trial court did not reach, we need not discuss those other allegations in any detail. "The standard of review for a court's decision on a motion to dismiss [under Practice Book § 10-30 ] is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.... When a . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.... The motion to dismiss . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.... In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Footnote omitted; internal quotation marks omitted.) Cuozzo v. Orange , 315 Conn. 606, 614, 109 A.3d 903 (2015) ; see also Miller's Pond Co., LLC v. New London , 273 Conn. 786, 789 n.5, 873 A.2d 965 (2005) (noting that motion for summary judgment, which was treated as "equivalent of a common-law motion for judgment on the pleadings," requires court to "accept as undisputed the facts pleaded in the complaint"). We note that, in 2009, the plaintiff also brought a separate mandamus action in the New London judicial district under docket number CV-09-4009523-S, challenging an earlier decision of the trial court, Abrams J. , to open a judgment of default that had been rendered against the Awwa defendants in the 2006 action on the ground that they had violated discovery orders previously rendered by Judge Hurley. See Traylor v. State , 128 Conn. App. 182, 183, 15 A.3d 1173, cert. denied, 301 Conn. 927, 22 A.3d 1276 (2011). Judge Abrams granted the Awwa defendants' motion to open because he had rendered the default judgment without reviewing their properly filed objection and subsequently determined that they had not violated any discovery orders. Id., at 184, 15 A.3d 1173. Judge Parker subsequently granted the motion to dismiss the mandamus action "because the plaintiff did not claim that any of the discovery orders could not be subject to an appeal once the malpractice action had concluded." Id., at 184-85, 15 A.3d 1173. The Appellate Court affirmed that judgment denying the writ of mandamus "because the plaintiff has failed to demonstrate that there is no other specific adequate remedy available to review the court's actions. Moreover, because the actions of the court that are complained of here may be made an issue in the plaintiff's appeal from the final judgment of the medical malpractice action, mandamus is not warranted." Id., at 186, 15 A.3d 1173. In Bennett v. New Milford Hospital, Inc. , 300 Conn. 1, 30-31 n.17, 12 A.3d 865 (2011), this court discussed, but took no position regarding, the continued viability of the holding in Votre v. County Obstetrics & Gynecology Group, P.C. , supra, 113 Conn. App. at 585-86, 966 A.2d 813, that the opinion letter requirement of § 52-190a (a) cannot be satisfied through an opinion of a similar health care provider filed with an amended pleading that was not filed at the commencement of the action. In their motion to dismiss, the Awwa defendants claimed that the Appellate Court lacked jurisdiction because there was (1) no appealable final judgment and (2) no justiciable controversy between the parties to the appeal. The Appellate Court granted the Awwa defendants' motion in an order without an opinion. The Appellate Court granted the attorney's motion to withdraw, which was filed in accordance with the plaintiff's wishes as stated during the preargument conference, and sua sponte ordered that his appeal as administrator of the estate would be dismissed unless he obtained new counsel within thirty days. The plaintiff did not obtain new counsel. The Appellate Court subsequently dismissed that portion of the appeal on August 2, 2011. On August 4, 2011, the plaintiff filed a petition for certification from that portion of the order, which this court dismissed for lack of a final appellate judgment; see General Statutes § 51-197f ; on September 28, 2011. See Traylor v. Awwa , 302 Conn. 937, 28 A.3d 989 (2011). More specifically, the claims against the state defendants in the first 2011 action were dismissed by the District Court on the ground that the plaintiff's complaint failed to state a claim under each count or each count was barred by sovereign immunity. Traylor v. Awwa , supra, 2014 WL 555358, at *12. The plaintiff appealed from this judgment to the United States Court of Appeals for the Second Circuit but withdrew that appeal on April 15, 2014. The District Court also dismissed the plaintiff's claims in the first 2011 action against the Awwa defendants. The plaintiff also appealed from this judgment to the Second Circuit, but withdrew that appeal on April 15, 2014. The District Court denied the motion to dismiss with respect to CUTPA and spoliation allegations against the Awwa defendants' insurer and attorney; see Traylor v. Awwa , 899 F. Supp. 2d 216, 224-27 (D. Conn. 2012) ; but subsequently granted a motion for summary judgment filed by these defendants. See Traylor v. Awwa , 88 F. Supp. 3d 102, 109-10 (D. Conn. 2015). The plaintiff appealed from the granting of that motion for summary judgment to the Second Circuit; the Second Circuit dismissed that appeal on November 19, 2015. The District Court remanded the remaining claims against the Knowles defendants in the first 2011 action to New London Superior Court, where they were transferred to the Complex Litigation Docket in the judicial district of Waterbury. The first 2011 action was then transferred again to the Stamford-Norwalk judicial district, where Judge Genuario granted the Knowles defendants' motion for summary judgment on October 26, 2016. On June 21, 2017, this court dismissed the plaintiff's writ of error challenging the granting of summary judgment in the first 2011 action, and the Appellate Court subsequently denied the plaintiff's motion for permission to file a late appeal from that granting of summary judgment. Specifically, the second 2011 action was instituted against numerous judges, legislators, and court employees, and the Awwa defendants' insurer, challenging rulings in the plaintiff's other cases as violations of the state and federal constitutions, along with the constitutionality of § 52-190a. See generally Traylor v. Gerratana , 148 Conn. App. 605, 88 A.3d 552, cert. denied, 312 Conn. 901, 91 A.3d 908, and cert. denied, 312 Conn. 902, 112 A.3d 778, cert. denied, - U.S. -, 135 S. Ct. 444, 190 L. Ed. 2d 336 (2014). The Appellate Court upheld the dismissal of the second 2011 action on the ground that it was barred by the doctrines of qualified and absolute judicial and legislative immunity. Id., at 612-15, 88 A.3d 552 ; see id., at 615, 88 A.3d 552 (concluding that claims against insurer were abandoned because of inadequate briefing). Particularly pertinent to the present case, the Appellate Court held that the plaintiff's claims in the second 2011 action seeking declaratory and injunctive relief against the legislative defendants on the ground that § 52-190a is unconstitutional were barred by sovereign immunity because "[n]one of the claims raised by the plaintiff allege[s] a substantial claim that clearly demonstrate[s] an incursion upon [his] constitutionally protected interests." (Internal quotation marks omitted.) Id., at 611, 88 A.3d 552. While litigation continued in the first and second 2011 actions, the plaintiff continued to apply for fee waivers in the New London judicial district to allow him to reopen the original 2006 action and to file new actions. The trial court, Cosgrove, J. , denied two of these applications pursuant to General Statutes § 52-259b (c) after a hearing, on the ground that the plaintiff "has repeatedly filed actions with respect to the same or similar matters; that these filings demonstrate an extended pattern of frivolous filings that have been without merit; that this filing is consistent with the [plaintiff's] previous pattern of frivolous filings; and that the granting of the fee waiver would constitute a flagrant misuse of [J]udicial [B]ranch resources." Traylor v. Awwa , Superior Court, judicial district of New London, Docket No. CV-06-5001159-S, 2016 WL 823033, at *4 (February 5, 2016). Ultimately, however, Judge Povadator, sitting in the Stamford-Norwalk judicial district where this case originally was filed, granted the fee waiver on March 14, 2016, which allowed the plaintiff to pursue the present action. We note that the plaintiff's conduct in responding to the motions and appearing in court was at issue before the trial court. After giving the plaintiff an additional month of time to file responsive briefs, in addition to a previous ninety day extension before its assignment to the case, the trial court then granted the plaintiff an extension of an additional sixty days, ultimately setting January 23, 2017, as a due date for briefs and February 6, 2017, as the hearing date. On February 1, 2017, the plaintiff moved for continuance of a " 'February 23' status conference" on the ground that he needed more time to prepare and represented therein that he had contacted the defendants' attorneys regarding his request but they had not responded to him. The plaintiff also indicated in a separate filing that he required a continuance because he had vision problems resulting from medication. Because there was no status conference scheduled for February 23, 2017, the trial court presumed that the plaintiff sought a continuance of the only scheduled event, namely, the February 6 hearing. On February 2, 2017, the trial court issued an order denying a continuance of the February 6 hearing, but directed the plaintiff to appear at that hearing to argue in support of his request for more time to respond, and to submit for in camera review medical documentation supporting his arguments that he "was physically unable" to participate. On February 3, 2017, the plaintiff obtained his medical records from a Veterans Affairs (VA) office and then had them sent from the New London courthouse to a court officer in Hartford via e-mail. The plaintiff then filed a "notice of compliance" stating that he would not attend the February 6 hearing, "claiming for the first time that he was unable to drive as a result of prescribed medication." At the February 6 hearing before the trial court, the court officer confirmed on the record that, on the afternoon of February 3, the plaintiff had "called him and said that he had driven to a VA office that day to obtain his medical records and that he had driven to the New London courthouse that day to have those records e-mailed to [Judge Moll's] chambers." (Emphasis in original.) Given that the plaintiff had driven a car that day and his medical records did not support any claims of vision problems, the trial court found that the plaintiff was "flagrantly disregarding the court's deadlines and the court's February 3, 2017 order denying his request to continue the February 6, 2017 hearing. Accordingly, the [trial] court proceeded with the February 6, 2017 hearing, which [the plaintiff] failed to attend." The plaintiff has not challenged that finding or the denial of additional extensions in this appeal. See footnote 18 of this opinion. As explained in Columbia Air Services, Inc. v. Dept. of Transportation , 293 Conn. 342, 349, 977 A.2d 636 (2009), this court has recognized three exceptions to sovereign immunity: "(1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity . (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights . and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority." (Citations omitted; internal quotation marks omitted.) On January 7, 2019, the plaintiff filed a motion asking us to take judicial notice of certain misrepresentations that he claimed counsel for the state and the Awwa defendants had made during oral argument in this appeal on December 13, 2018. By order dated February 27, 2019, we denied this motion. Although the plaintiff does not address the issue of standing, we note-sua sponte, because it implicates our subject matter jurisdiction; see, e.g., Fairfield Merrittview Ltd. Partnership v. Norwalk , 320 Conn. 535, 548, 133 A.3d 140 (2016) -that the trial court concluded that the plaintiff lacked standing because he had failed to allege a substantial claim that the opinion letter requirement of § 52-190a was an incursion on his constitutionally protected interests. In so concluding, the trial court relied upon the Appellate Court's decision in Traylor v. Gerratana , supra, 148 Conn. App. at 605, 88 A.3d 552, in which the Appellate Court simply concluded that the plaintiff's amended complaint in that action had made "only conclusory allegations that § 52-190a violated his constitutional rights to equal access to court, separation of powers, equal protection, due process, and a trial by jury. None of the claims raised by the plaintiff alleges a substantial claim that clearly demonstrate[s] an incursion upon [his] constitutionally protected interests." (Internal quotation marks omitted.) Id., at 611, 88 A.3d 552. We disagree with the trial court's reliance on this reasoning as applied to the present case. Having reviewed the operative complaint in this case, we conclude that the allegations in the plaintiff's complaint, taken as true-and particularly the allegation that § 52-190a creates an "economic barrier" to access to the courts, given that "[t]he average burden of cost for the prelitigation certificate of merit is $10,000 to $20,000," with a disproportionate effect on African American litigants like the plaintiff-are sufficiently specific allegations of economic injury to demonstrate an incursion upon constitutionally protected interests. See, e.g., Allco Finance Ltd. v. Klee , 861 F.3d 82, 95 (2d Cir. 2017) (allegation that state's request for proposal charged unlawful fees was injury "sufficiently 'concrete' and 'particularized' to qualify as injur[y]-in-fact"), cert. denied, - U.S. -, 138 S. Ct. 926, 200 L. Ed. 2d 203 (2018) ; E.M. v. Dept. of Education , 758 F.3d 442, 459 (2d Cir. 2014) (parent had standing to bring claim under Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., when she became "subject to a contractual obligation to pay [private school] tuition . and . incurred that obligation as a direct result of the [d]epartment's alleged failure to provide her child a [free and adequate public education]"). Given the significant expense allegedly incurred by the plaintiff, and the fact that his failure to obtain the letter at the outset of the 2006 action led to its dismissal, we also disagree with the trial court's conclusion that "the plaintiff lacks standing to challenge the constitutionality of § 52-190a because he, in fact, obtained the opinion letter required by the statute." Nevertheless, the plaintiff's failure to challenge the state defendants' other grounds for dismissal renders this standing conclusion harmless error not requiring reversal. We further note that, because the plaintiff's standing to challenge the constitutionality of § 52-190a emanates from his interests in the claims relating to the 2006 action, his opportunity to assert this constitutional challenge was in the lengthy proceedings before the trial court in the 2006 action and during the subsequent appeals. "[I]t is well settled that [f]inal judgments are . presumptively valid . and collateral attacks on their validity are disfavored.... The reason for the rule against collateral attack is well stated in these words: The law aims to invest judicial transactions with the utmost permanency consistent with justice.... Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown.... [T]he law has established appropriate proceedings to which a judgment party may always resort when he deems himself wronged by the court's decision.... If he omits or neglects to test the soundness of the judgment by these or other direct methods available for that purpose, he is in no position to urge its defective or erroneous character when it is pleaded or produced in evidence against him in subsequent proceedings." (Citation omitted; internal quotation marks omitted.) Sousa v. Sousa , 322 Conn. 757, 771, 143 A.3d 578 (2016). Put differently, under the circumstances presented in this case, any claims by the plaintiff that § 52-190a should not be applied to him because of its unconstitutionality were matters required to be asserted in the action in which the decision to apply the statute to him was made, and any challenges to the decision applying the statute to him were matters subject to direct appeal. "[I]t is now well settled that, [u]nless a litigant can show an absence of subject matter jurisdiction that makes the prior judgment of a tribunal entirely invalid , he or she must resort to direct proceedings to correct perceived wrongs . A collateral attack on a judgment is a procedurally impermissible substitute for an appeal." (Emphasis in original; internal quotation marks omitted.) Id., at 771-72, 143 A.3d 578 ; see also, e.g., In re Shamika F. , 256 Conn. 383, 406-407, 773 A.2d 347 (2001). We acknowledge that the plaintiff touched on issues of standing, collateral estoppel, and res judicata briefly during the principal and rebuttal portions of his oral argument before this court. Raising a claim at oral argument is not, however, a substitute for adequately briefing that claim. See, e.g., Studer v. Studer , 320 Conn. 483, 493 n.11, 131 A.3d 240 (2016) ("[i]t is well settled that claims on appeal must be adequately briefed, and cannot be raised for the first time at oral argument before the reviewing court" [internal quotation marks omitted] ). We note that the plaintiff's appeal form specifies both "[f]inal judgment" and "the decision regarding [the plaintiff's] motion for an extension of time due to illness"; see footnote 13 of this opinion; as the challenged actions of the trial court. The plaintiff has not, however, addressed the denial of his requested extensions of time in his brief. Accordingly, we deem any challenges to that discretionary decision similarly abandoned. We note that the Appellate Court has previously rejected a similar constitutional challenge to the good faith certificate requirement of § 52-190a under the open courts provision of the state constitution; see Conn. Const. art. I, § 10 ; and the due process clauses of the federal and state constitutions. See Lohnes v. Hospital of Saint Raphael , 132 Conn. App. 68, 81-84, 31 A.3d 810 (2011), cert. denied, 303 Conn. 921, 34 A.3d 397 (2012).

12492652

Hudel GAMBLE v. COMMISSIONER OF CORRECTION

Gamble v. Comm'r of Corr.

2018-01-23

AC 39971

227

238

179 A.3d 227

179

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.410267+00:00

Fastcase

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

Hudel GAMBLE v. COMMISSIONER OF CORRECTION

Hudel GAMBLE v. COMMISSIONER OF CORRECTION AC 39971 Appellate Court of Connecticut. Argued October 5, 2017 Officially released January 23, 2018 Jade N. Baldwin, for the appellant (petitioner). Jo Anne Sulik, supervisory assistant state's attorney, with whom, on the brief, were Adrienne Russo, assistant state's attorney, and Patrick J. Griffin, state's attorney, for the appellee (respondent). DiPentima, C.J., and Alvord and Pellegrino, Js.

5260

32301

DiPENTIMA, C.J. The petitioner, Hudel Gamble, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly rejected his claim of ineffective assistance of appellate counsel. We are not persuaded by the petitioner's arguments, and, accordingly, affirm the judgment of the habeas court. The following facts and procedural history are relevant to the resolution of the petitioner's appeal. On November 29, 2005, Daniel Smith was driving a borrowed BMW in New Haven while Ricardo Ramos was seated in the front passenger seat. The petitioner later joined Ramos and Smith, and sat in the back seat. The petitioner, Ramos, and Smith proceeded to joyride around the "Hill" section of New Haven while smoking marijuana. At that time, both the petitioner, who was seventeen years old, and Ramos, who was fifteen years old, were residents of the "Hill" section of New Haven. Ramos had known the petitioner and Smith for two to three years and would see both the petitioner and Smith on a daily basis. At some point, Smith drove into the "Tre" section of New Haven. Ramos noticed an acquaintance of his on Kensington Street, and Smith stopped the BMW. The woman stated in a loud voice that a man with whom Ramos had a "beef" was in the area. Smith drove around the block and upon returning to Kensington Street, Ramos spotted the victim, whom he believed had killed his cousin in the "Hill" section over a month earlier. The victim was with a group of four or five individuals who were standing to the right of the BMW. Someone from the group fired shots at the BMW. The petitioner, Ramos, and Smith all returned fire. The victim sustained five gunshot wounds due to the entry, exit, and reentry of bullets, and ultimately died. The medical examiner recovered three different types of bullets from the victim's body. Ballistics evidence revealed that one of the three bullets recovered from the victim's body was damaged, but that it had the characteristics of a .22 long rifle caliber bullet. Ballistics testing of the damaged bullet revealed that it could have been fired from various handguns, revolvers, semi-automatic pistols, and several types of long arms. This bullet entered the victim's right knee. A .38 caliber bullet, which ballistics testing revealed could have been fired from either a .38 revolver or a .357 magnum caliber revolver, entered the victim's right hip. A .30 caliber bullet, which ballistics testing established was fired from an SKS semiautomatic rifle that the police found under Ramos' bed following the shooting, traveled through the victim's right arm, reentered the right side of his chest, went through his right lung and grazed his diaphragm and liver. The official cause of the victim's death was from multiple gunshot wounds. The medical examiner testified that the victim's injuries to his knee and hip were treatable, but that the medical personnel were unable to treat successfully the victim's chest injury. The day after the shooting, Ramos learned that the victim was unknown to him and was not the individual with whom he had a "beef." The police did not find any latent fingerprints on the SKS rifle or its magazine. The jury found the petitioner guilty of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes § 53a-55 (a) (3) and 53a-8. The petitioner was also charged with, and found not guilty of, manslaughter in the first degree with a firearm in violation of § 53a-55 (a) (3), murder and murder as an accessory in violation of General Statutes § 53a-54a and 53a-8, conspiracy to commit murder in violation of General Statutes § 53a-54a and 53a-48 (a), possession of an assault weapon in violation of General Statutes § 53-202c and 53a-8, and conspiracy to possess an assault weapon in violation of § 53-202c and 53a-48 (a). The court, Holden , J. , sentenced the petitioner to thirty-seven and one-half years incarceration. The petitioner, represented by Attorney William Westcott, unsuccessfully appealed his conviction. See State v. Gamble , 119 Conn. App. 287, 987 A.2d 1049, cert. denied, 295 Conn. 915, 990 A.2d 867 (2010). On August 25, 2016, the petitioner filed a third amended petition for a writ of habeas corpus, alleging the ineffective assistance of appellate counsel. He alleged that his appellate counsel provided ineffective assistance by failing to raise a claim of insufficient evidence on direct appeal. At the habeas trial, Westcott testified that he did not raise a sufficiency claim on direct appeal because he had not prevailed on a similar claim in a different appeal in which a defendant, who was convicted as an accessory, was part of a group of individuals who all fired shots at the victim, who they were "out to get." Attorney Daniel Krisch testified for the petitioner as an expert in appellate practice. He testified that the only evidence of the petitioner's aiding the principal was that he had handed Ramos a .22 caliber pistol which had caused the treatable injury to the victim's knee. He further testified that no reasonable jury could have convicted the petitioner of manslaughter as an accessory, and there was a reasonable probability that an insufficiency claim would have been successful on direct appeal. On November 28, 2016, the habeas court, Sferrazza, J., issued a memorandum of decision denying the petition for a writ of habeas corpus. The court stated that "[w]here multiple shooters intentionally fire at someone, all the shooters can properly be convicted, through accessorial liability, of the homicide even though it was a companion's bullet that killed the victim. State v. Delgado , 247 Conn. 616, 627, [725 A.2d 306] (1999). Such a show of force aids the killer by eliminating or reducing methods of escape, by deterring others from attempting to assist the victim, and by thwarting detection through the confusion generated by such a fusillade." The court concluded that the petitioner could not prevail on his claim because he failed to prove prejudice under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court granted the petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary. On appeal, the petitioner claims that the habeas court improperly concluded that he failed to establish that his appellate counsel was ineffective by not raising insufficiency of evidence as an issue in his direct appeal. He contends that the court improperly concluded that he failed to prove that he was prejudiced by his appellate counsel's performance. We disagree. We begin by setting forth our standard of review and the legal principles applicable to the petitioner's appeal. "Although a habeas court's findings of fact are reviewed under the clearly erroneous standard of review . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact.... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard." (Citation omitted; internal quotation marks omitted.) Ham v. Commissioner of Correction , 301 Conn. 697, 706, 23 A.3d 682 (2011). "In Strickland v. Washington , [supra, 466 U.S. at 687, 104 S.Ct. 2052], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense [by establishing a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different].... Unless a [petitioner] makes both showings, it cannot be said that the conviction . resulted from a breakdown in the adversary process that renders the result unreliable." (Internal quotation marks omitted.) Parrott v. Commissioner of Correction , 107 Conn. App. 234, 236, 944 A.2d 437, cert. denied, 288 Conn. 912, 954 A.2d 184 (2008). With respect to the prejudice prong, "we must assess whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed [on] . appeal, i.e., [obtaining] reversal of his conviction or granting of a new trial." Small v. Commissioner of Correction , 286 Conn. 707, 722, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz , 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). "[T]he task before us is not to conclude definitively whether the petitioner, on appeal, would have prevailed on his claim . Rather, the task before us is to determine, under Strickland , whether there is a reasonable probability that the petitioner would have prevailed on appeal." (Emphasis omitted.) Id., at 731, 946 A.2d 1203. "To ascertain whether the petitioner can demonstrate such a probability, we must consider the merits of the underlying claim." Id., at 728, 946 A.2d 1203. Underlying the petitioner's claim of ineffectiveness by appellate counsel is that there was insufficient evidence to support the petitioner's conviction of manslaughter in the first degree with a firearm as an accessory. "In reviewing a sufficiency [of the evidence] claim, 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." (Internal quotation marks omitted.) State v. Abraham , 64 Conn. App. 384, 400, 780 A.2d 223, cert. denied, 258 Conn. 917, 782 A.2d 1246 (2001). "A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender." General Statutes § 53a-8 (a). This court has explained accessorial liability as follows: "To be guilty as an accessory, one must share the criminal intent and community of unlawful purpose with the perpetrator of the crime and one must knowingly and wilfully assist the perpetrator in the acts which prepare for, facilitate or consummate it.... Whether a person who is present at the commission of a crime aids or abets its commission depends on the circumstances surrounding his presence there and his conduct while there.... "Since under our law both principals and accessories are treated as principals . if the evidence, taken in the light most favorable to sustaining the verdict, establishes that [the defendant] committed the [crime] charged or did some act which forms . a part thereof, or directly or indirectly counseled or procured any persons to commit the offenses or do any act forming a part thereof, then the [conviction] must stand." (Citation omitted; internal quotation marks omitted.) State v. Gonzalez , 135 Conn. App. 101, 107-108, 41 A.3d 340 (2012), aff'd, 311 Conn. 408, 87 A.3d 1101 (2014). "[A]ccessorial liability is predicated upon the actor's state of mind at the time of his actions, and whether that state of mind is commensurate to the state of mind required for the commission of the offense." State v. Foster , 202 Conn. 520, 532, 522 A.2d 277 (1987). General Statutes § 53a-55 (a) provides in relevant part: "A person is guilty of manslaughter in the first degree when . (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." Accordingly, to be guilty of manslaughter as an accessory under this subsection, the petitioner must recklessly engage in conduct which created a grave risk of death to another and intentionally aid in the death of the victim. At the center of the petitioner's claim on appeal is the testimony of Ramos, a key witness for the state, and the only person who was in the BMW at the time of the shooting who testified. Ramos testified that the petitioner had given him a loaded .22 caliber pistol earlier on the day of the shooting when the two had met on the street. According to Ramos' testimony, Ramos fired a .22 caliber pistol two or three times, Smith reached across Ramos and fired a .357 caliber gun two or three times out of the open passenger side window and the petitioner fired shots from an SKS rifle while it rested on the open backdoor window of the BMW. The petitioner claims that he was prejudiced by his appellate counsel's failure to raise a sufficiency claim because the evidence was insufficient to convict him of manslaughter under an accessorial theory of liability. Specifically, he argues that because Ramos testified that the petitioner fired the SKS rifle from which the fatal shot was fired, the evidence could only support conviction of manslaughter as a principal and could not support his conviction under an accessorial theory of liability. He further argues that the only evidence that he acted as an accessory was Ramos' testimony that the petitioner had handed Ramos a loaded .22 pistol prior to the shooting. That event, the petitioner argues, could not establish the element of aiding in the victim's death because the .22 caliber bullet caused a nonfatal knee injury. He further argues that the evidence was insufficient to support his conviction because he was acquitted on the other charges and, in so arguing, raises the issue of collateral estoppel. The petitioner's arguments are unavailing. Ramos' testimony that the petitioner handed him a loaded .22 caliber pistol is not, as the petitioner argues, the only evidence supporting an accessorial theory of liability. In examining the underlying claim, we conclude that there was sufficient evidence to support his conviction of manslaughter as an accessory under a concert of action theory. Under a concert of action theory, it is immaterial who fired the fatal shot; what is material is whether the evidence shows that the petitioner acted with others to bring about the death of the victim. "[A] showing of concert of action between a defendant and [others] can provide a sufficient basis for accessorial liability." State v. Ashe , 74 Conn. App. 511, 518, 519, 812 A.2d 194 (evidence that defendant acted in concert with others with intent to kill rival gang members sufficient to support murder conviction under accessorial theory of liability), cert. denied, 262 Conn. 949, 817 A.2d 108 (2003) ; see also State v. Diaz , 237 Conn. 518, 544, 679 A.2d 902 (1996) ("Although the evidence did not clearly demonstrate which of the perpetrators actually fired the shot that fatally injured [the victim], the evidence did establish that the defendant and his companions together prepared and readied themselves for the ambush . [and] fir[ed] repeatedly into the vehicle with the intent to kill one or more of the passengers.... [Thus, the evidence] show[ed] sufficient concert of action between the defendant and his companion[s] to support . the accessory allegation ." [Internal quotation marks omitted.] ). The evidence, when viewed in the light most favorable to sustaining the verdict, shows the following. The petitioner, Ramos, and Smith were joyriding together in the "Hill" section of New Haven. Smith drove to the "Tre" section of New Haven where a woman informed Ramos that the victim was in the area. Ramos believed that the victim had killed his cousin over a month earlier in the "Hill" section of New Haven. The three young men searched for the victim. Smith circled the block and Ramos spotted the victim on Kensington Street. A member of the victim's group fired shots at the BMW. The petitioner, Ramos, and Smith all fired shots at the victim. Medical and ballistics evidence revealed that the victim sustained gunshot wounds from three different caliber bullets which had been fired from three different model guns. The habeas court aptly stated: "Where multiple shooters intentionally fire at someone, all the shooters can properly be convicted, through accessorial liability, of the homicide ." The petitioner argues that the concert of action theory, as expressed in State v. Delgado, supra, 247 Conn. at 622, 725 A.2d 306, is inapplicable to the present case. In Delgado, the victim was shot in the back of his leg and the back of his arm, and died from loss of blood due to the gunshot wounds. Id., at 620, 725 A.2d 306. This court concluded that "[a]lthough the evidence did not reveal whether it was the defendant or [a fellow gang member] who had fired the shot that fatally injured the victim, the jury reasonably could have determined that there was sufficient concert of action between the defendant and [the fellow gang member] to support the accessory allegation." Id., at 623, 725 A.2d 306. The petitioner argues that because there was no confusion in the present case that the fatal shot was fired from the SKS rifle, the concert of action theory could not support his conviction under an accessorial theory of liability. We are not persuaded. The fact that medical and ballistics evidence revealed that the fatal shot was fired from an SKS rifle does not prevent the application of the concert of action theory. The jury reasonably could have been uncertain as to which individual fired the fatal shot from the SKS rifle. Moreover, the jury did not need to determine who fired the fatal shot in order to find the petitioner guilty of manslaughter under an accessorial theory of liability. The gravamen of the petitioner's argument is that the evidence supported a conviction of him as the principal and, therefore, the evidence was insufficient to support his conviction of manslaughter as an accessory. In State v. Hamlett , 105 Conn. App. 862, 867, 939 A.2d 1256, cert. denied, 287 Conn. 901, 947 A.2d 343 (2008), the defendant claimed that the trial court erred in denying his motion for acquittal on his conviction of assault in the first degree because the evidence showed that he was the principal shooter and, therefore, he could not be found guilty as a "mere" accessory. Id., at 867, 939 A.2d 1256. This court noted that it was reasonable that the jury was unable to determine who shot the victim and concluded that the evidence was sufficient to support a conviction of assault as a principal or accessory because the defendant and another man confronted the victim with guns and the victim suffered gunshot wounds. Id., at 867-68, 939 A.2d 1256. The court rejected the defendant's argument that evidence sufficient to convict the defendant as a principal would be insufficient to convict him under an accessorial theory of liability. Id., at 869, 939 A.2d 1256. The court concluded: "Connecticut long ago adopted the rule that there is no practical significance in being labeled an accessory or a principal for the purpose of determining criminal responsibility.... The modern approach is to abandon completely the old common law terminology and simply provide that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime.... Connecticut has taken the same approach through General Statutes § 53a-8.... There is no meaningful distinction between principal and accessory liability; they are simply theories for proving criminal liability. Given that a defendant may be convicted as an accessory even though he was charged only as a principal . we reject his argument that evidence sufficient to convict a defendant as a principal would be insufficient for a conviction under the theory of accessory liability." (Citations omitted; internal quotation marks omitted.) Id., at 868-69, 939 A.2d 1256. In this case, the jury expressed uncertainty as to principal and accessorial liability. The court instructed the jury on the manslaughter charge under both principal and accessorial theories of liability. The jury initially indicated on the verdict form that the petitioner was not guilty on all counts. The foreperson then explained that "something [was] wrong." The court informed the jury to communicate its concerns to the court via a note. The foreperson stated in a note that the jury had reached a verdict on manslaughter as an accessory, and was waiting to hear the clerk read that charge. The court recalled the jury and the verdict was vacated and rerecorded. The court then divided the manslaughter charge into principal and accessorial liability. The jury found the petitioner not guilty of manslaughter as a principal and guilty of manslaughter as an accessory. The jury's concern and the court's resultant division of the manslaughter charge does not alter the longstanding principle expressed in Hamlett that, as a matter of law, there is no meaningful distinction between principal and accessorial liability. See id., at 869, 939 A.2d 1256. We conclude that there was sufficient evidence that the petitioner acted in concert with Ramos and Smith to achieve the intended result, the death of the victim. The petitioner also argues that the evidence is insufficient to support his conviction of manslaughter as an accessory because the jury acquitted him of both manslaughter as a principal and possession of an assault weapon. The petitioner argues that because of his acquittals, this court is collaterally estopped from examining the issue of whether he possessed or fired the SKS rifle, which the legislature defines as an "assault weapon." See General Statutes § 53-202a et seq. The petitioner further argues that this court, when reviewing the sufficiency claim, likewise cannot examine whether he fired the .22 pistol or the .357 revolver because the court granted the petitioner's motion for acquittal as to the charge of carrying a pistol without a permit. The doctrine of collateral estoppel does not apply to a review of the sufficiency of the evidence. "[C]ollateral estoppel principles do not apply in a single trial to preclude a verdict of guilty on an offense which includes elements in common with an offense for which the jury has returned a verdict of not guilty." State v. Ortiz , 29 Conn. App. 825, 836 n.6, 618 A.2d 547 (1993). As a result, the petitioner's acquittals do not preclude this court from examining all the evidence presented at trial when analyzing a claim challenging the sufficiency of the evidence. See id. ; see also State v. Stevens , 178 Conn. 649, 653-56, 425 A.2d 104 (1979) (jury verdict acquitting defendant of larceny does not bar conclusion on appeal that sufficient evidence existed to support conviction of conspiracy to commit larceny). Furthermore, we cannot review any inconsistencies among the verdicts in this case. "In [ State v. Arroyo , 292 Conn. 558, 583, 585-86, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S.Ct. 1296, 175 L.Ed.2d 1086 (2010) ] the Supreme Court affirmed its holdings in State v. Whiteside , 148 Conn. 208, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33 (1961), and State v. Rosado , 178 Conn. 704, 425 A.2d 108 (1979), that factually and logically inconsistent verdicts are permissible.... The Arroyo court also held that legally inconsistent verdicts are permissible and, thus, not reviewable, adopting the rule of United States v. Powell , 469 U.S. 57, 69, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984)." (Citation omitted; internal quotation marks omitted.) State v. Acosta , 119 Conn. App. 174, 187, 988 A.2d 305, cert. denied, 295 Conn. 923, 991 A.2d 568 (2010). "The law permits inconsistent verdicts because of the recognition that jury deliberations necessarily involve negotiation and compromise.... [I]nconsistency of the verdicts is immaterial.... That the verdict may have been the result of compromise, or a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters." (Citation omitted; internal quotation marks omitted.) State v. Knight , 266 Conn. 658, 670, 835 A.2d 47 (2003). We conclude that it was not reasonably probable that the petitioner would have prevailed on direct appeal on a sufficiency claim and, therefore, the petitioner has not demonstrated that he was prejudiced by Westcott's failure to raise that claim on direct appeal. Accordingly, we conclude that the habeas court properly rejected the petitioner's claim of ineffective assistance of appellate counsel. The judgment is affirmed. In this opinion the other judges concurred. There was evidence at the petitioner's criminal trial that Stevens Street and nearby Congress Street, where, respectively, Ramos and the petitioner lived at the time, were both in the "Hill" section of New Haven. Ramos testified at the petitioner's criminal trial that Kensington Street was in the "Tre" section of New Haven, and that driving on Orchard Street was a common route used to travel from the "Hill" section to the "Tre" section. On direct appeal, Westcott claimed that the trial court improperly: "(1) accepted the jury's verdict finding [the petitioner] guilty of manslaughter in the first degree with a firearm under the theory of accessorial liability and not guilty of the same crime under the theory of principal liability, thereby (a) violating his right against double jeopardy, (b) resulting in his being convicted of the nonexistent crime of being an 'accessory,' (c) resulting in a legally inconsistent verdict and (d) returning a verdict in violation of the principles of collateral estoppel, and (2) suggested in its jury instructions that defense counsel had made an improper closing argument, thereby improperly highlighting the defendant's decision not to testify." State v. Gamble , supra, 119 Conn. App. at 289. The petitioner also alleged ineffective assistance by his criminal trial counsel. After the habeas court denied his petition in its entirety, the petitioner filed an appeal challenging only the court's denial of his claim of ineffective assistance of appellate counsel. The petitioner did not testify at his criminal trial, and Smith invoked his right to remain silent pursuant to the fifth amendment to the United States constitution when the prosecutor called him as a witness. General Statutes § 53a-8 (b) provides: "A person who sells, delivers or provides any firearm, as defined in subdivision (19) of section 53a-3, to another person to engage in conduct which constitutes an offense knowing or under circumstances in which he should know that such other person intends to use such firearm in such conduct shall be criminally liable for such conduct and shall be prosecuted and punished as if he were the principal offender." The petitioner also argues that the habeas court erred in stating that the evidence at the petitioner's criminal trial supported a finding that the petitioner fired the SKS rifle from the same vehicle from which the fatal shot was fired "by another individual." He argues that this finding is internally inconsistent because the fatal shot was fired from the SKS rifle, and therefore the petitioner could not have both fired the SKS rifle and not have fired the fatal shot. Although the evidence at the petitioner's criminal trial indicated that the fatal shot was fired from the SKS rifle, a finding as to which individual fired the fatal shot is not material to the legal conclusion in this case because accessorial liability is based on a concert of action theory. See Seligson v. Brower , 109 Conn. App. 749, 753 n.2, 952 A.2d 1274 (2008). The petitioner also argues that during the criminal trial, the prosecutor relied on the theory that the petitioner was the principal actor in the manslaughter and that in this habeas proceeding, the respondent, the Commissioner of Correction, changed the state's theory of liability by presenting a new theory that the petitioner may not have been the principal actor. We disagree. The respondent did not depart from the state's theory of liability. First, during closing arguments, the prosecutor discussed the concepts of principal and accessorial liability and explained that one can be an accessory when he is part of a joint effort. Second, there is no meaningful distinction between principal and accessorial liability. See State v. Hamlett , 105 Conn. App. 862, 867, 939 A.2d 1256, cert. denied, 287 Conn. 901, 947 A.2d 343 (2008). The jury had for its consideration conflicting accounts as to who fired the SKS rifle. The petitioner's statement to police indicates that Ramos fired the SKS rifle. The petitioner indicated in his statement to police that he, Ramos, and Smith were joyriding in a BMW and that after a group fired guns at the BMW, Ramos returned fire using a black gun that was "at . best . an automatic." There was evidence that the SKS rifle was heavy and unwieldy; and defense counsel argued during closing argument that the petitioner was unable to maneuver the weapon. Ramos testified at trial that he did not see the petitioner with a firearm when he entered the BMW, and testified the petitioner fired the SKS rifle. Ramos conceded on cross-examination that he had given different versions of events to police and that he had informed police that the petitioner had fired the SKS rifle only after the police had found the SKS rifle under his bed. Ramos testified at trial that the petitioner and Smith told him to take the SKS rifle from the back seat of the BMW, and he grabbed it and put it under his bed. Ramos further testified that the petitioner and Smith dropped Ramos off following the shooting, circled around the block to Ramos' residence, and told Ramos to grab the SKS from the back seat of the BMW and that he grabbed it and placed it under his bed. The petitioner argues that no evidence existed that he shot any weapon other than the SKS rifle. The petitioner's statement to the police, if believed, indicated that Ramos fired the SKS rifle. Furthermore, the victim's injuries indicated that shots had been fired from three different types of firearms. Ed Beamon, a New Haven resident, testified that in the early evening of November 29, 2005, he was sitting on his neighbor's front porch on Kensington Street when he heard shots being fired, and he ran out to the victim and observed shots being fired from the front and rear passenger sides of a "maroon" car. The petitioner admitted in his statement to police that he was seated in the back seat of the BMW during the shooting. The jury reasonably could have inferred that the petitioner fired one of the three weapons. The petitioner's trial counsel argued before the trial court that the state presented no evidence that the petitioner did not have a permit and, therefore, the petitioner should be acquitted of the charge of carrying a pistol without a permit. The state agreed. The court found that there was no evidence supporting any of the elements of the charge. The petitioner further argues that the habeas court erred in failing to address the deficiency prong of Strickland and should have found that appellate counsel's performance was deficient. Because the habeas court properly determined that the petitioner had failed to prove prejudice, it was not required to address the performance prong. "Because both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong." King v. Commissioner of Correction , 73 Conn. App. 600, 602-603, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003).

12492651

STATE of Connecticut v. Vaughn OUTLAW

State v. Outlaw

2018-01-23

AC 38419

219

227

179 A.3d 219

179

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.410267+00:00

Fastcase

DiPentima, C.J., and Lavine and Harper, Js.

STATE of Connecticut v. Vaughn OUTLAW

STATE of Connecticut v. Vaughn OUTLAW AC 38419 Appellate Court of Connecticut. Argued October 4, 2017 Officially released January 23, 2018 Mary A. Beattie, assigned counsel, for the appellant (defendant). Sarah Hanna, assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Andrew Reed Durham, assistant state's attorney, for the appellee (state). DiPentima, C.J., and Lavine and Harper, Js.

4214

26197

HARPER, J. The defendant, Vaughn Outlaw, appeals from the judgment of conviction, rendered after a jury trial, of assault public safety personnel in connection with his assault of an employee of the Department of Correction (department) in violation of General Statutes § 53a-167c (a) (5). On appeal, the defendant asserts that the court committed plain error when it did not include detailed language on the use of unwarranted or excessive force as part of its instructions to the jury on the second element of § 53a-167c (a) (5), which pertains to whether the employee was acting in the performance of his duties. The state contends that the defendant explicitly waived his claim at trial and failed to demonstrate that the court committed an obvious error resulting in manifest injustice. Because we agree with the state's latter argument, we affirm the judgment of the trial court. The jury reasonably could have found the following facts. On December 1, 2013, correction officers Thomas Langlois (victim) and Katie McClellan were escorting the defendant back from the shower room to his cell at Northern Correctional Institute. After returning the defendant back to his cell, the victim removed the defendant's leg shackles and stood outside the cell door. McClellan and the victim testified that the defendant, who was instructed to remain on the bed, followed the victim toward the cell door and spat on the victim's face, mouth and eyes before the door closed. Security footage of the incident was shown to the jury. On April 8, 2015, following a jury trial, the defendant was convicted of assault of public safety personnel in violation of § 53a-167c (a) (5). On June 25, 2015, the court sentenced the defendant to forty-two months of incarceration to be served consecutively with the sentence he was already serving. This appeal followed. On appeal, the defendant asserts that because he had testified that the victim used excessive force, the court committed plain error when it failed to include in its jury instructions, as part of the second element of § 53a-167c (a) (5), the "detailed language explaining that any unwarranted or excessive force is not within the performance of the officer's duties." (Emphasis omitted.) As a result of this omission, the defendant argues the jury may have been misled into believing that the victim was performing his duties as a correction officer when he allegedly mishandled and "monkey pawed" the defendant while escorting him to and from his cell. See footnote 3 of this opinion. The state contends, inter alia, that the defendant cannot establish that the court committed plain error by failing to provide the requested instruction because the defendant explicitly informed the court that he was not seeking a detailed instruction on self-defense to the assault charge. The following additional facts are necessary for our discussion. The record reflects that the court had provided counsel with a draft of its proposed jury instructions on April 2, 2015. Thereafter, on April 6, 2015, the court held an in-chambers conference to discuss "some things relating to the charge ." On April 7, 2015, during an on-the-record discussion between the court and defense counsel regarding the jury instructions, the following exchange occurred: "The Court: There is sometimes a self-defense portion utilized in defining in the performance of duties. As I understand it, that's not being requested by the defendant in this case; am I correct? "[Defense Counsel]: Yes, Your Honor. "The Court: So that's out. All right." On April 8, 2015, after completing its charge, the court asked the parties, outside the presence of the jury, if they had any exceptions to the charge. The defendant objected only to the intent element of the charge. I As an initial matter, we address the state's assertion that the defendant explicitly waived his claim by "inform[ing] the trial court that he was not seeking the instruction that he now claims was plain error not to provide." We conclude that although the defendant is not entitled to an instruction based on a theory of self-defense, it is unclear from the record whether the defendant explicitly waived his claim that the court failed to include a detailed instruction on a theory of defense that the victim was not acting within the performance of his duties when he allegedly used unreasonable or unnecessary physical force. Both parties agree that "when a defendant has been charged only with violations of § 53a-167c... he is not entitled to an instruction on self-defense." State v. Davis , 261 Conn. 553, 573, 804 A.2d 781 (2002) ; State v. Baptiste , 133 Conn. App. 614, 626 n.16, 36 A.3d 697 (2012), appeal dismissed, 310 Conn. 790, 83 A.3d 591 (2014) ; State v. Salters , 78 Conn. App. 1, 5, 826 A.2d 202, cert. denied, 265 Conn. 912, 831 A.2d 253 (2003). Rather, "[o]ur Supreme Court has determined that in a case in which a defendant is charged with assault of a peace officer or interfering with an officer, in lieu of a self-defense instruction , the court must provide a detailed instruction that the state must establish that the police officer had been acting in the performance of his duty and that a person is not required to submit to the unlawful use of physical force during the course of an arrest ." (Emphasis added; internal quotation marks omitted.) State v. Dunstan , 145 Conn. App. 384, 390, 74 A.3d 559, cert. denied, 310 Conn. 958, 82 A.3d 626 (2013). "This court has further concluded that an officer's exercise of reasonable force is inherent in the performance of duties, and therefore unreasonable and unnecessary force by a police officer would place the actions outside the performance of that officer's duties." Id. ; see also State v. Davis , supra, at 571, 804 A.2d 781 ("a detailed instruction that the state must establish that the police officer had been acting in the performance of his duty and that a person is not required to submit to the unlawful use of physical force during the course of an arrest . stands in lieu of a self-defense instruction"); State v. Baptiste , supra, at 627, 36 A.3d 697 ("[o]ur Supreme Court has determined that a defendant is entitled to a detailed instruction on the element of 'in the performance of his duties' in lieu of an instruction regarding self-defense"); State v. Salters , supra, at 9, 826 A.2d 202 ("[t]he proper defense . was that [the correction officer] was not acting within the performance of his duties when he used physical force on the defendant"). "The rationale behind our Supreme Court's determination in Davis was based on the requirement that the state must prove beyond a reasonable doubt that the officer was acting in the performance of his duties as an element of § 53a-167c and the fact that excessive or unreasonable physical force by the officer would place his actions outside the performance of his duties.... The defendant would be entitled to an acquittal if the state failed to prove that the use of force was within the performance of the officer's duties." (Citation omitted; footnote omitted.) State v. Salters , supra, 78 Conn. App. at 5-6, 826 A.2d 202. "A correctional officer, therefore, is statutorily authorized to use reasonable physical force in the performance of his duties. Clearly, if the defendant claimed that the force used was excessive or unnecessary, the proper defense in this case would have been that [the correction officer's] use of physical force on the defendant was not in the performance of his duties." (Emphasis added.) Id., at 8, 826 A.2d 202. For this reason, the colloquy that occurred regarding the defense instruction appears ambiguous. When the court asked whether the defendant was seeking a "self-defense portion utilized in defining in the performance of duties" and requested clarification that it is "not being requested by the defendant in this case," defense counsel responded "yes." One interpretation of defense counsel's response is that the defendant explicitly was affirming that he had not requested a self-defense instruction, to which the parties knew, as a matter of law, he was not entitled. Another interpretation is that the defendant explicitly was waiving his claim of unreasonable or unnecessary physical force, because the court's question focused specifically on "defining in the performance of duties" as pertaining to the second element of § 53a-167c. See footnote 6 of this opinion. In the absence of contrary evidence, "[j]udges are presumed to know the law . and to apply it correctly." (Internal quotation marks omitted.) In re Harlow P. , 146 Conn. App. 664, 674 n.3, 78 A.3d 281, cert. denied, 310 Conn. 957, 81 A.3d 1183 (2013) ; accord State v. Reynolds , 264 Conn. 1, 29 n.21, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004). Nevertheless, on the basis of this brief colloquy alone, the record is unclear as to whether the defendant was (1) agreeing with the court that he was not entitled to a theory of self-defense; (2) explicitly waiving his claim for a detailed instruction on a defense of unreasonable or unnecessary physical force in defining the performance of duties; or (3) doing both. Although we are unable to make a determination as to explicit waiver, for the reasons set forth in part II of this opinion, we conclude that the defendant cannot prevail on his claim of plain error. II The defendant seeks to prevail on his unpreserved claim of instructional error pursuant to the plain error doctrine. We initially note that, in State v. Kitchens , 299 Conn. 447, 482-83, 10 A.3d 942 (2011), our Supreme Court concluded that "when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal." Our review of the record shows that the court gave the parties its draft instructions five days in advance, provided ample opportunity for their review and solicited comments from counsel. The defendant raised an objection only to the intent element of the jury charge. Although the record is unclear as to whether the defendant explicitly waived his claim of instructional error, he nevertheless implicitly waived his claim pursuant to the standard set forth in Kitchens . Recently, however, our Supreme Court reasoned in State v. McClain , 324 Conn. 782, 815, 155 A.3d 209 (2017), that a Kitchens waiver does not foreclose claims of plain error. As such, we consider the defendant's claim of instructional error under the plain error doctrine. "It is well established that the plain error doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved [and nonconstitutional in nature], are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine . is not . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment . for reasons of policy.... In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Plain error is a doctrine that should be invoked sparingly." (Footnote omitted; internal quotation marks omitted.) State v. Jamison , 320 Conn. 589, 595-96, 134 A.3d 560 (2016). There are two prongs of the plain error doctrine; an appellant cannot prevail under the plain error doctrine "unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Emphasis in original; internal quotation marks omitted.) Id., at 597, 134 A.3d 560 ; accord State v. McClain , supra, 324 Conn. at 812, 155 A.3d 209. "With respect to the first prong, the claimed error must be patent [or] readily [discernible] on the face of a factually adequate record, [and] also . obvious in the sense of not debatable.... With respect to the second prong, an appellant must demonstrate that the failure to grant relief will result in manifest injustice." (Citations omitted; internal quotation marks omitted.) State v. Jackson , 178 Conn. App. 16, 20-21, 173 A.3d 974 (2017). In the present case, the defendant states: "Plain error occurred when the trial court did not instruct the jury that any unwarranted or excessive force by [the victim] was not within the performance of his duties. This instructional language was required by the facts of the case and settled case law." The essence of the defendant's argument is that because he had testified that the victim mishandled and "monkey pawed" him-allegations of unwarranted or excessive force-the victim was not acting in performance of his duties as a correction officer when the defendant spat on the victim; thus, a reasonable jury could determine that the second element of § 53a-167c was not satisfied when the assault occurred. The defendant contends that the court failed to provide the detailed instruction in element two of the Connecticut Criminal Jury Instructions 4.3-1. "To prevail under the first prong of a plain error analysis, an appellant must demonstrate that the alleged error is obvious in the sense of not debatable.... [T]his inquiry entails a relatively high standard, under which it is not enough for the [appellant] simply to demonstrate that his position is correct. Rather, the [appellant] must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal." (Internal quotation marks omitted.) State v. Jackson , supra, 178 Conn. App. at 24, 173 A.3d 974. The court's instruction to the jury, which appears to mirror the criminal jury instructions, instructed that "there was testimony that [the victim] had concluded escorting [the defendant] to his cell from the shower area at the time of the alleged saliva, spitting or hurling." The jury heard testimony from McClellan, the victim and the defendant regarding the events surrounding the assault and made a credibility determination. More importantly, the defendant never raised this defense of unreasonable or unnecessary physical force at any point during the trial proceedings. We also note a temporal disconnect in the defendant's argument. The defendant argues that because the victim mishandled him while escorting him to and from the shower room and "monkey pawed" him after taking off his leg shackles-actions that occurred and concluded prior in time to his spitting on the victim while he was standing outside the cell door-the victim therefore was not acting in the performance of his duties at the time of the assault. This retaliatory conduct stands in contrast to the application of this defense as discussed in State v. Davis , supra, 261 Conn. at 557, 804 A.2d 781 (defendant fought with police officers during arrest); State v. Baptiste , supra, 133 Conn. App. at 618, 36 A.3d 697 (defendant fought with police officers during drug investigation); State v. Salters , supra, 78 Conn. App. at 3, 826 A.2d 202 (defendant fought with correction officers during melee). We conclude that the defendant has not established the required patent or readily discernible error in the jury instruction as to warrant the extraordinary remedy of reversal. In summary, under the plain error doctrine, we do not find that the court committed any error, let alone error "so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Internal quotation marks omitted.) State v. Jamison , supra, 320 Conn. at 596, 134 A.3d 560. Nor has the defendant demonstrated that failure to include the detailed language on the use of unreasonable or unnecessary physical force resulted in manifest injustice. The court instructed the jury in accordance with the elements of § 53a-167c, and the defendant did not raise or request any detailed instruction on a defense. "The charge was presented to the jury in such a way that no injustice was done to the defendant." State v. Salters , supra, 78 Conn. App. at 9, 826 A.2d 202. Accordingly, the defendant cannot prevail on his claim of plain error. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-167c (a) provides in relevant part: "A person is guilty of assault of public safety . personnel when, with intent to prevent a reasonably identifiable . employee of the Department of Correction . from performing his or her duties, and while such . employee . is acting in the performance of his or her duties . (5) such person throws or hurls, or causes to be thrown or hurled, any bodily fluid including, but not limited to, urine, feces, blood or saliva at such . employee ." Northern Correctional Institute protocol requires an inmate under full restraint status to have his legs shackled and hands cuffed behind his back during transportation to and from the shower room. Once returned to his cell, the leg shackles are removed while the inmate kneels on the bed. The inmate remains on the bed until the officer leaves the cell and the door is secured. The handcuffs are removed through the food trap in the door. In contrast, the defendant testified that after the victim removed his leg shackles, the victim struck the defendant with the leg shackles wrapped around his fist, also known as a "monkey paw." In response, the defendant followed the victim toward the door while calling him "a few names." The defendant maintained that he did not spit on the victim. Additionally, the defendant testified that he objected to the victim's handling and controlling of his movements during escort to the shower. The court instructed the jury as follows: "The defendant is charged with assault on public safety personnel . The statute [defining] this offense reads in pertinent part as follows: A person is guilty of assault of public safety personnel when, with intent to prevent a reasonably identifiable employee of the Department of Correction from performing his duties, and while said correction officer was acting in the performance of his duties, such person threw or hurled or caused to be thrown or hurled any bodily fluid including, but not limited to urine, feces, blood or saliva at a correction officer. "For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: Element one, assault of officer. The first element is that the person allegedly assaulted, [the victim], was a reasonably identifiable Department of Correction employee. In addition, [he] had to be reasonably identifiable as a correction officer. "Element two, in the performance of duties. The second element is that the conduct of the defendant occurred while . [the victim] was acting in the performance of his duties. The phrase, 'in the performance of his official duties,' means that the correction employee was acting within the scope of what he's employed to do and that his conduct was related to his official duties. "The question of whether he was acting in good faith in the performance of his duties is a factual question for you to determine on the basis of the evidence in the case. "In this case, there was testimony that [the victim] had concluded escorting [the defendant] to his cell from the shower area at the time of the alleged saliva, spitting or hurling. "Element number three, intent to perform. The third element is that the defendant had specific intent to prevent [the victim] from performing his lawful duties.... "Element four, by certain means. The fourth element the defendant hurled or caused to be hurled a bodily fluid, namely, saliva, at the correction officer." After the jury was excused and the court had noted defense counsel's exception to the intent element, the following exchange occurred: "The Court: So I note your exception. Anything else? "[The Prosecutor]: Nothing from the state. "[Defense Counsel]: Thank you, Your Honor. "The Court: You're welcome. All right. And for the record, counsel's already confirmed they've reviewed the charge, the exhibits and the information. I'm correct, am I not? "[The Prosecutor]: Correct, Your Honor. "The Court: Correct? "[Defense Counsel]: I've seen everything, Your Honor. I'm trying to write and listen. "The Court: I understand, but I mean you've seen it. All right. You approved it, so, all right. Let's bring the jurors back in." On appeal, the defendant is not challenging the intent element of the charge. See element two of "Interfering with an Officer-§ 53a-167a," Connecticut Criminal Jury Instructions 4.3-1, available at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last visited January 16, 2018); element two of "Assault of Public Safety, Emergency Medical, Health Care, or Public Transit Personnel-§ 53a-167c," Connecticut Criminal Jury Instructions 4.3-3, available at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last visited January 16, 2018). We note the difference between the theory of self-defense and a defense of unreasonable or unnecessary physical force. "Under a theory of self-defense, a criminal defendant basically admits engaging in the conduct at issue, but claims that that conduct was legally justified." (Internal quotation marks omitted.) Moore v. Commissioner of Correction , 119 Conn. App. 530, 539, 988 A.2d 881, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010). "A theory of self-defense is a justification defense . [that] represents a legal acknowledgment that the harm caused by otherwise criminal conduct is, under special justifying circumstances, outweighed by the need to avoid an even greater harm or to further a greater societal interest." (Internal quotation marks omitted.) Id. A theory of self-defense involves the defendant admitting to the conduct at issue, e.g., assaulting the victim, while justifying the use of force. In contrast, a defense of unreasonable or unnecessary physical force, by operation, focuses on the victim's actions during the assault, e.g., whether the victim was acting within the performance of his or her duties. The defense applies regardless of whether the defendant admits to the assaultive conduct because it negates the second element of assault on a correction officer and "[t]he defendant would be entitled to an acquittal if the state failed to prove that the use of force was within the performance of the officer's duties." State v. Salters , supra, 78 Conn. App. at 6, 826 A.2d 202. Furthermore, our case law describes the detailed instruction for "in the performance of duties" as standing in lieu of a self-defense instruction. State v. Davis , supra, 261 Conn. at 571, 804 A.2d 781 ; see generally D. Borden & L. Orland, 5A Connecticut Practice Series: Criminal Jury Instructions (4th Ed. 2016-2017 Supp.) § 14.2, p. 205-207. See footnote 5 of this opinion. The defendant specifically relies on the following: "In effect, a detailed instruction that the state must establish that the police officer had been acting in the performance of his duty and that a person is not required to submit to the unlawful use of physical force during the course of an arrest, whether the arrest itself is legal or illegal, stands in lieu of a self-defense instruction in such cases. Consequently, the failure to provide such instructions when the defendant has presented evidence, no matter how weak or incredible, that the police officer was not acting in the performance of his duty, effectively operates to deprive a defendant of his due process right to present a defense." State v. Davis , supra, 261 Conn. at 571, 804 A.2d 781. The instruction states: "In determining whether the officer was acting in the performance of (his/her) duties, you must consider another provision in our law that justifies the use of physical force by correction officers. That statute provides that an authorized official of a correctional institution or facility may, in order to maintain order and discipline, use such physical force as is reasonable and authorized by the rules and regulations of the department of correction. "If you find that the force used by the officer was not reasonable, you will find that < insert name of officer> was not acting within the performance of (his/her) official duties while attempting to (arrest/prevent the escape of) the defendant." (Emphasis omitted; footnote omitted.) Connecticut Criminal Jury Instructions, supra, 4.3-1. We note that the preamble of the criminal jury instructions found on the Judicial Branch website clearly states that it "is intended as a guide for judges and attorneys" and that "[t]he use of these instructions is entirely discretionary and their publication by the Judicial Branch is not a guarantee of their legal sufficiency." Connecticut Criminal Jury Instructions, available at http://www.jud.ct.gov/ji/Criminal/Criminal.pdf (last visited January 16, 2018). See, e.g., State v. Reyes , 325 Conn. 815, 822 n.3, 160 A.3d 323 (2017) ; State v. Hall-Davis , 177 Conn. App. 211, 242 n.14, 172 A.3d 222 (2017).

12503745

STATE of Connecticut v. Ricardo CORREA

State v. Correa

2018-10-09

AC 39899

393

415

197 A.3d 393

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

STATE of Connecticut v. Ricardo CORREA

STATE of Connecticut v. Ricardo CORREA AC 39899 Appellate Court of Connecticut. Argued April 24, 2018 Officially released October 9, 2018 Laila M.G. Haswell, senior assistant public defender, with whom, on the brief, was Lauren Weisfeld, chief of legal services, for the appellant (defendant). Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Susan M. Campbell, deputy assistant state's attorney, for the appellee (state). Alvord, Prescott and Beach, Js.

10728

65861

ALVORD, J. Following a conditional plea of nolo contendere, entered pursuant to General Statutes § 54-94a, the defendant, Ricardo Correa, appeals from the judgment of conviction of conspiracy to possess a controlled substance with intent to sell in violation of General Statutes § 53a-48 and 21a-277 (b), conspiracy to possess a controlled substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 53a-48 and 21a-278 (a), and conspiracy to operate a drug factory in violation of General Statutes § 53a-48 and 21a-277 (c). The defendant entered his conditional plea following the court's denial of his motion to suppress evidence seized from a motel room he was renting. On appeal, the defendant claims that the trial court erred in denying his motion to suppress because: (1) a warrantless dog sniff outside the door of his motel room violated his state constitutional rights, and (2) a warrantless visual search of his motel room violated his state and federal constitutional rights. We affirm the judgment of the trial court. The trial court set forth the following findings of fact in its memorandum of decision on the defendant's motion to suppress. During the early morning hours of February 5, 2013, Sergeant Christopher Broems of the Stamford Police Department was parked on Home Court, a street immediately behind the America's Best Value Inn motel (motel) on East Main Street in Stamford. Sergeant Broems, a nineteen year veteran of the Stamford Police Department who also spent three years in the New York City Police Department, had made many prior arrests at the motel for narcotics, prostitution, and other criminal activity. From the street, Sergeant Broems was surveilling the motel for evidence of possible illegal activity. He was parked approximately fifty yards away from the motel and had a clear, well illuminated view of the motel, which included two floors of numbered motel room doors that opened onto the back parking lot. At approximately 1:20 a.m., Sergeant Broems observed a silver colored 2004 GMC Yukon pull into the motel parking lot. Only the passenger in the Yukon, who was later determined to be Eudy Taveras, exited the Yukon, while the operator remained in the vehicle with the headlights on. Taveras approached and entered room 118 of the motel, which was on the first floor, where he remained for less than one minute. Taveras returned to the vehicle, which then left the motel. Given the location, time of night, and duration of the visit, Sergeant Broems believed that he may have witnessed a narcotics transaction out of room 118. Sergeant Broems radioed to a nearby colleague, Officer Vincent Sheperis, that he intended to stop the Yukon, and then drove in the direction of the Yukon. When the operator of the Yukon, who was later determined to be Charles Brickman, observed Sergeant Broems approaching the Yukon in his marked Stamford Police SUV, he turned off the Yukon's headlights. A short distance from the motel, Sergeant Broems stopped the vehicle. Officer Sheperis joined Sergeant Broems, acting as backup. When Sergeant Broems and Officer Sheperis approached the vehicle, they both smelled a strong odor of marijuana emanating from inside the Yukon. Sergeant Broems and Officer Sheperis removed Taveras from the vehicle, and Taveras admitted to possessing "weed." A search of Taveras revealed two glass jars with yellow tops containing marijuana, along with three other similar, but empty, yellow topped glass jars, as well as a knotted corner of a plastic sandwich bag containing heroin. On the basis of this evidence, Sergeant Broems requested a sweep of the Yukon by a canine officer trained in the detection of narcotics. A canine officer, Cooper, and his Stamford Police Department handler, Sergeant Seth O'Brien, arrived on the scene shortly after Sergeant Broems' request. Cooper alerted to the center console of the vehicle, but the officers found no additional drugs. Brickman was found to have no drugs on his person. Brickman was issued an infraction ticket for operating a motor vehicle without headlights, and allowed to drive off in the Yukon. The officers detained Taveras. Taveras informed Sergeant O'Brien that he lived with his grandmother nearby on Charles Street in Stamford. At that point, Sergeant Broems, Officer Sheperis, and Sergeant O'Brien went to the grandmother's home on Charles Street, where they spoke with Taveras' brother. Taveras' grandmother signed a consent form allowing the officers to search Taveras' bedroom. In Taveras' bedroom, the officers found numerous plastic bags with the corners cut off, consistent with narcotics packaging, along with other bags containing an off white powder residue. The officers then returned to the motel. They spoke with the manager of the motel, who advised them that several days earlier, the defendant had rented room 118 for the week, until February 8, 2013, paying $430 in cash. The manager provided the officers with documentation concerning room 118, including a photocopy of the defendant's driver's license. The guest registration card for room 118 also included the name of a second individual, Victor Taveras. Although the officers were not certain who Victor Taveras was, Sergeant O'Brien testified that they believed that he most likely was Eudy Taveras. After speaking with the manager, the officers went together to knock on the door of room 118. The officers observed a light on in the room, but no one answered the door. Sergeant O'Brien then retrieved Cooper and conducted a narcotics sweep, which included several passes along the first floor walkway where room 118 is located. On each pass, Cooper consistently alerted to the presence of narcotics at the door to room 118. It was then approximately 3 a.m. on February 5, 2013, a little over ninety minutes since Sergeant Broems first observed Taveras enter and exit room 118. At this point, on the basis of all that had transpired since observing Taveras enter and exit room 118, Sergeant Broems decided to apply for a warrant to search room 118. The officers decided that Sergeant Broems and Officer Sheperis would return to Stamford Police headquarters to prepare the search warrant and to process Taveras for his drug charges, and Sergeant O'Brien would remain behind on Home Court, in the same area where Sergeant Broems was parked earlier, to surveil room 118 for any possible activity. Very shortly after the officers split up, however, just as Sergeant O'Brien was getting into position to surveil room 118, he observed the defendant on foot near the motel at the corner of Home Court and East Main Street, walking away from the motel. Sergeant O'Brien, who recognized the defendant, immediately radioed for Sergeant Broems and Officer Sheperis to return to the motel to stop the defendant. While walking on Home Court, the defendant made eye contact with Sergeant O'Brien, who was in a marked police SUV. After the defendant made eye contact with Sergeant O'Brien, the defendant changed his direction and began walking east on East Main Street. About 100 yards from the motel, Sergeant O'Brien approached the defendant, stepped out of his police vehicle, and, addressing the defendant as "Ricky," told the defendant that he needed to speak with him. Initially, the defendant was cooperative. Sergeant Broems arrived on the scene, and the defendant was searched. The officers found that the defendant was carrying a large wad of cash, amounting to over $3600, in his pocket, along with a key to a room at the motel. Sergeant O'Brien informed the defendant that Taveras was taken into custody, and that "the jig is up." The defendant responded, "nothing in the room is mine." The defendant agreed to open the door to room 118 for the officers. When the officers and the defendant reached the threshold of room 118, however, the defendant changed his mind and refused to grant them entry. The officers informed the defendant that if he did not consent to a search of the room, they were going to obtain a search warrant. The defendant informed Sergeant Broems that there was no one in the room. To ensure that there was no one else inside the room that might destroy evidence before the officers could obtain a search warrant, however, Sergeant Broems used the defendant's room key to open the door. After opening the door, Sergeant Broems announced "Police!" and looked inside the room for approximately fifteen to thirty seconds. Once he was satisfied that the room contained no occupants, Sergeant Broems closed the door. While the door was open, neither Sergeant Broems, nor any other officer or Cooper, set foot in or otherwise physically entered room 118. When he did not observe anyone in the room, Sergeant Broems "cleared" room 118. Although he did not enter the room, or take any steps to seize any evidence located inside the room, Sergeant Broems did observe a large black digital scale on a table, as well as a plastic sandwich bag lying on the floor nearby. The officers advised the defendant that he was free to leave the motel, and the defendant left. Following the defendant's departure, other officers of the Stamford Police Department arrived at the motel. Those officers were assigned to watch room 118 while the investigating officers prepared an application for a search warrant, with Sergeant O'Brien and Officer Sheperis acting as affiants. Several hours later, at 9:20 a.m., the court, Hon. Richard F. Comerford, Jr. , judge trial referee, signed the search warrant for room 118. When the police executed the search warrant, they discovered a total of approximately 200 grams of heroin, with a street value of approximately $85,000. The heroin was broken down into dozens of smaller baggies or glassine folds for individual sale. The officers also discovered a large quantity of U.S. currency, a laptop computer, and paper documents pertaining to a street gang, the Latin Kings. The police also discovered over four ounces of marijuana and a quantity of packaging materials, along with a vacuum sealing machine, two sifters, and two digital scales. These items were consistent with the operation of a drug factory by the defendant in the motel room. After the search warrant was executed, the police arrested the defendant at Taveras' grandmother's house on Charles Street. The defendant was charged with a variety of felony drug offenses. On October 28, 2015, the defendant filed a motion to suppress "all items seized by police on February 5, 2013 from America's Best Value Inn Room # 118." In his memorandum of law in support of the motion to suppress, the defendant argued that because Sergeant Broems' visual sweep of the room was performed without obtaining a valid search warrant, it was "per se unreasonable." The defendant further argued that, because the search did not fall within any recognized exceptions to the warrant requirement, as no exigent circumstances existed at the time and the conduct fell short of a protective sweep, "any evidence found as a result of the prior police illegality must be suppressed." The court held a hearing on the motion to suppress on February 29, 2016. The state presented the testimony of Sergeant Broems, Officer Sheperis, and Sergeant O'Brien. At the conclusion of the suppression hearing, the state did not contest that Sergeant Broems' visual sweep of the room constituted a warrantless search within the meaning of the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution. Rather, the state argued that because Officer Broems' visual sweep of room 118 was undertaken "solely for the purpose of insuring the lack of-insuring that no evidence was being destroyed," it was lawful pursuant to the exigent circumstances exception to the warrant requirement. The state specifically noted that the visual sweep did not constitute a "protective sweep." The state alternatively argued that, even if the visual sweep was unlawful, the evidence seized from the room was still admissible pursuant to the independent source doctrine. On June 22, 2016, the court denied the defendant's motion to suppress in a written memorandum of decision. The court concluded that Sergeant Broems' warrantless visual sweep was proper, under the exigent circumstances doctrine, to prevent the destruction of evidence. The court reasoned that, "when all the facts of this case as known by police at the time of the warrantless entry by Broems are viewed objectively, the case meets the criteria for a finding of exigent circumstances." In reaching its decision, the court noted that other courts have found that evidence destruction is frequent in drug cases, and it relied on the testimony of the police officers, including: Sergeant Broems' testimony that his only motivation to open the door to room 118 was to avoid the destruction of possible evidence; Sergeant O'Brien's testimony that, based on his training and experience, it is common for additional people to be present in a motel room, especially in the context of narcotics or prostitution, regardless of the actual number of registered parties; Sergeant O'Brien's testimony that he was concerned that, on the basis of his prior experience as a trained officer with respect to the destruction or contraband or evidence, a number of people already knew of the Stamford police's investigation into the activity in room 118, and that phone calls informing potential confederates of that investigation may have already been made, prompting the destruction of evidence; and Sergeant Broems' testimony that he believed that there was a real possibility for the loss of potential evidence of illegal activity in room 118 because the police did not continue to surveil room 118 after initially departing the motel to stop the Yukon. The court further noted that the officers were not aware of the true extent of Taveras' involvement with the room, or the possibility of the presence of other persons inside the room. The court also concluded that "even assuming, arguendo, that the act of Broems in opening the door without a warrant in order to check the room for other occupants violated the defendant's fourth amendment rights, the court finds that the evidence later seized pursuant to a search warrant is admissible under the independent source doctrine." On October 19, 2016, the defendant entered a conditional plea of nolo contendere to conspiracy to possess a controlled substance with intent to sell in violation of General Statutes § 53a-48 and 21a-277 (b), conspiracy to possess a controlled substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 53a-48 and 21a-278 (a), and conspiracy to operate a drug factory in violation of General Statutes § 53a-48 and 21a-277 (c). The plea was entered conditionally on his right to take an appeal from the court's ruling on the motion to suppress. The court, Blawie, J. , rendered a judgment of conviction. The court sentenced the defendant to a term of incarceration of nine years on each of the charges, followed by six years of special parole, to run concurrently with one another, for a total effective sentence of nine years to serve followed by six years of special parole. On March 31, 2017, the court made a finding that the motion to suppress was dispositive of the case. This appeal followed. We begin by noting that "[a]s a general matter, the standard of review for a motion to suppress is well-settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record.... [W]hen a question of fact is essential to the outcome of a particular legal determination that implicates a defendant's constitutional rights, [however] and the credibility of witnesses is not the primary issue, our customary deference to the trial court's factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court's factual findings are supported by substantial evidence.... [W]here the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . "Notwithstanding the responsibility to examine the record scrupulously, it is well established that we may not substitute our judgment for that of the trial court when it comes to evaluating the credibility of a witness.... It is the exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any given witness' testimony.... Questions of whether to believe or disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses.... We must defer to the trier of fact's assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude." (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Kendrick , 314 Conn. 212, 222-24, 100 A.3d 821 (2014). I For the first time on appeal, the defendant claims that the dog sniff constituted a violation of his rights under article first, § 7, of the state constitution. Specifically, he argues that "the police conducted an illegal, warrantless dog sniff search of the outside door of the defendant's hotel room during which the canine signaled that he detected drugs in the room," and as a result of that illegal search, obtained a search warrant for his motel room. The defendant concedes that this issue is unpreserved, but nevertheless seeks review pursuant to the bypass doctrine set forth by our Supreme Court in State v. Golding , 213 Conn. 233, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 120 A.3d 1188 (2015), or reversal pursuant to the plain error doctrine. See Practice Book § 60-5 ("[t]he court may in the interests of justice notice plain error not brought to the attention of the trial court"). The record is adequate to review the defendant's claim, and the issue of a warrantless search is an issue of constitutional magnitude. See State v. Buie , 129 Conn. App. 777, 787, 21 A.3d 550, aff'd, 312 Conn. 574, 94 A.3d 608 (2014) (concluding that defendant's claim satisfied Golding 's second prong where he was alleging violation of his right to be free from unreasonable searches under article first, § 7, of the Connecticut constitution). The defendant cannot, however, establish a constitutional violation. We therefore conclude that the defendant's state constitutional claim is reviewable, but fails under Golding 's third prong. Article first, § 7, of the Connecticut constitution provides: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any persons or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation." "A search for purposes of the [f]ourth [a]mendment occurs when a reasonable expectation of privacy is infringed." State v. Saturno , 322 Conn. 80, 88, 139 A.3d 629 (2016). "It is well established that, in determining whether the police conducted a search within the meaning of article first, § 7, a court employ[s] the same analytical framework that would be used under the federal constitution.... Specifically, we ask whether the defendant has established that he had a reasonable expectation of privacy in the area or thing searched.... In the absence of such an expectation, the subsequent police action has no constitutional ramifications . The determination of whether such an expectation exists is to be made on a [case-by-case] basis . and requires a [two part] inquiry: first, whether the individual has exhibited an actual subjective expectation of privacy, and, second, whether that expectation is one society recognizes as reasonable.... Whether a defendant's actual expectation of privacy in a particular place is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances.... "The determination that a particular place is protected under [article first, § 7] requires that it be one in which society is prepared, because of its code of values and its notions of custom and civility, to give deference to a manifested expectation of privacy.... It must be one that society is prepared to recognize as reasonable.... Legitimate expectations of privacy derive from concepts of real or personal property law or [from] understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others . and one who owns or lawfully possesses or controls properly will in all likelihood have a legitimate expectation of privacy by virtue of his right to exclude.... Of course, one need not have an untrammeled power to admit and exclude in order to claim the protection of [article first, § 7, as] long as the place involved is one affording an expectation of privacy that society regards as reasonable." (Citations omitted; footnotes omitted; internal quotation marks omitted.) State v. Kono , 324 Conn. 80, 89-91, 152 A.3d 1 (2016). The defendant's state constitutional claim rests on his interpretation of a recent decision by our Supreme Court, State v. Kono , supra, 324 Conn. at 80, 152 A.3d 1, in which that court decided the issue of "whether article first, § 7, of the Connecticut constitution prohibits police from conducting a warrantless canine sniff of the front door of a condominium in a multiunit condominium complex, and the common hallway adjacent thereto, for the purpose of detecting marijuana inside the condominium." (Footnote omitted.) Id., at 82, 152 A.3d 1. On the basis of the court's ruling that the dog sniff did constitute a search within the meaning of article first, § 7, the defendant argues: "The police did not obtain a warrant before they decided to conduct a dog sniff search of the pathway right outside of the defendant's hotel room.... Thus, under the recent case of State v. Kono , [supra, at 80, 152 A.3d 1], the dog sniff of the hotel room violated the defendant's right under the state constitution to be free of illegal search and seizure." In Kono , the police, after receiving an anonymous tip that the defendant was boasting about growing marijuana in his condominium, which was located in a condominium complex in Berlin, obtained consent from the property manager to enter the building. Id., at 83, 152 A.3d 1. Specifically, the property manager signed a consent form allowing the police officers and a canine officer, Zeusz, to conduct a sweep of the common areas of the building. Id. Because the outside doors to the multiunit condominium buildings were normally locked, allowing access only through a keypad, a property manager admitted the police and Zeusz into the building. Zeusz, who was trained to detect various controlled substances, including marijuana, was accompanied by his handler, an officer of the Berlin Police Department. Id., at 83-84, 152 A.3d 1. The officer first had Zeusz conduct a "presearch," of the first floor common hallway, during which he was allowed to walk throughout the condominium building hallway without direction. Id., at 84, 152 A.3d 1. After the presearch, the officer conducted a directed search in which Zeusz was commanded to sniff at the bottom of the front door of each condominium unit on the first floor. Id. The same presearch and directed search procedures also were conducted on the second floor, where the defendant's condominium unit was located. When Zeusz performed his sniff at the bottom of condominium unit 204, the defendant's unit, he sat down in front of the door, which constituted a passive alert for drugs in the unit. Id. The police knocked on the door to unit 204, but received no response. Id. An officer remained at the door to ensure that no one entered the premises, and another officer left to prepare a search warrant application. Id. Approximately four hours later, the officer returned with a signed search warrant. Id. Upon executing the warrant, the police discovered an indoor greenhouse containing marijuana plants, as well as seeds, lighting equipment, and various firearms. Id. The defendant was arrested and charged with several drug and weapon related offenses. Id. The defendant moved to suppress the evidence seized from his condominium on the ground that a canine sniff of the threshold of his home, conducted for the purpose of investigating the home's contents, constituted a search under both the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution, and therefore, required a warrant based on probable cause. Id., at 84-85, 152 A.3d 1. Specifically, the defendant argued that the front door to his condominium unit, as well as the hallway adjacent to his front door, were "within the constitutionally protected curtilage of his condominium unit such that the entry of a dog into that area for the purpose of conducting a drug sniff constituted a trespass." Id., at 85, 152 A.3d 1. The defendant further argued that the canine sniff violated his reasonable expectation of privacy. Id. The trial court agreed with the defendant that the canine sniff violated his reasonable expectation of privacy under the fourth amendment, and granted the defendant's motion to suppress. Id., at 82, 152 A.3d 1. The state appealed. Id. On appeal to our Supreme Court, the state reasserted its trial court argument that the canine sniff of the defendant's front door and the hallway adjacent thereto did not constitute a search under article first, § 7, because the defendant had no reasonable expectation of privacy in the common hallway or the contraband inside his home. Id., at 89, 152 A.3d 1. The court, employing the multifactor approach set forth in State v. Geisler , 222 Conn. 672, 685, 610 A.2d 1225 (1992), looked first to federal precedent involving the use of a trained narcotics detection dog. State v. Kono , supra, 324 Conn. at 92, 152 A.3d 1. The court concluded that "federal precedent provides support for the defendant's claim of a state constitutional violation." Id., at 93, 152 A.3d 1. The court next examined precedent from other state courts, and concluded that "it appears that the weight of sister state precedent supports the view that the canine sniff of the defendant's door in the present case was a search under our constitution." Id., at 121, 152 A.3d 1. Finally, the court concluded that there is "no principled reason of public policy . why, in the context of canine sniffs, the firm and bright line that we draw at the entrance of the house should apply to single-family dwellings but not to dwellings in a multiunit building. Indeed, as the Seventh Circuit observed in Whitaker , allowing police dogs to sniff the doors of apartments but not freestanding homes would be deeply troubling because it would apportion [constitutional] protections on grounds that correlate with income, race, and ethnicity." (Internal quotation marks omitted.) Id., at 121, 152 A.3d 1. The court held that a canine sniff directed toward a home-whether freestanding or part of a multitenant structure-is a search for purposes of article first, § 7, of the Connecticut constitution and, therefore, requires a warrant issuing upon a court's finding of probable cause. Id., at 122, 152 A.3d 1. The court, therefore, concluded that the defendant was entitled to suppression of the evidence seized from his residence as a fruit of the warrantless canine sniff, and affirmed the judgment of the trial court. Id., at 122, 152 A.3d 1. We disagree with the defendant's assertion that "[t]his case is indistinguishable from and is controlled by Kono ." This case concerns the shared open walkway of a motel. In Kono , the hallway was closed off, and located on the inside of the condominium complex structure, which was restricted by a locked door. It was accessible only by keycard access, and the police needed to obtain permission before entering the hallway. The open, shared walkway here, was located on the outside of the structure. It was open to the public, as well as completely illuminated and visible to anyone as far as fifty yards away, even at nighttime. Furthermore, no permission was required to traverse the walkway, evidenced by the ease with which the officers, and eventually Cooper, did so. We conclude that because of the nature of the walkway on which room 118 was located, Kono is distinguishable from the present case. As the court in Kono noted, the determination of whether a defendant possesses a reasonable expectation of privacy in an area or thing to be searched is made on a case-by-case basis. See id., at 90, 152 A.3d 1. We conclude that, under the facts of this case, the defendant has not shown a reasonable expectation of privacy on the outside of the door to his motel room. Furthermore, the defendant cites no authority to support his assertion that a canine sniff outside the door of a motel room, conducted from an open walkway, which is visible to and accessible by any member of the public, constitutes a search within the meaning of article first, § 7, of our state constitution. In the absence of such authority, we decline to extend Kono ' s reach to the facts of this case. Because the defendant's constitutional claim hinges on his interpretation of Kono , in light of our conclusion that it is inapplicable to the facts of his case, we conclude that he has failed to demonstrate a constitutional violation. Accordingly, the defendant's unpreserved state constitutional claim fails under Golding 's third prong. The defendant also is unable to prevail under the plain error doctrine, as he cannot demonstrate that an obvious error exists that affects the fairness and integrity of and public confidence in the judicial proceedings. II The defendant next claims that Sergeant Broems' conduct in opening the door to room 118 and conducting a visual sweep of the room was unlawful under the federal and state constitutions. The state does not dispute that Sergeant Broems' conduct constituted a warrantless search within the meaning of the fourth amendment to the federal constitution and article first, § 7, of the state constitution. Rather, the state argues only that the search was justified by exigent circumstances-namely, the potential destruction of evidence. The defendant argues that "none of the officers who testified could identify any definite and specific reason for believing that someone was in the room who might destroy the evidence," and, therefore, the officers did not hold a reasonable belief that immediate action was necessary. We are not persuaded. "Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause. [A] search conducted without a warrant issued upon probable cause is per se unreasonable . subject only to a few specifically established and well-delineated exceptions.... These exceptions have been jealously and carefully drawn . and the burden is on the state to establish the exception.... Our law recognizes that there will be occasions when, given probable cause to search, resort to the judicial process will not be required of law enforcement officers. [For example], where exigent circumstances exist that make the procurement of a search warrant unreasonable in light of the dangers involved . a warrant will not be required.... "The term, exigent circumstances, does not lend itself to a precise definition but generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization." (Citations omitted; internal quotation marks omitted.) State v. Owen , 126 Conn. App. 358, 364-65, 10 A.3d 1100, cert. denied, 300 Conn. 921, 14 A.3d 1008 (2011). The test for determining whether exigent circumstances justify a warrantless search or seizure is "whether, under the totality of the circumstances, the police had reasonable grounds to believe that if an immediate arrest [or entry] were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others.... "[N]o single factor, such as a strong or reasonable belief that the suspect is present on the premises, will be determinative in evaluating the reasonableness of a police officer's belief that a warrantless entry or arrest was necessary. Rather than evaluating the significance of any single factor in isolation, courts must consider all of the relevant circumstances in evaluating the reasonableness of the officer's belief that immediate action was necessary." (Internal quotation marks omitted.) State v. Kendrick , supra, 314 Conn. at 227, 229, 100 A.3d 821. "It is well established in Connecticut . that the test for the application of the doctrine is objective, not subjective, and looks to the totality of the circumstances.... This is an objective test; its preeminent criterion is what a reasonable, well-trained police officer would believe, not what the arresting officer actually did believe. . The reasonableness of a police officer's determination that an emergency exists is evaluated on the basis of facts known at the time of entry." (Citations omitted; internal quotation marks omitted.) State v. Owen , supra, 126 Conn. App. at 365, 10 A.3d 1100. "[T]he trial court's legal conclusion regarding the applicability of the exigent circumstances doctrine is subject to plenary review." State v. Kendrick , supra, 314 Conn. at 222, 100 A.3d 821. As a preliminary matter, we must first determine whether, at the time of Sergeant Broems' visual sweep, probable cause existed to search room 118. See State v. Owen , supra, 126 Conn. App. at 366, 10 A.3d 1100. We conclude that it did. "Whether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law.... The trial court's determination on [that] issue, therefore, is subject to plenary review on appeal.... Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.... Probable cause, broadly defined, [comprises] such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred.... Reasonable minds may disagree as to whether a particular affidavit establishes probable cause." (Citations omitted; internal quotation marks omitted.) State v. Pappas , 256 Conn. 854, 864-65, 776 A.2d 1091 (2001). "We consistently have held that [t]he quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction.... The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence.... [P]roof of probable cause requires less than proof by a preponderance of the evidence.... Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred.... The probable cause determination is, simply, an analysis of probabilities.... The determination is not a technical one, but is informed by the factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act.... Probable cause is not readily, or even usefully, reduced to a neat set of legal rules.... Reasonable minds may disagree as to whether a particular [set of facts] establishes probable cause.... "The determination of whether probable cause exists under the fourth amendment to the federal constitution . is made pursuant to a totality of circumstances test.... The probable cause test then is an objective one." (Citations omitted; internal quotation marks omitted.) State v. Johnson , 286 Conn. 427, 435-36, 944 A.2d 297, cert. denied, 555 U.S. 883, 129 S.Ct. 236, 172 L.Ed.2d 144 (2008). "In a warrantless arrest or search, as well as one made pursuant to a warrant, the reviewing court must pay great deference to the magistrate's determination of probable cause.... This court must not attempt a de novo review where there has already been a determination at a suppression hearing that probable cause exists.... When a trial court rules on a motion to suppress without making detailed findings of fact to support its ruling, an appellate court may look to the evidence produced in support of the ruling.... Where, as in this case, however, the trial court performs its judicial function conscientiously by detailing the facts which the state has established, we are not free to add facts which are not found and which are not undisputed." (Citations omitted; internal quotation marks omitted.) State v. Velez , 20 Conn. App. 168, 174, 565 A.2d 542 (1989), rev'd on other grounds, 215 Conn. 667, 577 A.2d 1043 (1990). The defendant contends that "[e]ven construing the facts as broadly as possible, there is simply no probable cause to search the hotel room because the facts fail to establish a nexus between drug activity and the hotel room." We disagree and conclude that there was ample evidence that would persuade a reasonable person to believe that criminal activity had occurred. The evidence would also lead a reasonable person to conclude that there was a fair probability that contraband or evidence of that crime would be found in room 118. First, Sergeant Broems observed Taveras' quick visit to room 118, which led him to believe, on the basis of the location of the motel, the time of night, and the duration of the visit, that he had witnessed a drug transaction out of room 118. Sergeant Broems and Sergeant O'Brien then stopped the Yukon in which Taveras was traveling, and discovered narcotics on Taveras' person. That interaction led the police to the house of Taveras' grandmother, where they discovered items consistent with narcotics packaging. The police then learned that room 118 was registered to the defendant and another person by the name of Victor Taveras. When Sergeant O'Brien observed the defendant, the defendant made eye contact with him, changed direction and began walking east on East Main Street rather than continuing on Home Court, where Sergeant O'Brien was parked. After Sergeant O'Brien approached the defendant, the police discovered a large amount of cash and a key to room 118 on his person. When the police informed the defendant at that point that they had arrested Taveras and that "the jig is up," the defendant responded, "nothing in the room is mine," implying that something, with which the defendant did not want to be associated, was present in the room. On the basis of these facts known to the police, a reasonable person would believe that criminal activity had occurred, and that room 118 contained evidence of such criminal activity. Having determined that there existed probable cause to search room 118 at the time of Sergeant Broems' visual sweep, we now turn to the question of whether, under the totality of the circumstances, a reasonable, well trained police officer reasonably would have believed that immediate entry into room 118 was necessary to prevent the destruction of evidence. We answer that question in the affirmative. We agree with the trial court's conclusion that "when all the facts of this case as known by the police at the time of the warrantless entry by Broems are viewed objectively, the case meets the criteria for a finding of exigent circumstances." On the basis of firsthand observations, the police had reason to suspect that drug related criminal activity was occurring in room 118. These suspicions were confirmed by a series of events, unfolding over the course of approximately two hours in the early hours of the morning of February 5, 2013. That course of events included police interactions with at least four people who were not taken into police custody before Sergeant Broems opened the door to room 118, including Brickman, Taveras' brother, Taveras' grandmother, and the hotel manager. Additionally, it was reasonable for the police to fear that even unknown passersby might become aware of the police investigation into room 118. Sergeant O'Brien, an experienced police officer, testified about his concerns that phone calls may have occurred between people aware of the investigation into the activity in room 118 and possible confederates, prompting the destruction of evidence inside of the room. We find this court's decision in State v. Reagan , 18 Conn. App. 32, 556 A.2d 183, cert. denied, 211 Conn. 805, 559 A.2d 1139 (1989), persuasive on this point. In Reagan , the state police were surveilling the defendant's home for possible drug activity. Id., at 34, 556 A.2d 183. While surveilling the home, the police observed what appeared to be a drug transaction occurring between the defendant and a man, as well as a woman arriving to the home in a car, entering the house and leaving after less than one minute. Id. Following the man's departure from the home, the police stopped and searched his vehicle at a nearby gas station. Id. The police discovered narcotics in the man's vehicle and arrested him. Id. During the search and arrest, several people watched from a distance, including the woman who the officers earlier observed entering and leaving the defendant's home. Id. After arresting the man, the police applied for a search warrant, but because they thought it would take at least three hours, they "decided that a significant risk existed that the defendant would learn of [the man's] arrest and destroy any incriminating evidence," and entered the defendant's home before a warrant was issued. Id., 35, 556 A.2d 183. The defendant moved to suppress all evidence obtained during the search as fruit of an illegal search and arrest. Id., at 36, 556 A.2d 183. The trial court denied the motion to suppress, finding that the warrantless entry was justified by exigent circumstances, and this court affirmed. Id. This court concluded that the trial court properly found that the warrantless entry into the defendant's home and his subsequent arrest were justified by the existence of exigent circumstances, as "the possibility that a suspect knows or may learn that he is under surveillance or at risk of immediate apprehension may constitute exigent circumstances, on the theory that the suspect is more likely to destroy evidence, to attempt to escape or to engage in armed resistance." Id., at 38, 556 A.2d 183. The court reasoned: "[I]n the present case, police detained and arrested an individual seen leaving the defendant's home. The arrest site was located on the corner of the defendant's street, approximately one quarter of a mile from the defendant's home. Several people observed this arrest, one of whom was seen by police conversing with [the man]. In addition, there was testimony indicating that the arrest was observed by a woman seen by police at the defendant's home. Given the small size of the town, the proximity of the arrest to the defendant's home and the observation of that arrest by several people, we conclude that police had reasonable grounds to believe that if an immediate entry into the defendant's home were not made, the defendant would be alerted to the arrest of [the man] and destroy any incriminating evidence." Id., at 39, 556 A.2d 183. Similar to the facts of Reagan , there was a distinct possibility that someone who observed either the police stop of the Yukon, Taveras' arrest, or the police and canine presence at the motel, might inform someone involved with the criminal activity. The stop of the Yukon and the arrest of Taveras, a person seen leaving room 118 and seemingly known to the defendant, occurred a short distance from the motel. Brickman, Taveras' grandmother, and Taveras' brother were aware that the police arrested Taveras after he left the motel. The police located and arrested the defendant hours later at the home of Tavares' grandmother. Given the proximity of the arrest of Taveras to the motel and the knowledge of that arrest and the ensuing investigation by at least four people, the police had reasonable grounds to believe that if an immediate entry were not made into room 118, incriminating evidence may be destroyed. Furthermore, Sergeant Broems, on the basis of his own training and experience, noted that from the time Taveras entered the room until the the police returned to the room with the defendant after 3 a.m., there was "nobody with eyes on" the room, which might have allowed an unknown person to enter room 118 and destroy evidence contained therein. Although no one answered when the police knocked on the door earlier in the night, and there was no evidence confirming the presence of an additional person in room 118, these facts, coupled with the observation of a light on in the room, provided ample reason to believe that, absent swift action in opening the door to room 118 and performing a visual sweep, there was a significant risk of the destruction of evidence. It was reasonable for the police to believe that the delay necessary to obtain a search warrant may have resulted in the destruction of incriminatory evidence. The court properly concluded that the search was lawful under the exigent circumstances exception to the warrant requirement. Accordingly, the court properly denied the defendant's motion to suppress. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 54-94a provides: "When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court's denial of the defendant's motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution." As the result of a prior case, the Stamford police already knew the defendant by name. Sergeant O'Brien characterized the sequence of events as follows: "[Broems] cracked the door, stuck his head in, cleared it, you know, visually and then he relayed that nobody else was in there, he closed the door." The defendant was charged with the crimes of possession of more than four ounces of marijuana in violation of General Statutes (Rev. to 2013) § 21a-279 (b); conspiracy to possess more than four ounces of marijuana in violation of General Statutes § 53a-48 and General Statutes (Rev. to 2013) § 21a-279 (b); possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (b) ; conspiracy to possess a controlled substance with intent to sell in violation of General Statutes § 53a-48 and 21a-277 (b) ; possession of narcotics in violation of General Statutes § 21a-279 (a) ; conspiracy to possess narcotics in violation of General Statutes § 53a-48 and 21a-279 (a) ; possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (a) ; conspiracy to possess narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 53a-48 and 21a-278 (a) ; operation of a drug factory in violation of 21a-277 (c); and conspiracy to operate a drug factory in violation of General Statutes § 53a-48 and 21a-277 (c). "The protective sweep doctrine . is rooted in the investigative and crime control function of the police.... As its name suggests, the purpose of the doctrine is to allow police officers to take steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could not unexpectedly launch an attack.... Although originally a protective sweep was defined as one made incident to a lawful arrest . the scope has since been broadened so that the current rule is that a law enforcement officer present in a home under lawful process . may conduct a protective sweep when the officer possesses articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the . scene." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) State v. Kendrick , 314 Conn. 212, 229-30, 100 A.3d 821 (2014). The defendant filed his appeal on December 13, 2016. On his appeal form, he listed "denial of the defendant's motion to suppress evidence" as the appealable judgment or decision. On December 29, 2016, the defendant filed a motion, without objection from the state, requesting permission to correct his appeal form to state that he was appealing "from judgment and sentencing following a nolo contendere plea following denial of a motion to suppress." On February 17, 2017, this court granted that motion, and also sua sponte ordered that "the matter is remanded to the trial court, Blawie, J. , for a determination regarding whether the ruling on the motion to suppress would be dispositive of the case as required by General Statutes § 54-94a. See State v. McGinnis , 83 Conn. App. 700 [851 A.2d 349] (2004) ; State v. Douros , 87 Conn. App. 122 [864 A.2d 57] (2005)." Pursuant to Golding , a defendant may prevail on a claim of constitutional error not preserved at trial only if all four of the following conditions are satisfied: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Footnote omitted.) State v. Golding , supra, 213 Conn. at 239-40, 567 A.2d 823 ; see also In re Yasiel R. , supra, 317 Conn. at 781, 120 A.3d 1188 (modifying third prong of Golding by eliminating word "clearly" before words "exists" and "deprived"). "[T]he plain error doctrine is not . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy.... In addition, the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Plain error is a doctrine that should be invoked sparingly.... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.... Implicit in this very demanding standard is the notion . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review.... [Thus, a] defendant cannot prevail under [the plain error doctrine] . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Internal quotation marks omitted.) State v. Terry , 161 Conn. App. 797, 820, 128 A.3d 958 (2015), cert. denied, 320 Conn. 916, 131 A.3d 751 (2016). The state argues that the record is inadequate for review. Specifically, the state argues that "[b]ecause the defendant did not challenge the dog sniff below, both the state and the trial court were temporally focused on Broems' opening of the door," and, therefore, "the state will be unable to show that despite the alleged illegality of the canine sniff, the evidence was nevertheless admissible under the independent source doctrine." Because we do not reach the issue of whether the independent source doctrine applies in this case; see footnote 20 of this opinion; we need not decide the adequacy of the record with respect to that issue. The defendant also argues that, because our Supreme Court decided State v. Kono , 324 Conn. 80, 152 A.3d 1 (2016), in which it held that a dog sniff of the outside door of a condominium, conducted from a common hallway in the condominium building, constitutes a search within the meaning of article first, § 7, of the Connecticut constitution, after the trial court decided the motion to suppress, "this case falls squarely under the rule permitting review when 'a new constitutional right not readily foreseeable has arisen between the time of trial and appeal.' [State v. Evans , 165 Conn. 61, 70, 327 A.2d 576 (1973) ]." This argument necessarily fails on the basis of our conclusion that Kono does not apply to the facts of this case. The language of the fourth amendment to the federal constitution similarly states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const., amend. IV. The other officers, who were aware of which condominium unit belonged to the defendant, did not inform Zeusz' handler which condominium unit was under investigation. State v. Kono , supra, 324 Conn. at 84, 152 A.3d 1. The trial court in Kono primarily relied on Second Circuit precedent which held that "a canine sniff of a person's front door in a multiunit apartment building, for the purpose of detecting drugs inside the apartment, constituted a search within the meaning of the fourth amendment," and two United States Supreme Court decisions, which held that "a canine sniff conducted within the curtilage of a single-family residence ( [Florida v. Jardines , 569 U.S. 1, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) ] ) and the thermal imaging of a single-family residence ( [Kyllo v. United States , 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001] ) ), for purposes of detecting marijuana therein, violated the fourth amendment to the United States constitution." State v. Kono , supra, 324 Conn. at 86, 152 A.3d 1. On appeal, the defendant also argued, consistent with the trial court's conclusion, that the canine sniff violated the fourth amendment's prohibition against unreasonable searches and seizures. Our Supreme Court, however, decided only the state constitutional issue, explaining: "We recently have explained that when the issue presented is one of first impression under both the state and federal constitutions, it is appropriate to consider the state constitutional claim first, turning to the federal claim only after determining that the appellant's state constitutional [challenge] will not succeed.... As we discuss more fully in part IV of this opinion, we see no reason to deviate from this approach when, as in the present case, the issue is not truly settled under the federal constitution, such that we cannot predict to a reasonable degree of certainty how the United States Supreme court would resolve the issue." (Citations omitted; internal quotation marks omitted.) State v. Kono , supra, 324 Conn. at 82 n.3, 152 A.3d 1. "In order to construe the contours of our state constitution and reach reasoned and principled results, the following tools of analysis should be considered to the extent applicable: (1) the textual approach . (2) holdings and dicta of this court, and the Appellate Court . (3) federal precedent . (4) sister state decisions or sibling approach . (5) the historical approach, including the historical constitutional setting and the debates of the framers . and (6) economic/sociological considerations. " (Citations omitted; emphases in original; internal quotation marks omitted.) State v. Geisler , 222 Conn. 672, 684-86, 610 A.2d 1225 (1992). Our Supreme Court has noted, however, "that these factors may be inextricably interwoven, and not every [such] factor is relevant in all cases." State v. Kono , supra, 324 Conn. at 92, 152 A.3d 1. Specifically, the court cited the Second Circuit's decision in United States v. Thomas , 757 F.2d 1359, 1367 (2d Cir. 1985), cert. denied, 474 U.S. 819, 106 S. Ct. 66, 88 L.Ed. 2d 54 (1985), in which the court held that a canine sniff of the common hallway of a multiunit apartment building, for the purpose of detecting drugs inside one of the apartments, constitutes a search within the meaning of the fourth amendment, and United States v. Whitaker , 820 F.3d 849 (7th Cir. 2016), in which the United States Court of Appeals for the Seventh Circuit reaffirmed that principle. State v. Kono , supra, 324 Conn. at 93, 152 A.3d 1. Although it noted that the United States Supreme Court had not yet decided the issue decided by Thomas , the court noted two cases which "tend to favor the defendant's position": the United States Supreme Court's decisions in Kyllo and Jardines . See id.; see also footnote 15 of this opinion. The court finally cited United States v. Hopkins , 824 F.3d 726, 729, 731-33 (8th Cir. 2016), cert. denied, U.S., - U.S. -, 137 S.Ct. 522, 196 L.Ed.2d 425 (2016), in which the United States Court of Appeals for the Eighth Circuit held that a canine sniff of the front door of a two-story townhouse, which shared a common walkway and front stoop with the unit next door, violated the fourth amendment. The court noted that only seven states appear to have addressed the issue of whether a canine sniff of an apartment door in a multiunit building is a search within the meaning of the federal, or their respective state, constitutions. State v. Kono , supra, 324 Conn. at 116, 152 A.3d 1. The court further noted that five states, Illinois, Minnesota, Nebraska, New York, and Texas, had concluded that it is a search that requires either a reasonable and articulable suspicion or a warrant supported by probable cause, and two, Florida and Washington, had concluded that a canine sniff of the front door of a single family house violates the resident's reasonable expectation of privacy in the home and requires a warrant supported by probable cause. Id., at 117, 152 A.3d 1. Additionally, the court observed that "several state appellate courts have determined that even a canine sniff of a nonresidential property may be a search under their respective state constitutions and may require a reasonable, articulable suspicion." Id., at 118, 152 A.3d 1. Finally, the court noted that only two state appellate courts, in Maryland and North Dakota, had concluded that a canine sniff of an apartment door in a multiunit building is not a search for fourth amendment purposes. Id., at 118, 152 A.3d 1. The defendant also argues that "[a] person who inhabits a hotel room has a reasonable expectation of privacy that is equal to the reasonable expectation of privacy possessed by occupants of any residence." The defendant cites our Supreme Court's decision in State v. Benton , 206 Conn. 90, 536 A.2d 572 (1987), cert. denied, 486 U.S. 1056, 108 S.Ct. 2823, 100 L.Ed.2d 924 (1988), for this proposition. It is useful to elaborate on the guidance provided by Benton. In Benton , our Supreme Court concluded that "[p]ersons . residing in an apartment, or persons staying in a hotel or motel have the same fourth amendment rights to protection from unreasonable searches and seizures and the same reasonable expectation of privacy as do the residents of any dwelling." (Emphases in original.) Id., at 95, 536 A.2d 572. The court went on to acknowledge, however, that "[t]he shared atmosphere and the nearness of one's neighbors in a hotel or motel or apartment in a multiple family dwelling, however, diminish the degree of privacy that one can reasonably expect or that society is prepared to recognize as reasonable." Id., at 96, 536 A.2d 572. We conclude that, as part of our case-by-case determination of whether a reasonable expectation of privacy exists in an area to be searched; see State v. Kono , supra, 324 Conn. at 89, 152 A.3d 1 ; that this case is one in which the nature of the location to be searched, the outside of a door located on an open, shared walkway, diminished the degree of privacy that the defendant reasonably could expect or that society is prepared to recognize as reasonable. We note that, upon review of each federal case where the court was presented with a similar issue, the court has held that a dog sniff of a hotel or motel room door, performed from a shared corridor or walkway, does not constitute a search within the meaning of the fourth amendment. See United States v. Roby , 122 F.3d 1120, 1125 (8th Cir. 1997) ("[The defendant] had an expectation of privacy in his Hampton Inn hotel room. But because the corridor outside that room is traversed by many people, his reasonable privacy expectation does not extend so far. Neither those who stroll the corridor nor a sniff dog needs a warrant for such a trip. As a result, we hold that a trained dog's detection of odor in a common corridor does not contravene the Fourth Amendment."); United States v. Lewis , United States District Court, Docket No. 1:15-CR-10 (TLS) (N.D. Ind. July 10, 2017) (concluding that dog sniff of defendant's hotel room door, which was located along open air walkway, was not search within meaning of fourth amendment, because of nature of walkway, "an unenclosed, common area that was readily accessible to the public at all hours"); United States v. Marlar , 828 F.Supp. 415, 419 (N.D. Miss. 1993) (concluding that defendant possessed a reasonable expectation of privacy in his motel room, but that dog sniff outside defendant's door, which "opened to the exterior of the building," did not infringe on that expectation of privacy), dismissed on other grounds, 68 F.3d 464 (1995). Because we determine that the search was lawful, we need not decide the applicability of the independent source doctrine, a doctrine which applies in the context of the exclusionary rule. See State v. Brocuglio , 264 Conn. 778, 786-87, 826 A.2d 145 (2003) ("As a general principle, the exclusionary rule bars the government from introducing at trial evidence obtained in violation of the fourth amendment to the United States constitution.... The rule applies to evidence that is derived from unlawful government conduct, which is commonly referred to as the fruit of the poisonous tree.... In State v. Dukes, 209 Conn. 98, 115, 547 A.2d 10 (1988), we concluded that article first, § 7, of the Connecticut constitution similarly requires the exclusion of unlawfully seized evidence." [Citations omitted; internal quotation marks omitted.] ); State v. Vivo , 241 Conn. 665, 672, 697 A.2d 1130 (1997) ("[t]he independent source doctrine . [is a] recognized [exception] to the exclusionary rule"). The state additionally argues that if this court determines that a dog sniff of the outside of a door to a motel room constitutes a search under our state constitution, we also should hold that such a search is constitutionally valid if supported by a reasonable and articulable suspicion, as opposed to probable cause. In light of our conclusion that the defendant has failed to show that a search occurred under the facts of this case, we decline to decide this issue. The defendant does not argue that article first, § 7, of the Connecticut constitution provides greater protection with respect to this claim. Because we conclude that the search was lawful, we need not address the trial court's conclusion regarding the applicability of the independent source doctrine. See State v. Sulewski , 98 Conn. App. 762, 764 n.2, 912 A.2d 485 (2006) (concluding that this court need not address trial court's alternative ruling that evidence was admissible pursuant to independent source doctrine in light of conclusion that stop was lawful under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968] ).

12492633

STATE of Connecticut v. ANTHONY L.

State v. Anthony L.

2018-02-06

AC 39200

1278

1288

179 A.3d 1278

179

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.410267+00:00

Fastcase

DiPentima, C.J., and Sheldon and Norcott, Js.

STATE of Connecticut v. ANTHONY L.

STATE of Connecticut v. ANTHONY L. AC 39200 Appellate Court of Connecticut. Argued October 16, 2017 Officially released February 6, 2018 Stephen A. Lebedevitch, assigned counsel, for the appellant (defendant). Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Elizabeth C. Leaming, senior assistant state's attorney, for the appellee (state). DiPentima, C.J., and Sheldon and Norcott, Js. In accordance with our policy of protecting the privacy interests of complainants who allege that they are the victims of sexual assault and the crime of risk of injury to a child, we decline to use the defendant's full name or to identify the complainant or others through whom the complainant's identity may be ascertained. See General Statutes § 54-86e.

4676

28854

NORCOTT, J. The defendant, Anthony L., was convicted, after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), one count of risk of injury to a child in violation of General Statutes § 53-21(a)(2), and one count of sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(2). On appeal, the defendant claims that (1) the trial court abused its direction in admitting evidence of uncharged misconduct and (2) there was insufficient evidence to support his conviction on all three charges. We disagree, and, accordingly, affirm the judgment of the trial court. The jury was presented with the following evidence on which to base its verdict. The crimes with which the defendant was charged allegedly occurred between May 23, 2002, and December 31, 2003. At all relevant times, the minor complainant, along with her brother, P, and her parents resided in Massachusetts. The complainant's father was terminally ill. To prevent the complainant and her brother from seeing their father in this condition, their mother arranged for them to spend weekends and other holidays with their paternal uncle, the defendant, who lived in Connecticut. Sometimes, the defendant would pick up the children at their home in Massachusetts. At other times, he would meet their mother midway at a designated point. One day, while the complainant and the defendant were traveling in the defendant's car, and the complainant was sitting in the passenger seat, the defendant reached under the complainant's shirt and commented that "[she] was developing nicely." The complainant was either ten or eleven years old at this time. In a subsequent visit to the defendant's house, the complainant asked the defendant if they could rent and watch a movie called "American Pie" because the complainant's mother previously had forbidden her from watching it; the defendant agreed. After renting the movie, the defendant and the complainant were driving back to the defendant's house when the defendant told the complainant that "he felt [she] needed an explanation as to body parts and whatnot so that way [she] could have a better understanding of the movie." The defendant then proceeded to put his hand "down [the complainant's] pants and put his fingers inside of [her]," and commented, "this is your cherry," and that "that was the start of intercourse" and "something [the complainant] needed to know so [she] understood the movie because the movie was about sex." The defendant then kept his fingers inside the complainant's vagina for the duration of the car ride to the defendant's house. Once there, the complainant and the defendant started watching the movie, with the complainant lying on a couch and the defendant sitting at the other end of the same couch. The defendant then ran his hand up the complainant's leg and digitally penetrated her vagina. The defendant repeated this abuse after the complainant went to bed that night and again on the car ride back to the complainant's mother's house. These acts occurred before May, 2002, when the complainant was ten or eleven years old. After that weekend, the defendant routinely would sexually abuse the complainant. The acts remained the same, i.e., digital penetration, and they would occur during car rides and when the complainant slept at the defendant's house. While there, the complainant and P would sleep in two separate bedrooms on the second floor. The bedroom where the complainant typically slept had a door that could not be locked. Here, after the complainant would fall asleep, the defendant would enter the bedroom and digitally penetrate her vagina. Afterward, he would sometimes whisper, "[y]ou're welcome," or, "I'm sorry, I can't help myself." The defendant continued to sexually abuse the complainant after the death of her father in January, 2002, following which her visits to the defendant's house became less frequent. The final act of sexual abuse occurred in the complainant's home in Massachusetts, in December, 2003. There, the defendant digitally penetrated the complainant's vagina while sharing a blanket with her on a couch. The complainant was fifteen at the time of this last act. On December 4, 2013, the complainant reported her sexual abuse by the defendant to the Connecticut State Police. The defendant thereafter was arrested and charged with one count of sexual assault in the first degree, one count of risk of injury to a child, and one count of sexual assault in the third degree. Before trial commenced, the defendant filed a motion in limine to establish fair procedures regarding the admissibility of evidence of uncharged misconduct. At the hearing on his motion in limine, the defendant sought to exclude evidence of acts of sexual abuse committed prior to May 23, 2002, which were not charged in the information. The defendant also sought to exclude evidence of the acts committed in the complainant's home in Massachusetts, as they were outside the jurisdictional limits of Connecticut. After hearing argument, the trial court ruled that it would admit evidence of both sets of uncharged misconduct to prove motive and intent. Subsequently, the court gave the jury a cautionary instruction after the complainant testified as to uncharged misconduct that occurred prior to May 23, 2002. The court gave another cautionary instruction after the complainant testified as to uncharged misconduct that occurred outside Connecticut. Finally, the court gave a cautionary instruction as to both sets of uncharged misconduct evidence during its final charge. Following trial, the jury returned a verdict of guilty on all three counts; this appeal followed. Additional facts will be set forth as necessary. I The defendant claims that there was insufficient evidence to support his conviction of one count of sexual assault in the first degree in violation of § 53a-70(a)(1), one count of risk of injury to a child in violation of § 53-21(a)(2), and one count of sexual assault in the third degree in violation of § 53a-72a(a)(2). He argues that although the complainant testified in some detail as to the uncharged misconduct, her testimony as to the charged misconduct lacked sufficient specificity to prove the elements of any of the charged offenses beyond a reasonable doubt. Specifically, relying on our Supreme Court's decision in State v. Stephen J. R. , 309 Conn. 586, 72 A.3d 379 (2013), the defendant contends that the complainant needed to testify to at least one specific instance of sexual misconduct and provide a specific time period between May, 2002, and December, 2003, when the charged misconduct occurred. We disagree. "The standard of review for claims of evidentiary insufficiency is well established. In reviewing a sufficiency of the evidence claim, 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.... This court cannot substitute its own judgment for that of the [jury] if there is sufficient evidence to support [its] verdict.... In applying that test, 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." (Citation omitted; internal quotation marks omitted.) State v. Carrillo Palencia , 162 Conn. App. 569, 575-76, 132 A.3d 1097, cert. denied, 320 Conn. 927, 133 A.3d 459 (2016). "While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, 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 whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Stephen J. R. , supra, 309 Conn. at 593-94, 72 A.3d 379. Section 53a-70(a) provides that "[a] person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person . or by the threat of use of force against such other person . which reasonably causes such person to fear physical injury to such person ." " 'Sexual intercourse' means vaginal intercourse.... Penetration, however slight, is sufficient to complete vaginal intercourse . and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim's body." General Statutes § 53a-65(2). "[D]igital penetration, however slight, of the genital opening, is sufficient to constitute vaginal intercourse." (Emphasis omitted.) State v. Albert , 252 Conn. 795, 806-807, 750 A.2d 1037 (2000) ; see also State v. Antonio A. , 90 Conn. App. 286, 295, 878 A.2d 358 (digital penetration constitutes sexual intercourse by object manipulated by actor), cert. denied, 275 Conn. 926, 883 A.2d 1246 (2005), cert. denied, 546 U.S. 1189, 126 S.Ct. 1373, 164 L.Ed. 2d 81 (2006) ; State v. Grant , 33 Conn. App. 133, 141, 634 A.2d 1181 (1993) (same). Section 53-21(a) provides that "[a]ny person who (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . shall be guilty of . a class B felony ." Section 53a-65(8) provides that " '[i]ntimate parts' means the genital area or any substance emitted therefrom, groin, anus or any substance emitted therefrom, inner thighs, buttocks or breasts." Section 53a-72a(a) provides in relevant part that "[a] person is guilty of sexual assault in the third degree when such person (2) engages in sexual intercourse with another person whom the actor knows to be related to him or her within any of the degrees of kindred specified in section 46b-21." In State v. Stephen J. R. , supra, 309 Conn. at 586, 72 A.3d 379, our Supreme Court relied on an opinion of the California Supreme Court, People v. Jones , 51 Cal. 3d 294, 792 P.2d 643, 270 Cal.Rptr. 611 (1990), which delineated a three factor approach for determining whether generic testimony about sexual abuse can amount to sufficient evidence in a child abuse case. These factors were: (1) the complainant must describe the kind of act or acts committed with sufficient specificity to determine that unlawful conduct has occurred and to differentiate between the different types of proscribed conduct; (2) the complainant must describe the number of acts committed with sufficient certainty to support each of the counts alleged; and (3) the complainant must identify the general time period within which these acts occurred. People v. Jones , supra, at 316, 270 Cal.Rptr. 611, 792 P.2d 643. In Stephen J. R. , our Supreme Court applied the Jones factors. The court concluded that the complainant, by testifying that the defendant had made her put his penis in her mouth and that he had put his tongue in her vagina, described the acts of fellatio and cunnilingus with sufficient specificity to support each of the counts alleged for sexual assault in the first degree and risk of injury to a child. State v. Stephen J. R. , supra, at 594, 599, 72 A.3d 379. In the present case, the complainant, while testifying, first described the acts of abuse she suffered prior to May, 2002, and stated that on multiple occasions the defendant penetrated her vagina with his fingers. The complainant was then questioned as to the nature and frequency of the defendant's misconduct between May, 2002, and December, 2003, the period in connection with which the defendant is charged. With respect to that particular time frame, she testified that the defendant's "acts were all the same." Subsequently, the following exchange occurred between the prosecutor and the complainant: "[The Prosecutor]: Between May of 2002, specifically, the end of May of 2002 and December of 2003, when you described [the defendant] visiting your home in . Massachusetts, during that time frame did [the defendant] penetrate your vagina with his finger while at his home in [Connecticut]. "[The Complainant]: Yes. "[The Prosecutor]: Can you tell us approximately how many times? Let me ask you this: Was it more than one time? "[The Complainant]: Yes. "[The Prosecutor]: Was it forceful or consensual? "[The Complainant]: It was always forceful, never consensual. "[The Prosecutor]: And were you between thirteen and fifteen years of age at that time? "[The Complainant]: Yes." As our Supreme Court concluded in Stephen J. R. , we conclude that the complainant in this case described the charged misconduct with sufficient specificity for the jury to determine that the unlawful conduct engaged in by the defendant was digital penetration. For the purposes of § 53a-70(a)(1) and 53a-72a(a)(2), digital penetration constitutes sexual intercourse. See General Statutes § 53a-65(2) (penetration may be committed by object); see also State v. Antonio A. , supra, 90 Conn. App. at 295, 878 A.2d 358 (digital penetration constitutes sexual intercourse). The complainant testified that these acts of digital penetration within the charged period were forceful and that the defendant digitally penetrated her vagina more than once. This testimony was sufficient for the jury reasonably to conclude that the state had proven the elements of one count of sexual assault in the first degree and one count of risk of injury to a child, beyond a reasonable doubt. Further, it is undisputed that the defendant is the complainant's paternal uncle. The evidence therefore was also sufficient for the defendant's conviction of one count of sexual assault in the third degree. The defendant also argues that the complainant did not identify a specific time period between May, 2002, and December, 2003, in which the acts in question occurred. In Stephen J. R. , our Supreme Court noted that the requirement as to a time period was met because if the complainant provided a general time period. State v. Stephen J. R. , supra, 309 Conn. at 600-601, 72 A.3d 379. The complainant in Stephen J. R. was not required to "recall specific dates or additional distinguishing features of each incident ." Id., at 601, 72 A.3d 379. The court clarified that additional details, aside from the general time period, might be relevant in assessing the credibility of the complainant's testimony but would not be essential for a conviction. Id. In the words of the California Supreme Court in Jones , "[d]oes the [complainant]'s failure to specify precise date, time, place or circumstance render generic testimony insufficient? Clearly not. As many of the cases make clear, the particular details surrounding a child molestation charge are not elements of the offense and are unnecessary to sustain a conviction." People v. Jones , supra, 51 Cal. 3d at 315, 270 Cal.Rptr. 611, 792 P.2d 643. Consistent with our Supreme Court's opinion in Stephen J. R. , we find that the complainant testified with sufficient specificity for the jury reasonably to find the defendant guilty of all three charged offenses beyond a reasonable doubt. II The defendant next claims that the trial court abused its discretion by admitting evidence of uncharged misconduct because the evidence was more prejudicial than probative. He argues that the complainant testified in great detail as to the defendant's uncharged sexual misconduct that allegedly occurred prior to the period at issue in this case, i.e., May 23, 2002 to December 31, 2003, and as to the uncharged misconduct that allegedly occurred at the complainant's home in Massachusetts. The defendant argues that the complainant's testimony regarding sexual assaults that allegedly occurred within the period charged in the information, by comparison, was bereft of detail, and therefore that the only direct evidence of his guilt was the uncharged misconduct, which should have been excluded because it was more prejudicial than probative. The state argues that the court did not abuse its discretion in admitting the challenged evidence to prove the defendant's motive and intent or in ruling that the probative value of such evidence outweighed its prejudicial effect. We agree with the state. "As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused.... On the other hand, evidence of crimes so connected with the principal crime by circumstance, motive, design, or innate peculiarity, that the commission of the collateral crime tends directly to prove the commission of the principal crime, is admissible. The rules of policy have no application whatever to evidence of any crime which directly tends to prove that the accused is guilty of the specific offense for which he is on trial.... [Our Supreme Court has] developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions [set forth in § 4-5(b) of the Connecticut Code of Evidence, now § 4-5(c) ]. . Second, the probative value of the evidence must outweigh its prejudicial effect.... Because of the difficulties inherent in this balancing process, the trial court's decision will be reversed only whe[n] abuse of discretion is manifest or whe[n] an injustice appears to have been done.... On review by this court, therefore, every reasonable presumption should be given in favor of the trial court's ruling." (Footnote added; internal quotation marks omitted.) State v. Donald H. G. , 148 Conn. App. 398, 405, 84 A.3d 1216, cert. denied, 311 Conn. 951, 111 A.3d 881 (2014). "In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did." (Internal quotation marks omitted.) State v. Franko , 142 Conn. App. 451, 460, 64 A.3d 807, cert. denied, 310 Conn. 901, 75 A.3d 30 (2013). "[T]he burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant . [who] must show that it is more probable than not that the erroneous action of the court affected the result." (Internal quotation marks omitted.) State v. Donald H. G. , supra, 148 Conn. App. at 407, 84 A.3d 1216. The challenged evidence in this case was admitted to prove that the defendant had the motive and intent to sexually abuse the complainant. The evidence allowed the jury to learn that the defendant had a sexual interest in the complainant, upon which the defendant acted by sexually abusing the complainant before and during the charged period, and by continuing to do so until the last act of abuse in Massachusetts. "When instances of a criminal defendant's prior misconduct involve the same [complainant] as the crimes for which the defendant presently is being tried, those acts are especially illuminative of the defendant's motivation and attitude toward that [complainant], and, thus, of his intent as to the incident in question." (Internal quotation marks omitted.) State v. Gonzalez , 167 Conn. App. 298, 310, 142 A.3d 1227, cert. denied, 323 Conn. 929, 149 A.3d 500 (2016). The materiality of the defendant's prior misconduct to prove motive and intent in this case is therefore readily apparent. The act of abuse in Massachusetts is also material to prove motive and intent for the same reasons. The fact that it occurred after the charged misconduct does not render it inadmissible. See State v. Bunker , 89 Conn. App. 605, 632, 874 A.2d 301 (2005) ("[i]n Connecticut, as in almost all other jurisdictions, [e]vidence of crimes subsequent to the crime charged [is] also admissible for the same purposes as those committed prior to the charge" [internal quotation marks omitted] ), appeal dismissed, 280 Conn. 512, 909 A.2d 521 (2006) ; see also State v. McFarlane , 88 Conn. App. 161, 165, 868 A.2d 130 (subsequent burglaries admissible to prove intent because sufficiently similar even though they occurred at malls rather than freestanding businesses), cert. denied, 273 Conn. 931, 873 A.2d 999 (2005). Because the misconduct in Massachusetts involved the same complainant and was of the same nature as the misconduct charged, it was material to prove the defendant's lustful inclinations toward the complainant. We turn to the question of whether the challenged evidence was more probative than prejudicial. As a factual matter, we disagree with the defendant that the evidence of the charged conduct lacked specific details. After the complainant described the acts of abuse she suffered prior to May, 2002, she was questioned specifically as to the nature and frequency of the acts between May, 2002, and December, 2003, when the abuse ended. She testified that during this time, the defendant's acts toward her were "the same" as they had been before, all involving forcible digital penetration of her vagina, that they occurred on multiple occasions, and that they took place "in [the defendant's] car, on the couch, in the bedroom ." The complainant further testified that on each such occasion, she would attempt to use her body to protect herself from the defendant by "clench[ing] [her] body," but that she never was successful in stopping him. This testimony does not lack detail in comparison to the testimony pertaining to the defendant's uncharged sexual misconduct in the car after renting the "American Pie" movie, while watching the movie itself, or at the complainant's house in Massachusetts. It is therefore unlikely, contrary to the defendant's claim, that evidence of the uncharged misconduct unduly inflamed the jury. "Although evidence of child sex abuse is undoubtedly harmful to the defendant, that is not the test of whether evidence is unduly prejudicial. Rather, evidence is excluded as unduly prejudicial when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence ." Emphasis in original; internal quotation marks omitted.) State v. Donald H. G. , supra, 148 Conn. App. at 408-409, 84 A.3d 1216. In light of these circumstances, we cannot conclude that the trial court abused its discretion in admitting the challenged evidence. The court held a hearing and heard argument on whether the evidence should be excluded. It then analyzed the arguments in light of this court's decision in Donald H. G. and decided in favor of admission. Thereafter, the court gave the jury three separate cautionary instructions, twice upon the introduction of particular portions of the challenged evidence and once more during its final charge. This methodical approach negates the defendant's claim that the court abused its discretion by admitting the challenged evidence. The limiting instructions, which the jury presumably followed, also served, in this case, to overcome the prejudice that attends evidence of uncharged sexual misconduct. See State v. Franko , supra, 142 Conn. App. at 467-68, 64 A.3d 807. Accordingly, we conclude that the trial court did not err in admitting evidence of the defendant's uncharged misconduct. The judgment is affirmed. In this opinion the other judges concurred. Previously, complainants of sexual abuse could prosecute their claims until only two years after attaining the age of majority. Effective May 23, 2002, however, they may do so until the age of forty-eight. See General Statutes § 54-193a. The acts of sexual abuse in this case that occurred prior to May 23, 2002, were therefore outside of the statute and not charged in the information. The court gave the following instruction: "[L]adies and gentlemen, I'm going to give what we call a cautionary instruction to you. You have heard testimony from [the complainant] that the defendant placed his fingers within her vagina and on one occasion touched her on dates before the date set forth in the information. That evidence is being admitted solely to show or establish his motive or purpose in committing the acts alleged in the information. That conduct that-preceding the dates alleged in the information, is not the subject of any criminal charge in this case and is not being admitted to prove the bad character of the defendant or any propensity by him to commit the conduct described in the information or charged in the information. You may not consider that evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charge[d] or to demonstrate a criminal propensity to commit the crimes charged." The court gave the following instruction: "Ladies and gentlemen, you recall I gave an instruction a moment ago about any testimony by this witness as to the defendant touching her prior to the dates charged in the information. The information makes reference only to acts in . Connecticut. So, you just heard testimony from [the complainant] that the defendant placed his fingers inside her vagina in Massachusetts. That evidence is being admitted solely to show or establish his motive or intent in committing the crimes alleged in the information. That conduct is not the subject of any criminal charge in this case and is not being admitted to prove the bad character of the defendant or any propensity by him to commit the crimes alleged in the information. You may not consider that evidence as establish[ing] a predisposition on the part of the defendant to commit any of the crimes alleged or to demonstrate a criminal propensity to commit the crimes alleged." Although this is the second claim in the defendant's appellate brief, we address it first, because "if a defendant prevails on such a claim, the proper remedy is to direct a judgment of acquittal." State v. Ramos , 178 Conn. App. 400, 404, 175 A.3d 1265(2017). Such degrees of kinship include a "person's parent, grandparent, child, grandchild, sibling, parent's sibling, sibling's child, stepparent or stepchild. Any marriage within these degrees is void." General Statutes § 46b-21. The state argues that the defendant did not preserve his claim that the uncharged misconduct was the most direct evidence of his guilt because at trial, the defendant objected to that evidence only on the ground that it was more prejudicial than probative. We review the defendant's claim, however, as we understand it to be that the challenged evidence is more prejudicial than probative in part because it was the most direct evidence. We note additionally, that although the challenged evidence was admitted to prove motive or intent with a cautionary instruction against its use for propensity, evidence of other sexual misconduct is now admissible to prove propensity for aberrant and compulsive sexual behavior under § 4-5(b) of the Connecticut Code of Evidence. See State v. DeJesus , 288 Conn. 418, 953 A.2d 45 (2008). Section 4-5(c) (previously Section 4-5 [b] ) of the Connecticut Code of Evidence provides: "Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony."

12493437

STATE of Connecticut v. Jayevon BLAINE

State v. Blaine

2018-02-06

AC 36832

622

630

180 A.3d 622

180

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.942366+00:00

Fastcase

STATE of Connecticut v. Jayevon BLAINE

STATE of Connecticut v. Jayevon BLAINE AC 36832 Appellate Court of Connecticut. Argued October 4, 2017 Officially released February 6, 2018 Katherine C. Essington, for the appellant (defendant). Adam E. Mattei, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Howard S. Stein, senior assistant state's attorney, for the appellee (state). Sheldon, Prescott and Beach, Js.

3762

22402

BEACH, J. This case returns to us on remand from our Supreme Court with direction to consider the claim of plain error raised by the defendant, Jayevon Blaine, in light of State v. McClain, 324 Conn. 782, 155 A.3d 209 (2017). The defendant previously appealed from the judgment of conviction of conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48 and 53a-134 (a) (2). We held in our prior opinion that the waiver of a claim of instructional error pursuant to State v. Kitchens , 299 Conn. 447, 10 A.3d 942 (2011), precluded review of the claim of plain error. State v. Blaine , 168 Conn. App. 505, 517-19 and n.5, 147 A.3d 1044 (2016), remanded in part, 325 Conn. 918, 163 A.3d 618 (2017). In State v. McClain , supra, at 815, 155 A.3d 209, our Supreme Court held that a Kitchens waiver did not preclude a claim of plain error. We now consider the defendant's claim that the trial court committed plain error by incorrectly instructing the jury on the requisite intent to find him guilty of conspiracy to commit robbery in the first degree. We conclude that the record does not support the claim that the pertinent instruction constituted plain error. Accordingly, we affirm the judgment of the trial court. The following facts are relevant to this appeal. After the killing of the victim, Kevin Soler, on Bretton Street in Bridgeport, the defendant was arrested and charged with murder in violation of General Statutes § 53a-54a (a), attempt to commit robbery in the first degree in violation of General Statutes § 53a-49 and 53a-134 (a) (2), felony murder in violation of General Statutes § 53a-54c, and conspiracy to commit robbery in the first degree in violation of § 53a-48 and 53a-134 (a) (2). As we stated in our prior opinion: "[F]our people . together with the defendant, were charged with, inter alia, conspiracy to commit robbery in the first degree. "All four of the defendant's coconspirators, [Jihad] Clemons, Craig Waddell, Hank Palmer, and Mike Lomax, who had known each other for several years but had only recently been introduced to the defendant, testified for the state at the defendant's trial. The crux of their testimony, as it related to the charge of conspiracy, was that they and the defendant had entered into an agreement to rob Robert Taylor, a drug dealer. "Clemons was the first of the conspirators to testify. He testified that on September 6, 2009, he and Waddell visited their friend, Braxton Gardner, and decided to buy some marijuana. To that end, Gardner made a phone call to Taylor, a drug dealer with whom he was familiar. Gardner met Taylor a block or two from his house and completed the purchase. Clemons, Waddell, and Gardner smoked the marijuana that they had purchased, and then Gardner left to attend his younger brother's football game. "Shortly thereafter, Clemons and Waddell decided that they wanted more marijuana, so they called Gardner to get Taylor's telephone number. Clemons then called Taylor, who met them near Gardner's house and sold them more marijuana. While Clemons and Waddell were smoking the newly purchased marijuana, they walked to Palmer's house and discussed robbing Taylor. Lomax arrived at Palmer's house, and the four men discussed their plan to rob Taylor. "Clemons, Waddell, and Lomax left Palmer's house-leaving Palmer behind-and drove Lomax' car, a white Honda, to [DeAndre] Harper's house to ask Harper if he would like to be involved in their planned robbery of Taylor. They found Harper outside on his porch with his cousin, the defendant. Harper and the defendant approached Lomax' vehicle, where they discussed the robbery. Clemons, Waddell, and Lomax first asked Harper if he wanted to participate in the robbery, but Harper declined. They then asked the defendant if he wanted to participate, and he agreed to do so. The defendant got into Lomax' vehicle, and the four men returned to Palmer's house. "When they arrived at Palmer's house, the five men spent forty-five minutes further discussing their plan to rob Taylor. They agreed that Clemons would call Taylor to set up a meeting and that the defendant would rob him using a nine millimeter handgun, while Waddell stood nearby. Lomax would drive the car to the place of the meeting, and Palmer would stay in the car with Lomax. They agreed that they would steal Taylor's drugs, car, and cell phone. "At some point after dark, the men went to meet Taylor. Taylor had told Clemons that he was running late because he had a flat tire. Clemons parted company with the others to go home because he was late for his curfew. Meanwhile . Taylor got a ride to the rendezvous with his friend, Soler, and Soler's girlfriend, [Priscilla] LaBoy. Soler parked at the agreed upon location, and a person appeared; Soler and the person conversed because Soler had agreed to conclude the sale on Taylor's behalf. The other person then shot Soler." (Footnote added.) State v. Blaine, supra, 168 Conn. App. at 508-10, 147 A.3d 1044. Soler was later found dead by the Bridgeport police. Id., at 507, 147 A.3d 1044. The jury found the defendant guilty of conspiracy to commit robbery in the first degree but not guilty of the other charges. On appeal to this court, the defendant claimed that (1) there was insufficient evidence to sustain his conviction of conspiracy to commit robbery in the first degree, (2) the court erred in denying his request for a jury instruction on third-party culpability, and (3) the court erred in failing to instruct the jury according to the principles set forth in State v. Pond, 138 Conn. App. 228, 50 A.3d 950 (2012), aff'd, 315 Conn. 451, 108 A.3d 1083 (2015). See State v. Blaine, supra, 168 Conn. App. at 507, 517, 147 A.3d 1044. In affirming the trial court's judgment, we concluded that there was sufficient evidence to sustain the defendant's conviction and that any error resulting from the court's failure to provide a third-party culpability instruction was harmless. Id., at 507, 517, 147 A.3d 1044. As to the defendant's third claim, that there was plain error under Pond , we concluded that plain error relief was unavailable. Id., at 518, 147 A.3d 1044. The defendant then sought and was granted certification to appeal by our Supreme Court on his claim of plain error, and the case was remanded to this court with direction to consider the defendant's claim in light of McClain . See State v. Blaine, 325 Conn. 918, 163 A.3d 618 (2017). The only issue before us on remand is whether the trial court's instruction to the jury regarding the requisite intent for conspiracy to commit robbery in the first degree constituted plain error. Two elements must be satisfied in order to support a conclusion that a judgment must be reversed on the basis of plain error. "An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily [discernible] on the face of a factually adequate record, [and] also . obvious in the sense of not debatable. . This determination clearly requires a review of the plain error claim presented in light of the record. Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application." (Internal quotation marks omitted.) State v. McClain , supra, 324 Conn. at 812, 155 A.3d 209. "[T]he plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . In addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice." (Citation omitted; internal quotation marks omitted.) Id. An appellant "cannot prevail . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Emphasis in original; internal quotation marks omitted.) Id.; see also State v. Coward, 292 Conn. 296, 307, 972 A.2d 691 (2009). "It is axiomatic that, [t]he plain error doctrine . is not . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment . for reasons of policy.... Put another way, plain error review is reserved for only the most egregious errors. When an error of such a magnitude exists, it necessitates reversal." (Citation omitted; internal quotation marks omitted.) State v. McClain , supra, 324 Conn. at 813-14, 155 A.3d 209. "Our standard of review for claims of instructional impropriety is well established. The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which they might find to be established . When reviewing [a] challenged jury instruction . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . and judged by its total effect rather than by its individual component parts.... [T]he test of a court's charge is . whether it fairly presents the case to the jury in such a way that injustice is not done to either party . In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial." (Internal quotation marks omitted.) State v. Lawrence , 282 Conn. 141, 179, 920 A.2d 236 (2007). The defendant claims that the trial court failed to instruct the jury that in order to find him guilty of the conspiracy with which he was charged, it had to find that he had intended that one or more participants in the robbery be armed with a deadly weapon and that the failure so to instruct constituted plain error. In State v. Pond , supra, 138 Conn. App. at 233-34, 50 A.3d 950, we held that to be convicted of conspiracy, a defendant must have specifically intended that every element of the planned offense be accomplished, including elements of the underlying crime that do not require specific intent. We turn to an analysis of the court's instructions to the jury in the present case. Two portions are especially pertinent. The court addressed the elements of the substantive crime of robbery in the first degree in violation of § 53a-134 (a) (2). The court instructed that robbery was a larceny committed by the use or threatened use of force. Larceny, in turn, required an intent to deprive another of property. The court then charged that the "third element" was that in "the course of the commission of the robbery or immediate flight from the crime the defendant or another participant in the crime was armed with a deadly weapon." Later in the charge the court instructed on the elements of the crime of conspiracy to commit robbery in the first degree: "One, there was an agreement between the defendant and one or more persons to engage in conduct constituting the crime of robbery in the first degree; two, there was an overt act in furtherance of the agreement by any one of the persons; and, three, the defendant specifically intended to commit the crime of robbery in the first degree. " (Emphasis added.) The court defined "agreement" and "overt act," and then instructed: "Element three, criminal intent. The third element is that the defendant had the intent to commit robbery in the first degree. The defendant must have had specific intent. The defendant may not be found guilty unless the state has proved beyond a reasonable doubt that he specifically intended to commit robbery in the first degree when he entered into the agreement." After defining specific intent, the court summarized its charge regarding conspiracy: "[One] the state must prove beyond a reasonable doubt that the defendant had an agreement with one or more persons to commit robbery in the first degree. Two, at least one of the coconspirators did an overt act in furtherance of the conspiracy and, three, the defendant specifically intended to commit robbery in the first degree." The defendant claims that because the court did not expressly and specifically instruct the jury that, in order to find him guilty, it had to find that he specifically agreed that a participant in the crime would be armed with a deadly weapon, the court committed plain error. He relies primarily on State v. Pond , supra 138 Conn. App. at 228, 50 A.3d 950. In Pond , the defendant was charged with attempt to commit robbery in the second degree and conspiracy to commit robbery in the second degree. Id., at 232, 50 A.3d 950. The substantive crime of robbery in the second degree, as charged, included as an element the display or threatened use of a weapon. This court observed that the instructions in Pond were "to the effect that the specific intent required for the conspiracy charge was that as for a charge of larceny." Id., at 237, 50 A.3d 950. The trial court instructed the jury as to the intent element of the conspiracy charge as follows: "The third element is that the defendant had the intent to commit robbery in the second degree. The intent for that crime is that at the time of the agreement he intended to commit larceny. The defendant may not be found guilty unless the state has proved beyond a reasonable doubt that he specifically intended to commit a larceny when he entered into the agreement." (Internal quotation marks omitted.) Id. The court then concluded: "In summary, the state must prove beyond a reasonable doubt that the defendant had an agreement with one or more other persons to commit robbery in the second degree, at least one of the coconspirators did an overt act in furtherance of the conspiracy, and the defendant specifically intended to deprive the owner of his property." (Internal quotation marks omitted.) Id., at 237-38, 50 A.3d 950. This court afforded review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and, relying primarily on State v. Padua , 273 Conn. 138, 869 A.2d 192 (2005), reversed the judgment, because "[t]he court did not tell the jury that the state was required to prove that the defendant specifically intended that, in the course of the robbery, what was represented to be a deadly weapon or dangerous instrument would be used or displayed. Contrary to the state's argument, there is nothing in the rest of the language of the jury instructions that would render this omission in the instruction harmless." State v. Pond, supra, 138 Conn. App. at 238-39, 50 A.3d 950. There are similarities and distinctions between Pond and the present case. It is now well established that a conviction of conspiracy to commit a crime requires proof of specific intent to commit all elements of the underlying crime, even if only general intent or, conceivably, no intent at all is required as to one or more elements necessary for conviction of the underlying substantive crime. See State v. Padua , supra, 273 Conn. at 138, 869 A.2d 192 ; see also State v. Pond , 315 Conn. 451, 108 A.3d 1083 (2015). In Pond , however, the trial court not only failed to instruct the jury that specific intent was required as to the display or threatened use of a weapon, it also expressly stated that the specific intent required to convict was that the defendant intended, at the time of agreement, to commit larceny. Additionally, because the defendant in Pond prevailed pursuant to Golding , application of the plain error doctrine was not necessary. In the present case, the court did not expressly limit the requirement of specific intent to fewer than all the elements of the substantive crime. The court, instead, charged that in order to find the defendant guilty, the jury had to find that he specifically intended to commit the crime of robbery in the first degree; the court previously had included in the definition of that substantive crime the element that one or more participants be armed with a deadly weapon. Because the "armed with a deadly weapon" element had been included in the definition of the underlying crime and the conspiracy charge required for conviction a finding that the defendant intended to commit the substantive crime, it is at least arguable that the instruction logically required the jury to find that the defendant had agreed that a participant would be armed with a deadly weapon. If it is fairly debatable whether an action of the trial court is erroneous, the error, if any, is not plain error, and the judgment should be affirmed. See State v. McClain , supra, 324 Conn. at 812, 155 A.3d 209. Even if the instruction did constitute obvious and undebatable error, however, the record does not satisfy the second prong required for reversal pursuant to the plain error doctrine, because the record does not show manifest injustice. See State v. Coward, supra, 292 Conn. at 307, 972 A.2d 691 ("under the second prong of the [plain error doctrine] we must determine whether the consequences of the error are so grievous as to be fundamentally unfair or manifestly unjust"). In State v. Padua , supra, 273 Conn. at 164-65, 869 A.2d 192, for example, our Supreme Court considered a case in which conspiracy to sell marijuana within 1500 feet of a public housing project was alleged, and the trial court had not instructed that, in order to find the defendant guilty, the jury had to find that he agreed to commit the crime within 1500 feet of a public housing project. Our Supreme Court held that, although the instruction was improper, the error was harmless in light of overwhelming evidence regarding intent to sell marijuana within 1500 feet of a public housing project. In the present case, each of the four coconspirators testified that the plan was to rob Taylor with a weapon and that the defendant was to wield the weapon. Every witness who testified that the agreement existed also testified that use of a weapon was contemplated. Although the defendant denied involvement altogether, there was ample evidence that he had agreed to the robbery and that someone would use a weapon. A similar situation in Padua led to a conclusion of harmless error; here, we cannot find that a less egregious error, if indeed there was an error, amounted to manifest injustice. See also State v. Lawrence , supra, 282 Conn. at 183, 920 A.2d 236 (possible defect in presumption of innocence instruction did not affect fairness of trial when instruction viewed in entirety); State v. LaBrec, 270 Conn. 548, 560, 854 A.2d 1 (2004) (instruction that original jurors should review their previous deliberations with substituted alternate juror not extraordinary error). Under these circumstances, we cannot conclude that any error in the court's instructions to the jury affected "the fairness and integrity of and public confidence in the judicial proceedings." (Internal quotation marks omitted.) State v. McClain , supra, 324 Conn. at 812, 155 A.3d 209. Accordingly, we decline to reverse the trial court's judgment under the plain error doctrine. The judgment is affirmed. In this opinion the other judges concurred. See State v. Blaine, 325 Conn. 918, 163 A.3d 618 (2017). General Statutes § 53a-48 provides in relevant part: "(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy...." General Statutes 53a-134 (a) provides in relevant part: "A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime . (2) is armed with a deadly weapon ." See generally State v. Blaine, supra, 168 Conn. App. at 506-507, 147 A.3d 1044. Waddell was the only witness who gave a statement prior to the trial that he had seen the defendant shoot the victim. He testified during the trial, however, that he never actually saw the shooting, but that he stood at some distance from the defendant and only heard gunshots. The jury was allowed to hear testimony that Waddell had changed his statement. The defendant sought to bolster his claim by stressing that the jury found him not guilty of the substantive crimes charged, yet guilty of conspiracy, where the evidence regarding the agreement also suggested that the defendant was the shooter. If the jury did not believe the testimony that he was the shooter, he argued, then it could not believe that he participated in the agreement. We rejected that contention in State v. Blaine , supra, 168 Conn. App. at 512-13, 147 A.3d 1044. The jury's verdict perhaps can be rationalized, though it need not be, by reference to the fact that no coconspirator testified that he saw the defendant shoot the victim. See footnote 4 of this opinion. Because the trial in the present case occurred after the Appellate Court's decision in Pond but before the Supreme Court's affirmance, we primarily consider the Appellate Court's opinion for the purpose of the plain error analysis. Thus, the jury logically could have concluded that the only specific intent required for conviction was the intent to commit a larceny. The correlation between the conspiracy charge and the underlying crime in Padua corresponded to the structures of this case and Pond , in that proof of intent to sell marijuana within 1500 feet of a public housing project was not required for conviction of the underlying offense.

12504615

Janine LESUEUR v. Andrew LESUEUR

Lesueur v. Lesueur

2018-12-04

AC 39759

1082

1103

199 A.3d 1082

199

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:42.438369+00:00

Fastcase

Janine LESUEUR v. Andrew LESUEUR

Janine LESUEUR v. Andrew LESUEUR AC 39759 Appellate Court of Connecticut. Argued March 23, 2018 Officially released December 4, 2018 Janet A. Battey, with whom were Olivia M. Hebenstreit and, on the brief, Gaetano Ferro, New Canaan, for the appellant (plaintiff). Harold R. Burke, Greenwich, for the appellee (defendant). Lavine, Prescott and Eveleigh, Js.

10655

66538

LAVINE, J. In this postmarital dissolution appeal, the plaintiff, Janine LeSueur, appeals from the postjudgment orders of the trial court granting the motion for modification of custody and child support filed by the defendant, Andrew LeSueur, and denying her motion for modification of unallocated alimony and child support. Specifically, the plaintiff claims that the court, Tindill, J. , (1) abused its discretion by granting the defendant's motion to modify custody and child support because the child support order is predicated on clearly erroneous factual findings and because it terminated the defendant's child support obligation retroactively without sufficient information to evaluate the parties' financial circumstances, and without considering that she continued to incur and pay expenses for the parties' son from September 2, 2015, until the date of the hearing; (2) misconstrued the parties' separation agreement (agreement) regarding the parties' obligations to pay for their children's postsecondary education; and (3) abused its discretion by denying her motion to modify unallocated alimony and support. We affirm in part and reverse in part the judgment of the trial court. The parties' marital history previously was set forth in LeSueur v. LeSueur , 172 Conn. App. 767, 162 A.3d 32 (2017), which concerned an appeal by the defendant from certain postjudgment motions (defendant's appeal). The parties were married on November 28, 1992, and divorced on January 27, 2011. Id., at 770, 162 A.3d 32. At the time of dissolution, "the parties had two minor children: a daughter, born in July, 1997; and a son, born in January, 1999. The judgment of dissolution incorporated the parties' separation agreement that provided that the plaintiff and the defendant would have joint legal custody and the plaintiff primary physical custody of the two children. The separation agreement also provided . that the defendant . pay the plaintiff unallocated alimony and child support from March 1, 2011 until June 30, 2020." Id. Subsequently, the defendant assumed primary physical custody, first of the parties' daughter; id., at 770-71, 162 A.3d 32 ; and then their son. The defendant's appeal concerned issues related to child support for the parties' daughter. The present appeal concerns child support related to their son, among other things, and is factually and procedurally distinct from the defendant's appeal. The record in the present appeal reveals the following procedural history. On August 14, 2015, the defendant filed a motion to modify custody and child support, alleging in part that circumstances regarding custody of the parties' son had changed substantially. The defendant represented that the parties had agreed that, as of July 31, 2015, their son would live with the defendant and have liberal visitation with the plaintiff. The defendant, therefore, asked the court to terminate his child support obligation to the plaintiff and to order the plaintiff to pay him child support. On February 8, 2016, the court accepted the parties' stipulation regarding the son's custody change and scheduled a hearing on the issue of child support. On February 10, 2016, the plaintiff filed two motions for modification of certain provisions of the separation agreement. In one motion, she claimed that there had been a substantial change in her financial circumstances due to a reduction in her employment and salary. She, therefore, asked the court to increase the amount of unallocated alimony and child support she received from the defendant. In her second motion, titled "Motion for Modification of Children's Expenses and Tuition, Postjudgment," the plaintiff claimed that there had been a substantial change in her financial circumstances, and therefore, she asked the court to order the defendant to pay 100 percent of the educational "add-on" expenses for their son and all costs associated with his private school tuition. (Internal quotation marks omitted.) The court heard argument on the parties' motions on three days in the spring of 2016, and requested that the parties submit posthearing briefs. The court issued orders on the defendant's motion to modify child support on October 11, 2016. The court found that the parties' son had been living with the defendant since the date he filed his motion to modify child support and that he had continued to pay the plaintiff child support in the amount of $996.27 per week since September 1, 2015. The court granted the defendant's motion to modify child support, thereby terminating his child support obligation to the plaintiff retroactive to September 2, 2015, and ordered the plaintiff to reimburse the defendant for the child support that he had paid her while their son was living with him. On October 13, 2016, the court issued orders on the plaintiff's motion for modification of alimony and support and motion for modification of children's expenses and private school tuition. The court found that the plaintiff's salary had decreased since the time of dissolution and that the decrease constituted a substantial change of circumstances. The court also found that the plaintiff's monthly expenses had decreased since January 27, 2011. In addition, the court found that the pretax income from employment formulae used to calculate the amount of unallocated support the defendant was to pay the plaintiff continued to be sufficient to fulfill the intended purpose of equalizing the incomes of the parties and supporting the children. See footnote 3 of this opinion. The court, therefore, denied the plaintiff's motion to modify unallocated alimony and child support. Pursuant to the oral request of the parties' counsel; see footnote 5 of this opinion; the court found that, had the family stayed intact, the parties more likely than not would have provided support for their children's postsecondary education. It also found that the parties are well educated and have the income and assets to assist their children with the cost of higher education. The court found ample evidence of the children's academic commitment, preparedness, and athletic prowess. The parties mutually had agreed that their daughter should attend Princeton University and that their son should attend Dartmouth College. The court also concluded that, pursuant to the agreement, neither the "UConn cap" nor the cost of a four year degree within the Connecticut state university system was applicable. The court, therefore, ordered the parties to "timely pay education support . to Princeton University and Dartmouth College" as required by paragraphs 7 (f) and 13 (B) (iv) of the separation agreement. The plaintiff appealed. We begin with the well settled standard of review in family matters. "An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action." (Internal quotation marks omitted.) Ferraro v. Ferraro , 168 Conn. App. 723, 727, 147 A.3d 188 (2016). I The plaintiff's first claim is that the court abused its discretion by granting the defendant's motion to modify custody and child support because (1) its child support order is predicated on a clearly erroneous factual finding, and (2) it terminated the defendant's child support obligation retroactively without sufficient information to calculate the parties' financial circumstances as of September 2, 2015, and without considering that she continued to incur and pay expenses related to the son. We agree that the court's order that the plaintiff pay child support is predicated on a clearly erroneous factual finding. We do not agree, however, that the court lacked sufficient information regarding the parties' financial circumstances as of September 2, 2015, or that the voluntary expenses the plaintiff incurred overcame the presumption that child support follows the child. The following additional facts are relevant to our resolution of this claim. As previously stated, as of July 31, 2015, pursuant to the parties' informal agreement, their son began to reside with the defendant. On August 14, 2015, the defendant filed a motion for modification of custody and child support. He represented that there had been a substantial change in circumstances due to the fact that the parties' son was living with him and requested that, because he had become financially responsible for their son, his child support obligation to the plaintiff be terminated and that the plaintiff be ordered to pay him child support. On February 8, 2016, the court accepted the parties' stipulation that their son reside with the defendant and ordered a hearing to be held on the issue of child support. The parties appeared before the court for an evidentiary hearing on March 28, May 17, and June 1, 2016. At that time, the defendant argued that the change in the primary physical custody of the parties' son required a modification of the child support portion of the unallocated support order because child support follows the child. He also argued that he had been paying the plaintiff child support pursuant to the court's July, 2015 order that modified his child support obligation when he assumed custody of the daughter. The defendant contended that, as a matter of law and equity, he was entitled to be reimbursed by the plaintiff for the child support he had paid her since September 10, 2015, the date he served the plaintiff with the motion to modify child support. The plaintiff argued that the court should not modify the defendant's child support obligation because the agreement called for unallocated alimony and child support calculated on the basis of the defendant's pretax income from employment and that alimony and child support should not be broken into separate amounts. The plaintiff requested that, if the court granted modification of child support and did so retroactively, to order retroactivity from February 8, 2016, the date the transfer of custody was accepted by the court, not the date the defendant's motion to modify was served. In addition, the plaintiff claimed she continued to incur expenses for their son after the motion was served. In its order, the court found, contrary to the plaintiff's argument, that the defendant was not seeking to modify the term, duration, or the percentage of the unallocated support formulae set forth in paragraph 12 of the agreement, but was seeking a determination of the plaintiff's child support obligation for the parties' son who resided with him. The court also found that the defendant had demonstrated a substantial change in circumstances that justified a modification of child support, i.e., the son was living full-time with him as of the date of the motion for modification was filed. The defendant had paid the plaintiff child support in the amount of $996.27 per week since September 1, 2015. The court, therefore, granted the defendant's motion to modify child support and terminated his child support obligation retroactively to September 2, 2015. The court found that the defendant was entitled to reimbursement from the plaintiff in the amount of $57,783.66. The court found on the basis of the parties combined weekly income of $12,980 that the plaintiff's presumptive child support obligation for the parties' son pursuant to the guidelines was $137 per week. The court, therefore, ordered the plaintiff to pay the defendant $137 per week in child support, commencing November 1, 2016. A The plaintiff claims that the court improperly granted the defendant's motion to modify child support and ordered her to pay the defendant child support on the ground that the court's factual finding regarding her annual income is clearly erroneous because it improperly includes alimony and child support income. We agree. "Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.... A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... Therefore, to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did." (Citation omitted; internal quotation marks omitted.) Mensah v. Mensah , 145 Conn. App. 644, 651-52, 75 A.3d 92 (2013). "The [plaintiff] is entitled to relief from the trial court's improper rulings only if one or more of those rulings were harmful.... It is well settled that the burden of establishing harm rests on the appellant.... To meet this burden in a civil case, the appellant must show that the ruling would likely affect the result." (Citations omitted; internal quotation marks omitted.) Tevolini v. Tevolini , 66 Conn. App. 16, 30-31, 783 A.2d 1157 (2001). The following additional facts are relevant to our resolution of this claim. On March 29, 2017, after she had appealed, the plaintiff filed a motion for articulation; see Practice Book § 66-5 ; requesting, among other things, that the trial court articulate the basis of its calculation of the court's child support guidelines worksheet docket number 150. The court denied the motion for articulation, and the plaintiff filed a motion for review in this court. See Practice Book § 66-7. This court granted the motion for review and ordered the trial court to articulate, in relevant part, the following: (1) the factual basis for stating on worksheet number 150 that the plaintiff's gross weekly income was $5820 and that her net weekly income was $3680; (2) whether the alimony received by the plaintiff was included in the calculation that determined the plaintiff's gross income as stated on worksheet number 150; and (3) the factual basis for stating on worksheet number 150 that the defendant's net weekly income was $9301. In its articulation, the trial court stated that the factual basis for using $5280 as the plaintiff's gross weekly income and $3680 as her net weekly income was the plaintiff's May 17 and May 20, 2016 financial affidavits and her May 17, 2016 testimony. The court further stated that the alimony received by the plaintiff was not included in her gross income amount on worksheet number 150. Additionally, the court articulated that the factual basis for using $9301 as the defendant's net weekly income was his May 17, 2016 financial affidavit and his testimony on May 17, 2016. On appeal, the plaintiff claims that in determining her annual income, the court erred by utilizing the information on the financial affidavit she submitted on May 20, 2016, which included income in the form of alimony, and not the worksheets submitted by the parties at the hearing on May 17, 2016. The worksheet that the plaintiff submitted states that her gross weekly income is $1827 and her net weekly income is $1332. The worksheet that the defendant submitted states that the plaintiff's gross weekly income is $2697 and her net weekly income is $2141. Neither of the worksheets submitted by the parties included alimony income to the plaintiff. In October, 2016, when the court issued its decisions on the motions for modification submitted by the parties, it appended worksheet number 150 to its orders. Work-sheet number 150 states the court's findings that the plaintiff's gross weekly income was $5820 and her net weekly income was $3680. In its articulation, the court stated that it used the plaintiff's financial affidavit, not her worksheet, to make its calculations, and that it did not include the plaintiff's income from alimony when it determined her annual income. On the basis of our review of the exhibits in the record and the discrepancies between the parties' worksheets regarding the plaintiff's income and the court's determination, we are left with the firm conviction that a mistake has been made. There is no legally proper evidentiary basis before the court to support its determination of the plaintiff's gross or net weekly income at the time it considered the motions for modification. In addition to using the incorrect documents to calculate the plaintiff's income, the plaintiff contends that the court improperly included alimony in its calculations. The plaintiff included the alimony she received on her financial affidavit, and therefore, because the court used the plaintiff's financial affidavit, it necessarily must have included the plaintiff's alimony when it performed its calculations. We agree with the plaintiff that, pursuant to our child support statutes and regulations, the court may not include income from alimony when it calculates the income of an alimony recipient for purposes of determining child support. "Our review of the court's interpretation of . § 46b-215a-1 (11) . of the Regulations of Connecticut State Agencies is plenary.... Section 46b-215a-1(11) of the Regulations of Connecticut State Agencies defines gross income as the average weekly earned and unearned income from all sources before deductions . That section includes a nonexhaustive list of twenty-two inclusions. In that list of inclusions is: alimony being paid by an individual who is not a party to the support determination.... Regs., Conn. State Agencies § 46b-215a-1(11)(A)(xix). The specific wording of this inclusion makes clear that only alimony received from a nonparty to the support determination is included in gross income." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Robinson v. Robinson , 172 Conn. App. 393, 397-98, 160 A.3d 376, cert. denied, 326 Conn. 921, 169 A.3d 233 (2017) ; see also General Statutes § 46b-84. The defendant agrees that the court's finding of the plaintiff's weekly income is erroneous, but he argues that the error is harmless and had a de minimis impact on the court's order that the plaintiff pay him $137 per week in child support. The defendant, however, provides no legal support for his de minimis argument, and we are aware of none. The defendant's argument is predicated on his calculation of the presumptive minimum child support pursuant to the child support guidelines. "[W]hen a family's combined net weekly income exceeds $4000, the court should treat the percentage set forth in the schedule at the highest income level as the presumptive ceiling on the child support obligation, subject to rebuttal by application of the deviation criteria enumerated in the guidelines, as well as the statutory factors described in [General Statutes] § 46b-84(d)." Maturo v. Maturo , 296 Conn. 80, 106, 995 A.2d 1 (2010). "The guidelines provide in relevant part that, [w]hen the parents' combined net weekly income exceeds [$4000], child support awards shall be determined on a case-by-case basis, and the current support prescribed at the [$4000] net weekly income level shall be the minimum presumptive amount." (Internal quotation marks omitted.) Id., at 91, 995 A.2d 1. The guidelines establish a child support award as "the entire payment obligation of the noncustodial parent, as determined under the . guidelines ." (Emphasis omitted; internal quotation marks omitted.) Id., at 117, 995 A.2d 1. On the basis of his weekly income alone, the defendant argues that the parties' combined weekly income exceeds $4000, and therefore the child support for their son should not exceed the presumptive maximum of 12.04 percent of that income. Given the disparity in the plaintiff's annual income reported on the defendant's worksheet and the court's worksheets, the defendant calculates that the range of the parties' combined weekly income is between $10,815.38 and $11,261.63, which results in a presumptive maximum child support award of between $1302.17 and $1355.90 per week. Although we may agree that there is a permissible range between the presumptive minimum and maximum child support when the parties' combined income exceeds $4000 per week; see Dowling v. Szymczak , 309 Conn. 390, 402, 72 A.3d 1 (2013) ("as long as the child support award is derived from a total support obligation within this range-between the presumptive minimum dollar amount and the presumptive maximum percentage of net income-a finding in support of a deviation is not necessary"); there is no corresponding permissible range of child support owed by the noncustodial parent. A noncustodial parent's child support obligation is to be based on his or her proportionate share of the parties' combined net income. Id., at 404, 72 A.3d 1. In the present case, the trial court had two sets of worksheets filed by the parties and two sets of financial affidavits. The plaintiff's stated income is different on each page and consequently each figure constitutes a different percentage of the parties' combined net weekly income, which affects the amount of the plaintiff's child support obligation regardless of the presumptive amount. Moreover, the trial court calculated the plaintiff's child support share on the basis of her income that included alimony, which is not permitted by our child support statutes or regulations. Although, as the defendant argues, the difference between the child support the court ordered the plaintiff to pay and what an accurate determination of her weekly income requires her to pay may not be great, the evidentiary basis of the court's order is unclear. See Ferraro v. Ferraro , supra, 168 Conn. App. at 731, 147 A.3d 188 (figures on worksheets and affidavits did not match, court must provide basis for support determinations it makes). Moreover, the error is harmful. The plaintiff's presumptive share of support may have been less than $137 if the court had not included alimony in its calculation of the parties' combined weekly income. The court's finding with respect to the plaintiff's income is clearly erroneous and for that reason, the court improperly granted the defendant's motion to modify child support with respect to the child support it ordered the plaintiff to pay. We, therefore, reverse the judgment in part and remand the case for a new hearing with regard to the parties' respective child support obligations. B The plaintiff's second claim regarding the court's child support order is that the court abused its discretion by terminating the defendant's child support obligation retroactively because (1) the court lacked sufficient information to calculate the parties' financial circumstances as of September 2, 2015, and (2) she continued to pay for some of the expenses of the parties' son from September 2, 2105, until the time of the hearing. We disagree. "Where the legal conclusions of the trial court are challenged, on appeal those conclusions are subject only to the test of abuse of discretion.... Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.... The salient inquiry is whether the court could have reasonably concluded as it did.... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action." (Internal quotation marks omitted.) Hayward v. Hayward , 53 Conn. App. 1, 8, 752 A.2d 1087 (1999). Trial courts have "broad discretion in deciding motions for modification." Noce v. Noce , 181 Conn. 145, 149, 434 A.2d 345 (1980). General Statutes § 46b-86(a)"governs the availability of retroactive modification of unallocated alimony and child support orders." Cannon v. Cannon , 109 Conn. App. 844, 849, 953 A.2d 694 (2008). Section 46b-86(a) provides, in relevant part: "No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party ." (Emphasis added.) "Although there is no bright line test for determining the date of retroactivity of child support payments, this court has set forth factors that may be considered. Specifically, in [ Hane v. Hane 158 Conn. App. 167, 176, 118 A.3d 685 (2015), this court] expressly noted that a retroactive award may take into account the long time period between the date of filing a motion to modify, or . the contractual retroactive date, and the date that motion is heard . The court may examine the changes in the parties' incomes and needs during the time the motion is pending to fashion an equitable award based on those changes.... Moreover, § 46b-86(a) accords deference to the trial court by permitting it to make a modification to a party's child support obligation retroactive to any period during which there is a pending motion for modification." (Citation omitted; emphasis in original; internal quotation marks omitted.) LeSueur v. LeSueur , supra, 172 Conn. App. at 780, 162 A.3d 32. The following facts are relevant to the plaintiff's claim. The defendant previously had filed a motion for modification of unallocated child support and custody on June 3, 2014, due to the fact that he had assumed physical custody of the parties' daughter. In that motion, the defendant did not request modification retroactive to the date the motion was served on the plaintiff. Id., at 782, 162 A.3d 32. The parties' agreement that their daughter live with the defendant was accepted by the court, Hon. Stanley Novack , judge trial referee, in December, 2014, and the matter was continued several times thereafter. Id. The defendant did not request retroactive modification until February 25, 2015. Id. The issue of child support for the parties' daughter was not addressed until May 7, 2015, when Judge Tindill held a hearing on the defendant's motion for modification of unallocated alimony and child support. Id., at 773, 162 A.3d 32. The court issued a memorandum of decision regarding child support on July 31, 2015. Id. Almost immediately thereafter, the parties' son took up residence in the defendant's home, and the defendant filed the present motion for modification of custody and child support on August 14, 2015. The motion was served on the plaintiff on September 10, 2015. On the first day of the hearing on the present motions, the court stated that it was taking judicial notice of its July 31, 2015 order and its order accepting the parties' stipulation that the defendant assumed physical custody of the parties' son. 1 On appeal, the plaintiff argues that the court lacked sufficient information to calculate the parties' financial situation on September 2, 2015, and relies on the procedural history and dicta in this court's decision with respect to the defendant's appeal. In that appeal, this court stated that the trial court "did not have the information necessary to make its child support orders retroactive . because the parties did not submit financial affidavits at or close to that date [of service]." LeSueur v. LeSueur , 172 Conn. App. at 782, 162 A.3d 32. This court continued quoting from Judge Tindill's July 31, 2015 memorandum of decision that the defendant had not submitted "a signed, sworn financial affidavit until ordered to do so by the court on May 22, 2015. Prior to June 8, 2015, the most recent financial affidavits filed were those filed on January 27, 2011." (Internal quotation marks omitted.) Id., at 783, 162 A.3d 32. We infer from the trial court's July 31, 2015 memorandum of decision that it had current information regarding the parties' financial circumstances as of June 8, 2015, which is approximately three months prior to September 2, 2015. The defendant argues, in part, that the court had sufficient evidence by which it could make its child support orders retroactive. Namely, that on September 10, 2015, the date the plaintiff was served with the motion for modification, the defendant was the son's custodial parent pursuant to the parties' agreement. He continued to pay child support to the plaintiff notwithstanding that he was their son's custodial parent and he had costs attributable to the son. The plaintiff contributed no financial support to the defendant for their son's care. Significantly, the court had issued orders relative to the parties' daughter on July 31, 2015, pursuant to the financial data available to the court at that time. Moreover, although the defendant had assumed custody of the son in early August, 2015, the court ordered the plaintiff to pay the defendant child support from November 1, 2016, until the son completed high school in May, 2017. The record supports the defendant's argument. The motion to modify unallocated alimony and child support was served on the plaintiff on September 10, 2015, the defendant had assumed primary physical custody of the son in August, 2015, and the son was living full-time in the defendant's home while the defendant continued to pay the plaintiff pursuant to the July 31, 2015 child support order. We conclude on the basis of the court's memorandum of decision that it had information pertaining to the parties' financial circumstances in June, 2015, which was at or near the time when the defendant served the motion for modification of unallocated alimony and child support on the plaintiff. There is no evidence in the record indicating that the plaintiff's financial circumstances had changed during the summer and fall of 2015, except that she no longer had custody of the parties' son. The record discloses, and the plaintiff admitted during the hearing on the present motions, that her full-time employment did not change and her salary was not reduced until she filed the motion for modification of unallocated alimony and child support in February, 2016. 2 The plaintiff also claims that the court improperly modified the child support order retroactive to September 2, 2015, because she continued to pay expenses of the parties' son from September 2, 2015, to the date of the hearing even though the son was not primarily living in her home. She claims that if the court granted the defendant's motion to modify retroactively, the retroactivity should only be to February 8, 2016, which is when the court accepted the parties' agreement that their son live with the defendant, and the date on which the defendant first requested that the motion be granted retroactively. In her brief on appeal, the plaintiff argues that she testified as to the expenses she incurred for the son. Although the court made no findings with respect to the expenses the plaintiff claims that she paid; see Wyatt Energy, Inc. v. Motiva Enterprises, LLC , 308 Conn. 719, 739-40, 66 A.3d 848 (2013) (recitation of testimony without more does not constitute finding); the court found that the plaintiff's expenses with respect to her children had declined. The court also found that the son was living full time with the defendant "as of the date of the instant motion." It is undisputed that the son moved to the defendant's home in August, 2015. General Statutes § 46b-224 specifically "addresses the question of how a change in custody affects the payment of child support ." Tomlinson v. Tomlinson , 305 Conn. 539, 549, 46 A.3d 112 (2012). "Child support . furnishes the custodian with the resources to maintain a household to provide for the care and welfare of the children; in essence, the custodian holds the payments for the benefits of the child. Consequently, once custody changes, there is no immediately apparent reason for the former custodian to continue to receive the payments because the presumption is that the former custodian is no longer primarily responsible for providing the children's necessary living expenses, including food, shelter and clothing . In turn, permitting the diversion of funds away from the parent providing for the care and well-being of minor children when custody changes, pursuant to the parents' contractual agreement, would contravene the purpose of child support." (Emphasis added.) Id., at 555, 46 A.3d 112. "Modification, including retroactive modification, of a child support order upon a change of custody under § 46b-224, comports with the default rule that child support follows the children, unless the trial court has made a finding that another arrangement is appropriate. This statute indicates that the legislature viewed the provision of custody as the premise underlying the receipt of child support payments; the legislature did not envision that the custodian would be required to pay child support to a person who does not have custody, as well as (in cases in which the obligor obtains custody) expend resources to provide directly for the care and welfare of the child. In fact, under the Child Support and Arrearage Guidelines . child support award is defined as the entire payment obligation of the noncusto dial parent.... Once custody is transferred, however, there is no longer any basis for the presumption that the former custodian is spending his or her share of the support on the children." (Citations omitted; emphasis in original; internal quotation marks omitted.) Coury v. Coury , 161 Conn. App. 271, 299, 128 A.3d 517 (2015). In Tomlinson , our Supreme Court stated that "if the obligor becomes the new primary custodial parent, the obligor is no longer required to pay child support to the former custodian.... The immediate result . is . the originally designated payee who no longer has custody of the child does not continue to receive support payments following the change in custody, and the payments are retained by . the party who does have custody." Tomlinson v. Tomlinson , supra, 305 Conn. at 549-50, 46 A.3d 112. In the defendant's appeal, this court stated on the basis of the plaintiff's testimony that she had rebutted the presumption that "the former custodian is no longer primarily responsible for providing the children's necessary living expenses" because she continued to have expenses associated with the care of the parties' daughter. (Internal quotation marks omitted.) LeSueur v. LeSueur , supra, 172 Conn. App. at 779, 162 A.3d 32. We have reviewed the transcript of the hearing with respect to the parties' son and agree that the plaintiff testified that she paid certain of the son's expenses. The court, however, made no finding that the expenses were necessary expenses. With regard to those expenses, her payments were voluntary and not for necessary expenses contemplated by the child support scheme. In the present appeal, the plaintiff presented no evidence, and our review disclosed none, that the defendant, who was the primary custodial parent, was not providing for their son's necessary expenses for food, shelter, and clothing. Although the plaintiff testified that she incurred expenses on behalf of the son, some of them were typical of those incurred by any noncustodial parent during visitation. The plaintiff presented no evidence that she was not able to pay for those expenses with her salary or income from investments or unallocated alimony and child support she was receiving. She also presented no evidence that she incurred expenses for the parties' son because the defendant failed to meet the son's necessary needs. The record contains evidence that many of the expenses the plaintiff incurred were the result of her voluntary decision to provide the son with the unlimited use of a credit card. The plaintiff voluntarily incurred those expenses, and they are not the necessary expenses contemplated by our case law and statutes. The court found that the parties had agreed that their son could move to the defendant's home soon after the court issued its July 31, 2015 child support orders regarding their daughter. It also found that the son had been living with the defendant since the time the motion to modify custody and child support was filed and that the defendant continued to pay the plaintiff child support pursuant to the court's July 31, 2015 orders. There is no explanation in the record as to why the motion to modify, filed in August, 2015, was not heard until February 8, 2016, which is when the court accepted the parties' agreement that the defendant would assume custody of their son. On the basis of our review of the record, the court's orders, and the briefs of the parties, we conclude that the court did not abuse its discretion by granting the defendant's motion for modification and terminating the defendant's child support obligation to pay the plaintiff retroactively, as the plaintiff failed to demonstrate that she required child support in order to provide for the son's necessary expenses. However, in her reply brief, the plaintiff noted that the court terminated the defendant's child support obligation as of September 2, 2015, which predates the time his motion to modify custody and child support was served on the plaintiff on September 10, 2015. On remand, the court is ordered to set the retroactive date to a time subsequent to September 10, 2015. II The plaintiff's second claim is that the court misconstrued the separation agreement and consequently ordered the parties to timely pay the postsecondary tuition expenses of their children. We disagree that the court misconstrued the separation agreement. During the hearing on their motions for modification, the parties asked the court to determine their respective obligations, if any, to pay the college tuitions of their children. Article 13 of the separation agreement, titled Miscellaneous Child Support Matters, is at the center of the plaintiff's claim. Paragraph 13 (B) (iv) of the separation agreement concerns the children's postsecondary education and provides as follows: "In the event that a child, upon graduating high school, attends a fully accredited college or university and matriculates in a course of study leading to an undergraduate degree, the parties shall each contribute their proportionate share to the cost thereof, in accordance with their income at that time (including any [pretax income from employment] being paid by [the defendant] to [the plaintiff] ), after the child has made application for all available financial aid, grants and scholarships. The [defendant] and [the plaintiff] shall consult with each other and with the child concerned with respect to the education of any or all of the children and with respect to the selection of schools or colleges which they shall attend. The selection of said schools and/or colleges shall be by mutual agreement. In the event that the parties are unable to agree on a school and/or their respective obligations therefore, it is understood and agreed that the Court shall retain jurisdiction pursuant to the . General Statutes to determine the amount of each [party's] required contribution, up to the cost of in state tuition at a school which is part of the Connecticut state university system and either party may submit the dispute to a court of competent jurisdiction for determination thereof. The parties' obligations pursuant to this [Article 13 (B) (iv) ] shall continue with respect to each child despite a child having attained the age of majority, but in no event beyond a child's twenty-third . birthday." During the hearing, the defendant testified that paragraph 13 (B) (iv) of the separation agreement meant that there was no limit, or so-called UConn cap, on their respective tuition contributions if the parties agreed on the respective school or college their children would attend. The plaintiff testified that she believed that the UConn cap applied if the parties could not agree on their respective financial obligations. The court found that the parties mutually agreed that their daughter would attend Princeton University and their son Dartmouth College and that neither the UConn cap nor the cost of a four year degree within the Connecticut state university system applied as contended by the plaintiff. On appeal, the plaintiff claims that the court improperly ordered the parties to pay their children's tuition at their respective colleges because the court did not find that the parties had agreed to exceed the limit imposed by General Statutes § 46b-56c(f). The plaintiff, therefore, asserts that the court erred in finding that the UConn cap and the cost of instate tuition at a school that is part of the Connecticut state university system do not apply and improperly ordered the parties to pay timely educational support to Princeton University and Dartmouth College as required by paragraphs 7 (F) and 13 (B) (iv) of the separation agreement. "It is well established that a separation agreement, incorporated by reference into a judgment of dissolution, is to be regarded and construed as a contract.... Accordingly, our review of a trial court's interpretation of a separation agreement is guided by the general principles governing the construction of contracts.... A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.... If a contract is unambiguous within its four corners, the determination of what the parties intended by their contractual commitments is a question of law.... When the language of a contract is ambiguous, [however] the determination of the parties' intent is a question of fact, and the trial court's interpretation is subject to reversal on appeal only if it is clearly erroneous." (Citations omitted; internal quotation marks omitted.) Remillard v. Remillard , 297 Conn. 345, 354-55, 999 A.2d 713 (2010). On the basis of our review of Article 13 (B) (iv) of the agreement, we conclude that the language is clear and unambiguous. The first clause of the subject article addresses the circumstances under which the parties will pay postsecondary tuition for their children. The child must have been graduated from high school, desires to attend a fully accredited college or school, and matriculated in a course of study leading to an undergraduate degree. The next clause states that each party shall pay his or her proportionate share in accordance with his or her income at the time after the child has applied for financial assistance. The next sentence addresses the manner in which the decision as to the postsecondary educational institution the child is to attend is to be made, i.e., the parties shall consult with each other and with the child concerned with respect to the education of any or all of the children and with respect to the selection of schools or colleges which they shall attend. The selection of said schools and/or colleges shall be by mutual agreement . In the present case, there is no dispute that the parties and their children mutually agreed that their daughter would attend Princeton University and their son would attend Dartmouth College. Because the parties mutually agreed , it is unnecessary to consider the next sentence of the article, which only applies when the parties are unable to agree on the educational institution and/or their respective obligations therefore . The word therefore refers back to the educational institution about which there is no agreement. Consequently, the court properly determined that the UConn cap and tuition limit on a four year degree from a Connecticut state university system did not apply under the present circumstances where the parties and their children mutually agreed that their daughter should attend Princeton University and their son should attend Dartmouth College. Moreover, we will not construe an agreement to reach a patently absurd result. The separation agreement clearly is intended to have the parties and their children mutually contemplate, investigate, and agree on the appropriate postsecondary educational institutions the children shall attend. Common sense dictates that tuition and related costs would be taken into consideration during that process. The plaintiff's construction of the agreement that after the family mutually agrees on the appropriate educational institutions for their children the parties will not pay the cost of tuition that exceeds that of the UConn cap would undermine the very purpose of the agreement. We can only imagine how family harmony would be disrupted and the disappointment, frustration, and perhaps anger, the child may feel after the family agrees to the postsecondary educational institution the child would attend but that she or he alone must bear any tuition burden that exceeds the UConn cap. We decline to sanction the plaintiff's construction of the unambiguous language of the separation agreement. We, therefore, conclude that the court properly determined that the provision of the separation agreement regarding the UConn cap and the tuition limit of a four year college degree from the Connecticut state university system do not apply because the parties and their children mutually agreed on the postsecondary institutions the children would attend, i.e., Princeton University and Dartmouth College. III The plaintiff's final claim is that the court improperly denied her motion to modify unallocated alimony and child support. We do not agree. The following facts are pertinent to this claim. On February 10, 2016, the plaintiff filed a motion for modification of unallocated alimony and support, postjudgment, asking the court to increase the amount of unallocated alimony and support she received from the defendant on the basis of his pretax income from employment. In the motion, the plaintiff quoted that portion of the agreement regarding the amount of alimony and support she was to receive from the defendant as of August 1, 2015. She also quoted paragraph 12.8 (c) of the agreement, which states in relevant part: "In no event shall the percentage formulae set forth in paragraph 12.1 (a), (b) and (c) of this Agreement or in any decree incorporating its provisions . be changed or amended by the parties or the court; except that either party shall be entitled to seek modification of the percentage formulae . in the event of a substantial change of circumstances of either party . or ordered by a [c]ourt that one or more of the children shall reside with the [defendant] as his or her primary residence. At the time that this agreement was executed the [plaintiff] had a salary . of $125,000 per year and for the preceding year her income was $75,000 per year. At the time that this agreement was executed, the [defendant] had [pretax income from employment] totaling $647,000 and for 2009 he had [pretax income from employment] for 2010 totaling $477,459." The plaintiff argued that since the dissolution judgment was rendered, her financial circumstances had changed substantially in that her salary had decreased from $125,000 per year to $95,000. She asked the court to increase the defendant's alimony obligation retroactive to the date the motion was served on the defendant. Following a hearing on the motion, the court found that the plaintiff alleged several substantial changes in circumstances since January 27, 2011, namely that her earnings from employment had decreased significantly, the defendant no longer paid child support for the parties' daughter, the amount of alimony she received from the defendant had decreased on August 1, 2015, pursuant to the dissolution agreement, and the defendant had filed a motion to terminate child support for the parties' son. In issuing its order, the court stated that it had reviewed the motions of the parties and considered their testimony and all the evidence they had submitted. In addition, the court stated that it had considered the relevant rules, case law and statutory provisions, as well as the arguments of counsel. The court found that the plaintiff has been employed by Shumway Capital, a private family foundation, for the past five years. At the time of dissolution, she was employed full-time at an annual salary of $125,000. The court found that at approximately the time she filed the motion to modify unallocated alimony and child support on February 10, 2016, the plaintiff became a part-time employee earning a salary of approximately $95,000 and that the decrease in the plaintiff's salary constituted a substantial change in circumstances. The court also found that the plaintiff's monthly expenses for shelter, transportation, the children and her liabilities had decreased since January 27, 2011. In addition, the court found that following the change of custody with respect to the parties' daughter, the defendant has paid support to the plaintiff in accordance with the agreement and the court's orders. It also found that the agreement's original percentage formulae using the defendant's pretax income from employment to calculate and determine the plaintiff's unallocated support continues to be sufficient to fulfill its intended purpose to equalize the income of the parties and support the children. The court, therefore, denied the plaintiff's motion to modify the percentage formulae of paragraph 12 of the agreement. On appeal, the plaintiff claims that the court abused its discretion by denying her motion to increase her unallocated alimony and support. She argues that because the court determined that the reduction in her salary constituted a substantial change in circumstances; see General Statutes § 46b-86 ; the court was obligated to consider all of the factors in General Statutes § 46b-82 to order alimony in accordance with the needs and financial resources of the parties, and she cites Schwarz v. Schwarz , 124 Conn. App. 472, 478, 5 A.3d 548 (once court determines a substantial change in circumstances exists, it must consider all factors in § 46b-82 to order alimony in accord with needs and financial resources of each party), cert. denied, 299 Conn. 909, 10 A.3d 525 (2010). In making this argument, the plaintiff fails to consider that the court stated that in ruling on the motion to modify unallocated alimony and child support, it had considered the relevant statutes and case law. A court need not "make explicit reference to the statutory criteria that it considered in making its decision or make express findings as to each statutory factor." Caffe v. Caffe , 240 Conn. 79, 82-83, 689 A.2d 468 (1997) ; see also Brown v. Brown , 148 Conn. App. 13, 22, 84 A.3d 905 (court expressly stated it had considered all relevant statutes before rendering judgment), cert. denied, 311 Conn. 933, 88 A.3d 549 (2014). Moreover, "[a] fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.... No single criterion is preferred over others, and the trial court has broad discretion in varying the weight placed on each criterion under the circumstances of each case." (Internal quotation marks omitted.) Brown v. Brown , supra, 148 Conn. App. at 22, 84 A.3d 905. "Once a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine an initial award of alimony . are relevant to the question of modification." (Internal quotation marks omitted.) Borkowski v. Borkowski , 228 Conn. 729, 737, 638 A.2d 1060 (1994). Paragraph 12.8 (c) of the agreement states: "In no event shall the percentage formulae set forth in paragraph 12.1 (a), (b) and (c) of this Agreement or in any decree incorporating its provisions, in whole or in part, be changed or amended by the parties or the court; except that either party shall be entitled to seek a modification of the percentage formulae set forth in paragraphs 12.1 (a), (b) and (c) in the event of a substantial change of circumstances of either party ." By the agreement's plain terms, the plaintiff was entitled to seek a modification of the formulae used to determine her unallocated alimony and child support on the basis of the defendant's pretax income from employment, but the agreement did not require that the formulae be modified on the basis of the substantial change of circumstances. In the present case, the plaintiff's employment was reduced from full-time to part-time and her salary was reduced from $125,000 to $95,000, which the court found to be a substantial change of circumstances. The court also found that there had been a significant reduction in the plaintiff's expenses for housing, transportation, and her children. Both of the children were then in the custody of the defendant and residing with him. "Appellate courts look at the record, and determine whether the [trial] court either incorrectly applied the law or could not reasonably conclude as it did." (Internal quotation marks omitted.) Caffe v. Caffe , supra, 240 Conn. at 83, 689 A.2d 468. We have reviewed the transcripts of the hearing on the parties' motions and the exhibits. The record discloses evidence that supports the court's finding that there has been a decrease in the plaintiff's expenses, most particularly with respect to housing. She had been living in an apartment paying $4700 a month in rent, but purchased a condominium that was in foreclosure and was then paying $2500.86 per month for the mortgage. She acknowledged that the interest payments on the mortgage and property taxes were tax deductible. She was able to purchase a Lexus "demo" automobile and continued to make contributions to her 401k plan. She works thirty hours a week and is partially covered by her employer's health insurance. The plaintiff presented no evidence that she has issues related to poor health or that she is unable to work. She holds a master of business administration degree. Moreover, the defendant has pointed out that the plaintiff's financial affidavit discloses that she has investments that yield significant dividends and interest. As to the plaintiff's argument that the amount of money she received from the defendant was reduced due to the fact that she no longer was receiving child support for the parties' daughter, child support follows the child. The fundamental purpose of child support is to provide for the care and well-being of minor children. Tomlinson v. Tomlinson , supra 305 Conn. at 555, 46 A.3d 112. Moreover, the agreement contemplated that the children might live with the defendant, which constituted a substantial change of circumstances, warranting a change of unallocated alimony and child support. The court stated that the unallocated support the plaintiff was receiving continued to be sufficient to fulfill its intended purpose to equalize the income of the parties and support the children. The court, therefore, denied the plaintiff's motion to modify the percentage formulae of paragraph 12 of the agreement. Both of the parties agree that the formulae used to calculate the amount of support the plaintiff is to receive from the defendant's pretax income from employment were not intended to equalize their incomes. According to the defendant, the parties agreed that the plaintiff would receive a greater amount of alimony as the defendant's income increased, but the amount of alimony as a percentage of that income would decline. The defendant notes that their incomes, even after he paid the plaintiff pursuant to the formulae, were never equal, even at the time of dissolution. He argues that "equalize" means that the parties' incomes could be balanced. The parties did not ask the court to articulate what it meant that the unallocated support provided under paragraph 12 of the agreement equalized their incomes, and we will not speculate as to its meaning. That finding, however, is not relevant to our determination of whether the court abused its discretion by denying the plaintiff's motion for modification of unallocated alimony and child support. When these highly educated and sophisticated parties signed the agreement at the time their marriage was dissolved, they had negotiated its provisions with the assistance of counsel. They bargained for a change of unallocated support if one or both of their children decided to live with the defendant, and they bargained for the percentage of support the plaintiff would receive from the defendant's pretax income from employment and that the percentages stepped down over time. There is no evidence in the record that the plaintiff has brought to our attention that the amount of unallocated alimony and support she receives is insufficient to meet her needs. See Dombrowski v. Noyes-Dombrowski , 273 Conn. 127, 132, 869 A.2d 164 (2005) (purpose of periodic alimony to provide continuing support). The court, therefore, did not abuse its discretion by denying the plaintiff's motion to modify unallocated alimony and child support. The judgment is reversed with respect to the trial court's determination regarding the plaintiff's child support obligation and the date on which the defendant's child support obligation terminated, and the case is remanded for further proceedings consistent with this opinion; the judgment is affirmed in all other respects. In this opinion the other judges concurred. The son's move to the defendant's home coincided with the judgment modifying the child support obligations of the parties with respect to the daughter's residing with the defendant. The motion to modify custody and child support was served on the plaintiff on September 10, 2015. Pursuant to the agreement, the amount of unallocated alimony and child support the defendant has to pay to the plaintiff annually is calculated as a percentage of his pretax income from employment. The term of unallocated alimony and child support is from March 11, 2011, until June 30, 2020. The percentage is calculated pursuant to an agreed upon stepdown formula that reduces the percentage of the defendant's pretax income payable to the plaintiff. The amount of the defendant's pretax income from employment on which the plaintiff's alimony is calculated is capped at $1 million annually. From August 1, 2015, until January 31, 2017, the unallocated alimony and child support the defendant was to pay the plaintiff was to be calculated on the basis of the following formula. Pretax Income Received by the Percentage to be Paid defendant from Employment to the plaintiff $0 to $316,000 40 percent $316,001 to $660,000 26.5 percent $661,000 to $1,000,000 19 percent Paragraph 13 of the separation agreement, titled "Miscellaneous Child Support Matters," provides in relevant part: "A. Based on the parties combined parental income the [defendant] shall be responsible for [50] percent of child support 'add-ons' and the [plaintiff] shall be responsible for [50] percent of the child support add-ons. [Add-ons] for purposes of this Agreement include the following: reasonable child care expenses (incurred when a party is working); mutually agreed upon education expenses other than those addressed in C below, including but not limited to tutoring; extracurricular school activities and lessons including sports and music; and summer camp." During the portion of the hearing held on May 17, 2016, counsel for the parties asked the court to consider an additional matter regarding the parties' obligation to pay for their children's postsecondary education. The court agreed to consider the matter. See part II of this opinion. The court also denied the plaintiff's motion to modify the allocation of expenses, "add-ons," and private school tuition between the parties. On appeal, the plaintiff has not claimed that the court abused its discretion in that regard. (Internal quotation marks omitted.) The parties' daughter was recruited to play field hockey at Princeton University and their son was recruited to play ice hockey at Dartmouth College. See General Statutes § 46b-56c(f). The "UConn cap" refers to the amount of tuition paid by a "full-time in-state student" to attend the University of Connecticut. The plaintiff does not claim that the court improperly accepted the parties' stipulation that their son would live with the defendant. Her claim pertains only to the court's child support orders. Paragraph 12.8 (c) of the agreement provides in relevant part: "In no event shall the percentage formulae set forth in paragraph 12.1 (a), (b) and (c) of this Agreement or in any decree incorporating its provisions, in whole or in part, be changed or amended by the parties or the court; except that either party shall be entitled to seek a modification of the percentage formulae set forth in paragraph 12.1 (a), (b) and (c) in the event of a substantial change of circumstances of either party or in the event it is agreed by the parties or ordered by a Court that one or more of the children shall reside with the [defendant] as his or her primary residence." The subject worksheet is identified as number 150 on the trial court docket list. The plaintiff's May 17, 2016 financial affidavit shows the plaintiff's gross weekly income to be $5339.56, which includes alimony and child support. The plaintiff reported $7916.66 in gross monthly salary from her employer, $4317.20 of child support, $7134.24 in monthly alimony, and $3770 in monthly dividend and interest income. General Statutes § 46b-84(a) provides in relevant part: "Upon or subsequent to the . dissolution of any marriage . the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance. Any postjudgment procedure afforded by chapter 906 shall be available to secure the present and future financial interests of a party in connection with a final order for the periodic payment of child support." The trial court "modified the defendant's child support obligation retroactive to December 9, 2014, rather than the date that the motion was served on June 30, 2014, because it found that December 9, 2014, was the date when his primary physical custody of the daughter was no longer temporary." LeSueur v. LeSueur , supra, 172 Conn. App. at 783, 162 A.3d 32. The question in Tomlinson was whether a provision in the parties' separation agreement that expressly prohibited modification of child support pursuant to the nonmodification clause of § 46b-86(a) precluded a trial court from modifying the child support portion of an unallocated support order. Our Supreme Court noted that "while § 46b-86(a) addresses the modification of child support in general, § 46b-224 covers the particular effect of a change in custody on preexisting child support orders." Tomlinson v. Tomlinson , supra, 305 Conn. at 550, 46 A.3d 112. With respect to the defendant's appeal in LeSueur v. LeSueur , supra, 172 Conn. App. 767, 162 A.3d 32, it is unclear whether the trial court made a factual finding as to whether the expenses paid by the plaintiff on behalf of the parties' daughter when she was in the defendant's custody were necessary expenses. This court concluded, however, on the basis of the plaintiff's testimony in the record that the plaintiff had incurred necessary expenses for the daughter after she had moved to the defendant's home. Id., at 778-79, 162 A.3d 32. In the present appeal, the plaintiff again testified that she incurred expenses for the parties' son after he moved into the defendant's home. The trial court made no finding that those expenses were necessary expenses. We are constrained by the factual findings of the trial court, as it is well known that appellate courts do not make findings of fact on the basis of the record. See In re Carissa K. , 55 Conn. App. 768, 778, 740 A.2d 896 (1999) (appellate courts do not examine record to determine whether trier of fact could have reached conclusion other than one reached and do not retry case). The plaintiff testified that the parties' son used the credit card when he ate at restaurants with his friends, to purchase concert tickets, and to pay for Uber rides from the airport, among other things. The son also let the parties' daughter use his credit card when she misplaced the credit card the plaintiff had provided to her. General Statutes § 46b-56c(f) is not mentioned in the separation agreement. Both in the trial court and at oral argument before us, the plaintiff, who is herself a graduate of Princeton University, had no plan for how her children's tuition would be paid if not pursuant to the separation agreement. She expected the court to fashion a remedy. The court will not fashion a remedy in the face of the unambiguous plan in the parties' separation agreement. Our review of the transcript of the hearing discloses that the court took judicial notice of prior proceedings in the file. General Statutes § 46b-86(b) provides in relevant part: "In the event that a final judgment incorporates a provision of an agreement in which the parties agree to circumstances, other than as provided in this subsection, under which alimony will be modified including suspension, reduction, or termination of alimony, the court shall enforce the provision of such agreement and enter orders in accordance therewith." General Statutes § 46b-82(a) provides in relevant part: "In determining whether alimony shall be awarded . the court shall consider the evidence presented by each party and shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs of each of the parties ."

12504865

STATE of Connecticut v. MARK T.

State v. Mark T.

2018-11-27

AC 40439

35

43

199 A.3d 35

199

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:42.438369+00:00

Fastcase

STATE of Connecticut v. MARK T.

STATE of Connecticut v. MARK T. AC 40439 Appellate Court of Connecticut. Argued September 6, 2018 Officially released November 27, 2018 Robert L. O'Brien, Hartford, assigned counsel, with whom, on the brief, was William A. Adsit, North Haven, assigned counsel, for the appellant (defendant). Rita M. Shair, senior assistant state's attorney, with whom were Michael L. Regan, state's attorney, and, on the brief, Sarah E. Steere, senior assistant state's attorney, for the appellee (state). Keller, Bright and Pellegrino, Js. In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes § 54-86e.

3862

24343

PELLEGRINO, J. The defendant, Mark T., appeals from the judgment of conviction, rendered after a jury trial, of one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). On appeal, the defendant claims that the trial court abused its discretion by excluding relevant evidence, and thereby violated his constitutional right (1) to present a defense and (2) to testify in his own defense. We disagree and, therefore, affirm the judgment of the trial court. The jury reasonably could have found the following facts. The defendant, who was thirty-five years of age, had maintained custody of his biological daughter, the victim, for hardly three weeks at the time of the incident. The victim was thirteen, in the eighth grade, and enrolled in an intensive behavioral support class for children who were prone to disruptive behavior. At home, the defendant had significant difficulty maintaining control of the victim. He therefore arranged for the victim to participate in independent after-school counseling at a local mental health facility. On the morning of September 9, 2015, the defendant arrived at the victim's school to take her to her scheduled appointment at the mental health facility. The front office secretary contacted the victim's classroom to inform Monika Wilkos, the victim's special education teacher, that the defendant had arrived in the main office to pick up the victim. As the victim was gathering her belongings in the classroom, she protested in front of Wilkos, stating that she did not want to go with the defendant. Wilkos asked the victim to accompany her to the front office, and while en route, the defendant approached the victim and Wilkos in the hallway. After a number of unsuccessful attempts to persuade the victim to come with him, the defendant attempted to pick her up and carry her. When the victim resisted, a tussle ensued, and the defendant dragged the victim by one leg through the school corridors toward the exit. School personnel called the police. By the time police arrived, the defendant had dragged the victim through the front office and into the foyer. When he saw the police, the defendant released the victim. The police interviewed the defendant and school staff, but took no further actions. The following day, both the school psychologist and the school nurse spoke to the victim regarding the incident. During the interviews, they both noticed bruising on the victim's body and subsequently reported the incident to the Department of Children and Families (department). A police officer assigned to the school district investigated the incident and, thereafter, an arrest warrant was issued for the defendant. After learning of the arrest warrant, the defendant turned himself in to the police without incident. The operative information charged the defendant with one count of risk of injury to a child in violation of § 53-21 (a) (1) and one count of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1). During multiple pretrial hearings, the defendant insisted on representing himself despite the court's many warnings about the dangers of self-representation. The defendant refused court-appointed counsel, but the court ultimately assigned the defendant standby counsel in accordance with Practice Book § 44-4. Before trial, the state filed, among other things, a motion in limine requesting that the name, address, and any other identifying information pertaining to the victim be kept confidential pursuant to General Statutes § 54-86e. The victim's guardian ad litem also argued in favor of the motion, underscoring the harmful impact that disclosure of sensitive facts could have on the victim. The defendant objected, claiming that details of his relationship with the victim were necessary to demonstrate his urgent need to get help for the victim. The court granted the motion in part and ordered that only the victim's first initial be used in the record and at trial. The court also ordered that the defendant's pretrial motions containing the name of the victim and the name of the program that the defendant was planning to take her to be placed under seal for the purposes of the record. The court further ordered that it would rule on the admissibility of other facts as they arose at trial. On September 19, 2016, following a three day jury trial, the jury found the defendant guilty of risk of injury to a child, but not guilty of breach of the peace in the second degree. On April 4, 2017, the court imposed a total effective sentence of four years imprisonment, execution suspended, with three years of probation. This appeal followed. Additional facts will be set forth as necessary. The defendant's appeal is predicated on his contention that the trial court deprived him of his constitutional right (1) to present a defense and (2) to testify in his own defense in violation of the fifth, sixth, and fourteenth amendments to the federal constitution. Specifically, the defendant argues that the court erred when it excluded evidence relevant to his theory of defense of parental justification by limiting his inquiry with respect to the victim's violent behavior toward others at school. He further claims that when he testified in his own defense, the trial court unconstitutionally limited his testimony with respect to his struggles with the victim's behavior, and her history of extreme and physical opposition. He argues that because the jury did not hear this evidence, it was unable to fully understand the urgent need to get the victim mental health treatment. The state argues that the trial court did not abuse its discretion when it limited certain aspects of the defendant's testimony. Specifically, the state argues that the trial court gave the defendant wide latitude with respect to his presentation of evidence and did not abuse its discretion when it excluded evidence that was beyond the scope of redirect examination or of a collateral nature. In other words, the state argues that the defendant's claims are not of a constitutional nature but, rather, are evidentiary. As an initial matter, we agree with the state that the defendant's claims are not of a constitutional magnitude and, instead, are evidentiary in nature. "Regardless of how the defendant has framed the issue, he cannot clothe an ordinary evidentiary issue in constitutional garb to obtain [a more favorable standard of] review." (Internal quotation marks omitted.) State v. Warren , 83 Conn. App. 446, 452, 850 A.2d 1086, cert. denied, 271 Conn. 907, 859 A.2d 567 (2004). "[R]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature.... Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender." (Internal quotation marks omitted.) State v. Rosario , 99 Conn. App. 92, 99 n.6, 912 A.2d 1064, cert. denied, 281 Conn. 925, 918 A.2d 276 (2007). Furthermore, "[t]hese . [constitutional] rights, although substantial, do not suspend the rules of evidence . A court is not required to admit all evidence presented by a defendant; nor is a court required to allow a defendant to engage in unrestricted cross-examination.... Instead, [a] defendant is . bound by the rules of evidence in presenting a defense ." (Internal quotation marks omitted.) State v. Holley , 327 Conn. 576, 594, 175 A.3d 514 (2018). Moreover, "[i]t is axiomatic that [t]he trial court's ruling on the admissibility of evidence is entitled to great deference.... In this regard, the trial court is vested with wide discretion in determining the admissibility of evidence, including issues of relevance and the scope of cross-examination.... [T]he trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... In determining whether there has been an abuse of discretion, every reasonable presumption should be made in favor of the correctness of the trial court's ruling, and we will upset that ruling only for a manifest abuse of discretion." (Internal quotation marks omitted.) State v. Ramos , 182 Conn. App. 604, 614-15, 190 A.3d 892, cert. denied, 330 Conn. 917, 193 A.3d 1213 (2018). Accordingly, we review the defendant's claims under the abuse of discretion standard. I The defendant first claims that the trial court improperly precluded testimony regarding the victim's violent disposition, which bore on whether the defendant used a reasonable amount of force when he attempted to remove the victim from school. Specifically, he argues that the court erred when it precluded questions posed to Wilkos with respect to whether the victim had been violent with others at school. The defendant argues that his questions were not beyond the scope of the redirect examination because Wilkos experienced the victim's misbehavior firsthand and, in her response to the state's redirect examination, raised the issue of physical altercations between children and school officials. We disagree. The following facts are relevant to the disposition of this claim. At trial, during the state's presentation of evidence, the victim's special education teacher, Wilkos, testified about the nature of the school's intensive behavioral education program, which she described as a "self-contained educational, therapeutic program for students with emotional disturbance and behavior difficulties." She testified that the victim had been identified through an early intervention program as a candidate for special education because of her emotional disturbances. She further testified about the incident and how the victim's behavior that day was consistent with her history of disorderly conduct. On cross-examination, however, Wilkos admitted that she was uncertain about certain details surrounding the altercation, but because she had never seen a parent dragging a child by the foot through school, her memory of the incident was still quite vivid. During redirect examination, in response to Wilkos' admission that she was unsure about the precise mechanics of the altercation, the prosecutor asked Wilkos how long she had been a teacher, and, whether in that time, she had ever seen anything like the September 9, 2015 incident. Wilkos responded that she had been a teacher for approximately thirteen years, and that in that time she had never seen anything like the incident between the victim and the defendant. She also stated that, as a result, the incident was still quite vivid in her memory. Wilkos testified: "[I]t's a vivid recollection. Some of the specifics of which arm went where in what sequence isn't, like, clear, but it's a very clear recollection ." During the subsequent recross-examination that followed, the defendant addressed Wilkos' redirect testimony by inquiring whether the victim had ever been disruptive in Wilkos' class. Wilkos answered that September 9, 2015, was not the first time the victim had been disruptive, and that every child in her class had behavioral issues. The defendant then asked whether the victim had been violent with anyone else in school. The state objected to the question, and the court sustained the objection. The defendant then attempted to ask whose idea it was to enroll the victim in the intensive care program at school. The state again objected, and the court sustained the objection, stating that it was outside the scope of the redirect examination. Here, the question of whether the trial court abused its discretion hinges on whether the victim's prior violent behavior toward others at school was within the scope of the state's redirect examination of Wilkos. With this in mind, the following legal principles are relevant to the disposition of the defendant's claim. Section 6-8 (a) of the Connecticut Code of Evidence provides: "Cross-examination and subsequent examinations shall be limited to the subject matter of the preceding examination and matters affecting the credibility of the witness, except in the discretion of the court." Additionally, our Supreme Court has stated: "[I]n . matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed.... The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court.... Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion." (Internal quotation marks omitted.) State v. Moore , 293 Conn. 781, 790, 981 A.2d 1030 (2009), cert. denied, 560 U.S. 954, 130 S.Ct. 3386, 177 L.Ed.2d 306 (2010). In the present case, the prosecutor's questions on redirect examination specifically related to Wilkos' experience as a teacher and her ability to remember the incident accurately. The state was rehabilitating Wilkos' testimony after she had admitted on cross-examination that she did not remember the precise physical sequence of the altercation-whereas the defendant's questions related to whether the victim had ever been violent with other students at school. It is important to underscore that, contrary to the defendant's argument, the trial court did allow Wilkos to testify generally about the victim's past disruptive behavior. The trial court's limiting of the defendant's line of inquiry with respect to the victim's violent behavior toward others in school, therefore, was well within its discretion to preclude examination that was beyond the scope of the redirect examination of Wilkos. Furthermore, to the extent that the victim's behavioral history may have been relevant to the defendant's subjective belief that the amount of force he used during the incident was reasonable to maintain discipline, the issue simply was not raised during the state's redirect examination. Moreover, the jury heard testimony from Wilkos during her recross-examination regarding the victim's oppositional behavior. Had the defendant wanted to explore this line of inquiry further, he could have called Wilkos as his own witness and controlled the scope of the examination. In sum, because the defendant's inquiry as to whether the victim was violent toward others did not relate to Wilkos' capacity to recall the incident at issue accurately, which was the only subject of the state's redirect examination, the trial court acted within its discretion to sustain the state's objection to the inquiry on the ground that it was outside the scope of the state's redirect examination. See State v. Holley , supra, 327 Conn. at 594, 175 A.3d 514 ("These sixth amendment rights, although substantial, do not suspend the rules of evidence . A court is not required to admit all evidence presented by a defendant; nor is a court required to allow a defendant to engage in unrestricted cross-examination." [Internal quotation marks omitted.] ); see also State v. Moore , supra, 293 Conn. at 803, 981 A.2d 1030 ("[o]nce [a] defendant has been permitted cross-examination sufficient to satisfy the sixth amendment, restrictions on the scope of cross-examination are within the sound discretion of the trial judge" [internal quotation marks omitted] ). The defendant's claim, therefore, fails. II The defendant next claims that he was prevented from testifying about the victim's extreme misbehavior at home, which he argues was relevant because it demonstrated how desperate he was to obtain mental health treatment for her. Without this context, he claims, his defense of parental justification was "effectively [hamstrung] and toothless." He also argues that the testimony directly bore on the reasonableness of his actions because it demonstrated the severity and urgency of the situation at home, and that without it, the jury had no evidence to suggest that the defendant was justified in his actions. We disagree. Whether a particular piece of evidence or testimony is admissible hinges on whether it is relevant to a material issue before the court. "As it is used in our code [of evidence], relevance encompasses two distinct concepts, namely, probative value and materiality.... Conceptually, relevance addresses whether the evidence makes the existence of a fact material to the determination of the proceeding more probable or less probable than it would be without the evidence.... In contrast, materiality turns upon what is at issue in the case, which generally will be determined by the pleadings and the applicable substantive law." (Emphasis in original; internal quotation marks omitted.) State v. Maner , 147 Conn. App. 761, 768, 83 A.3d 1182, cert. denied, 311 Conn. 935, 88 A.3d 550 (2014). Moreover, General Statutes § 53a-18 provides in relevant part: "The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances: (1) A parent, guardian or other person entrusted with the care and supervision of a minor or an incompetent person . may use reasonable physical force upon such minor or incompetent person when and to the extent that he reasonably believes such to be necessary to maintain discipline or to promote the welfare of such minor or incompetent person ." The issue of "[w]hether the force used by a parent under § 53a-18 (1) is justifiable and not criminal depends on whether it is reasonable physical force that the parent believes to be necessary to maintain discipline or to promote the welfare of [the] minor . While there exists a parental right to punish children for their own welfare, to control and restrain them and to adopt disciplinary measures in the exercise of that right, whether the limit of reasonable physical force has been reached in any particular case is a factual determination to be made by the trier of fact." (Internal quotation marks omitted.) State v. Brocuglio , 56 Conn. App. 514, 517-18, 744 A.2d 448, cert. denied, 252 Conn. 950, 748 A.2d 874 (2000). In other words, the defense of parental justification requires both subjective and objective reasonableness on behalf of the parent or guardian with respect to the use of physical force. With this legal framework in mind, we now set forth the following facts that are relevant to the disposition of the defendant's claim. During the defendant's case-in-chief, he presented evidence with respect to the incident at school, the nature of his relationship with the victim, and whether he intended to harm the victim during the incident. Specifically, the defendant testified about the victim's misbehavior at home. The court permitted the defendant's testimony that the victim ran away from home on a nightly basis and that, as a result, the police visited the defendant's home daily. The court also allowed the defendant to testify that he sought help from a number of sources, including the department, but that no one was willing to help him, and, as a result, he was concerned that the victim would end up in foster care. The defendant testified that he "urgently needed help dealing with [the victim's] behaviors . [and that he] reached out to [the department] on many occasions ." The state objected on relevancy grounds, but the court overruled the objection. The defendant then continued to testify about the nature of the appointment he scheduled for the victim, and the state again objected. The court again overruled the objection and allowed the testimony to stand. The defendant claims, however, that during his direct examination, which he conducted himself, the court abused its discretion by precluding his testimony with respect to the following exchange: "[The Defendant]: So, Mr. [T.], [where] did you go to get your daughter help? "[The Prosecutor]: Objection, Your Honor, relevancy to the case at hand. "The Court: Well, I'll allow a limited amount of this. "[The Defendant]: Okay, so this isn't really allowed.... "[The Defendant]: So, Mr. [T.], at almost the end of that month that you had your daughter, what happened that she was taken away from you again? "[The Defendant]: Well, I needed help with her, and I made an appointment to get her the help that she needed, which was- "[The Prosecutor]: Objection, Your Honor. "The Court: Sustained. "[The Defendant]: Okay. The help that she needed, which was not just some after-school program; it was much more significant. "[The Prosecutor]: Objection, Your Honor. "[The Defendant]: Okay. "The Court: I'll allow that answer to stand." The defendant claims that without this testimony identifying the name of the institution, his defense of parental justification was "toothless." We disagree with the defendant that the court's preclusion of the name of the institution rendered his theory of defense "toothless." We also disagree with the defendant that the court prevented him from testifying about the victim's misbehavior at home and the urgency of the situation. It is clear from the record that the court allowed the defendant to testify about his difficult relationship with the victim, including factors that supported his subjective belief that the victim needed urgent mental health treatment. Furthermore, it is clear from the record that the defendant was permitted to testify that ultimately he obtained a more significant type of help for the victim than just an after-school program. Rather, it was only when the defendant attempted to provide details about the help he sought for her-information that had been placed under seal during the hearing on the state's motion in limine to protect the victim-that the trial court sustained the state's objections. The trial court's preclusion of the defendant's testimony with respect to certain details about the victim and the name of the mental health institution, which were not material facts, was well within its discretionary authority. Given that the trial court had a legitimate interest in excluding sensitive details about the victim-especially those that were not material to the defendant's defense of parental justification-the court did not abuse its discretion when it sustained the state's objections. The judgment is affirmed. In this opinion the other judges concurred. On more than one occasion, the court canvassed the defendant in accord with Practice Book § 44-3 (4), ensuring that he was aware of the dangers and disadvantages of self-representation. The record also indicates that the state offered a series of plea agreements to the defendant. On May 4, 2016, the state offered an alternative disposition if the defendant would accept the lesser charge of breach of the peace, a misdemeanor. On July 29, 2016, the state offered an alternative disposition if the defendant would accept a charge of creating a public disturbance, a simple infraction. And finally, on August 4, 2016, the state presented the defendant with a nolle prosequi offer that provided that the state would not pursue any charges, so long as the defendant completed a court-approved parenting course. The defendant rejected the offers. Although the defendant also asserts a violation of our state constitution, he has provided no independent state constitutional analysis. We thus limit our review to the defendant's federal constitutional claim. See State v. Jarrett , 82 Conn. App. 489, 498 n.5, 845 A.2d 476, cert. denied, 269 Conn. 911, 852 A.2d 741 (2004).

12510619

O'BRIEN-KELLEY, LTD. v. TOWN OF GOSHEN et al.

O'brien-Kelley, Ltd. v. Town of Goshen

2019-06-04

AC 41443

641

653

210 A.3d 641

210

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

O'BRIEN-KELLEY, LTD. v. TOWN OF GOSHEN et al.

O'BRIEN-KELLEY, LTD. v. TOWN OF GOSHEN et al. AC 41443 Appellate Court of Connecticut. Argued February 11, 2019 Officially released June 4, 2019 James Stedronsky, for the appellant (plaintiff). Thomas Plotkin, with whom, on the brief, was Joseph B. Burns, Hartford, for the appellee (defendant Arthur R. Quinn III). Alvord, Sheldon and Moll, Js.

7345

45188

SHELDON, J. In this action arising from an alias tax warrant issued by the town of Goshen for delinquent municipal real estate taxes, the plaintiff, O'Brien-Kelley, Ltd., appeals from the summary judgment of the trial court rendered in favor of the defendant Arthur R. Quinn III, a state marshal, which concluded that the defendant was entitled, under General Statutes § 12-162 (c), to be paid a 15 percent statutory fee for executing the subject tax warrant. The plaintiff claims that the trial court erred in holding that the defendant was entitled to be paid the statutory fee because the defendant had not executed on the tax warrant or collected the delinquent taxes, but merely mailed notice of the tax warrant to the plaintiff, prompting the plaintiff to pay the delinquent tax and interest to the town directly before the warrant was served. We disagree, and, accordingly, affirm the judgment of the trial court. The following undisputed facts are relevant to our resolution of this appeal. The plaintiff is a Connecticut corporation having offices at 39 West Street in Litchfield. It owns a single-family lakefront house at 72 Sandy Beach Road in Goshen, which it manages, by and through its president and sole member, Edward James Murphy, Jr., for a private, extended family. In February, 2016, the tax collector for the town of Goshen determined that the plaintiff had failed to pay the January 1, 2016 installment of its 2014 property tax bill. Therefore, on February 9, 2016, the tax collector issued a delinquent notice, notifying the plaintiff that it owed the outstanding tax, plus interest calculated through February 29, 2016. The notice expressly stated that the plaintiff owed a total of $ 3302.21, consisting of $ 3206.03 in back taxes and $ 96.18 in interest. In March, 2016, the tax collector further determined that the plaintiff still had not paid its January 1, 2016 installment of its 2014 property tax bill. Consequently, on March 8, 2016, the tax collector issued to the plaintiff a notice of intent to lien, in which she indicated that the plaintiff owed $ 3206.03 in delinquent taxes, plus interest, calculated though April 30, 2016, in the amount of $ 192.36, for a total amount due of $ 3398.39. The notice of intent to lien indicated that payment in full of the delinquent tax bill was due by April 12, 2016, and that if that payment was not timely submitted, the tax collector could enforce collection of the plaintiff's delinquent account, at the expense of the plaintiff, by any of several means, including assigning the plaintiff's account to a state marshal for the service of an alias tax warrant. The plaintiff once again failed to pay its delinquent tax bill by the April 12, 2016 due date. Consequently, on April 26, 2016, the tax collector issued a "Property Alias Warrant" (alias tax warrant) to the defendant, commanding the defendant to collect the plaintiff's property taxes in the amount of $ 3476.48, consisting of $ 3206.03 in taxes, $ 240.45 in interest calculated through May 30, 2016, a $ 24 lien fee and a $ 6 warrant fee, and the defendant's "lawful charges." On May 1, 2016, the defendant mailed a letter to the plaintiff, informing it that he was in receipt of an alias tax warrant authorizing him to collect the plaintiff's delinquent real estate taxes for the town of Goshen and enclosing a copy of the warrant. The letter stated, inter alia: "This Alias Tax Warrant commands me to make demand upon you for the sum of $ 3,997.95, payable to: State Marshal Arthur Quinn, before making any attachments. THIS PROPERTY WILL BE SUBJECT TO TAX AUCTION IF DELINQUENCY REMAINS UNPAID AFTER MAY 30, 2016." The letter further warned: "If no contact is made immediately, we will proceed to attach any wages earned or any existing bank accounts to include but not limited to the seizure of any equipment, property, vehicles, or assets for auction." The letter instructed that full payment of all sums due, including the defendant's statutory fee of $ 521.47, be remitted to the defendant. On May 24, 2016, the tax collector received payment from the plaintiff in the amount of $ 3476.48. The tax collector applied that payment, in accordance with General Statutes § 12-144b, as follows: $ 453.34 for the defendant's statutory fee of 15 percent of the tax, interest, fees and costs, which totaled $ 3023.03; $ 240.45 for accrued interest; $ 24 for the lien fee; $ 6 for the warrant fee; and $ 2752.58 toward the plaintiff's outstanding delinquent tax bill. After the tax collector applied the plaintiff's payment to its account, the 2014 tax bill still had an unpaid balance in the amount of $ 453.45 due and owing, in addition to any applicable interest, fees and costs. The plaintiff thereafter submitted payment for that remaining balance. On July 26, 2016, the plaintiff mailed a letter to the defendant, demanding that he return to it the sum of $ 453.45 that the town had paid to him as his fee. The defendant did not respond to the plaintiff's demand. The plaintiff thereafter filed this action, alleging that the defendant was not entitled to a 15 percent statutory fee under § 12-162 because he never executed the alias tax warrant. The plaintiff further alleged that, because the defendant was not entitled to that fee under § 12-162, he was liable to it for conversion of that sum under General Statutes § 52-564. On September 15, 2017, the parties filed cross motions for summary judgment. The plaintiff argued that it was entitled to judgment as a matter of law on its conversion claim because the defendant collected and retained his claimed fee without executing the alias tax warrant or collecting the delinquent taxes that the plaintiff owed to the town of Goshen, as required under § 12-162. The defendant countered that "[t]here is no genuine issue as to any material fact establishing that the defendant was at all times acting in his official capacity as a Connecticut state marshal, engaged in the lawful service and execution of a valid alias tax warrant in accordance with applicable law and within the scope of his lawful duties, and thus was lawfully authorized to receive and exercise control of his lawful statutory fee." On February 27, 2018, by way of a memorandum of decision, the court denied the plaintiff's motion for summary judgment and granted the defendant's motion for summary judgment. In its decision, the court described its task as to determine the meaning of the language, "executes such warrant and collects any delinquent municipal taxes," in § 12-162 (c), and consider that language specifically in relation to General Statutes § 52-261, which pertains to fees and expenses of officers serving process or performing other duties, and § 12-144b, which sets forth the proper order of application of tax payments. The court set forth the applicable law governing our interpretation of statutory language, found that the phrase, "executes such warrant and collects any delinquent municipal taxes," under § 12-162 (c) "is susceptible to more than one reasonable interpretation," and thus concluded that the language is not plain or unambiguous. (Internal quotation marks omitted.) Having so concluded, the court "look[ed] for interpretative guidance in the statutes' legislative history, legislative policy and relationship to other statutes." The court set forth the following reasoning: "The obvious policy underlying § 12-162 (c), is that, 'if a municipality chooses to use [a state marshal] to collect delinquent taxes, the cost of that collection should be borne by the delinquent taxpayers rather than by those who duly pay their taxes.' See also New Haven v. Bonner , 272 Conn. 489, 496, 863 A.2d 680 (2005) (concluding same under General Statutes § 12-166 for utilizing a 'collection agency'). 'The tax collector can use an alias tax warrant, which authorizes a [marshal] . to collect the delinquent taxes, interest and charges. [ § 12-162 and General Statutes § 12-135 (a) ]. The warrant contains language threatening the taxpayer with the sale of his property, garnishment of his wages, or payment from assets in his bank. But its effect also depends on the [marshal's] . persistence .' [Office of Legislative Research, Connecticut General Assembly, Report No. 2001-R-0468, Towns' Authority to Contract With Private Agencies to Collect Delinquent Taxes (May 9, 2001) ].... "The court must also interpret [§] 12-162 (c) in light of § 12-144b. In 2013, our legislature made changes to § 12-144b to 'improve tax collectors' ability to collect taxes .' [Public Acts 2013, No. 13-276, § 20 (P.A. 13-276), Office of Fiscal Analysis, Connecticut General Assembly, Fiscal Note, Senate Bill No. 965, An Act Concerning Changes to Municipal Revenue Collection Statutes].... The 2013 revisions 'modif[y] the order in which tax collectors must apply property tax payments, giving priority to expenses incurred related to the tax and delinquency-related charges before the principal on the oldest outstanding tax .' [P.A. 13-276, Office of Legislative Research, Connecticut General Assembly, Bill Analysis for Senate Bill No. 965, An Act Concerning Changes to Municipal Revenue Collection Statutes].... "The legislative history of § 12-144b also includes the following: '§§ 20 [and] 43-Order of Applying Property Tax Payments. Under current law, tax collectors must apply (1) tax payments on any specific property to the oldest outstanding tax and (2) partial tax payments or installments on any assessment list containing both real and personal property to the personal property tax first, unless the person making the payment directs otherwise in writing. The bill eliminates these requirements and instead requires tax collectors to apply all tax payments first to outstanding unsecured taxes (i.e., personal property taxes) and then to outstanding secured taxes (i.e., real property taxes). The tax payments for these respective taxes apply as follows: 1. first to expenses, including attorney's fees, collection expenses, recording fees, collector's fees, and other expenses and charges related to a taxpayer's delinquency; 2. next to accrued interest; and 3. lastly, to principal, in chronological order. The bill also specifies that a municipality is not bound by any notation accompanying a tax payment that (1) purports to be payment in full, (2) proposes to waive any of the municipality's rights or powers, or (3) directs the application of the payment in any manner that contradicts applicable law.' Id. "The legislative history and purpose of § 52-261 is illustrative. In the 2003 revisions to § 52-261, '[t]he bill [Public Acts 2003, No. 03-224 (P.A. 03-224) ] increases the fee for a person who levies an execution and either collects and pays money or secures a debt from 10 [percent] to 15 [percent] of the amount of the execution. It increases the minimum fee for this execution from $ 20 to $ 30.' [P.A. 03-224, Office of Legislative Research, Connecticut General Assembly, Bill Analysis for Substitute House Bill No. 6476, An Act Concerning State Marshals].... An Office of Legislative Research report provided the following, 'ALIAS TAX WARRANTS. After making a demand for unpaid taxes, a tax collector can issue an alias tax warrant to a state marshal or constable. The alias tax warrant commands the officer to collect the tax, interest, penalty, and charges from the taxpayer. The officer can garnish the taxpayer's wages or collect funds from a bank account or the taxpayer's goods or real estate ( [ § 12-162 ] ). If the officer levies on real estate, the property is sold under the procedures for a tax sale (see below, [General Statutes] § 12-157 ). The tax collector's fee for issuing an alias tax warrant is $ 6 ( [General Statutes] § 12-140 ). An officer serving an alias tax warrant is entitled to collect the fees allowed by law for serving executions issued by a court. A state marshal or constable who executes a warrant and collects delinquent municipal taxes receives, in addition to expenses otherwise allowed, 15 [percent] of the taxes collected under the warrant or a $ 30 minimum ( § 12-162 and 52-261 ). The amount a taxpayer owes is not just the amount due on the tax but includes interest on the delinquent portion of the principal of any tax due at a rate of 18 [percent] per year from the time it is due until it is paid ( [General Statutes] § 12-146 ). This is the amount put into the alias tax warrant and the state marshal's 15 [percent] is calculated on this amount. If a state marshal performs some other functions, such as publishing advertisements or conducting title searches, he or she could also be separately reimbursed for costs.' [Office of Legislative Research, Connecticut General Assembly, Report No. 2008-R-0518, State Marshals and Selling Residential Real Estate for Delinquent Taxes (September 10, 2008) ].... "Additional legislative history to P.A. 03-224 addresses a marshal's collection of money under § 52-261. For example, Robert S. Miller, the president of the Connecticut State [Marshal's Association, Inc.], submitted the following relevant written remarks to the [House] [J]udiciary [C]ommittee in support of the 2003 amendments that 'the vast majority of executions [were] both small [and] uncollectible [and] the [marshals] expend[ed] much effort, time and money trying to collect these debts and [made] no money at all,' and that P.A. 03-224, which would increase the fees for executions to [15] percent and raise the minimum to $ 30, was 'the first raise in [thirteen] years and [would] bring the fees in line with the minimum that collection agencies charge[d].' [Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 2003 Sess., p. 1964]. In addition, Representative Michael P. Lawlor explained in his remarks before the House of Representatives that 'a [s]tate [m]arshal . is collecting money on behalf of a creditor' under § 52-261. [46 H.R. Proc., Pt. 17, 2003 Sess., p. 5443, remarks of Representative Lawlor on P.A. 03-224]. "Pursuant to [General Statutes] § 1-2z, the court agrees with the state marshal defendant that § 12-162 (c), 12-144b and 52-261 may be construed more broadly than the plaintiff contends, given some purposes underlying these statutes are to make it easier for municipalities to collect delinquent taxes and to have the cost of delinquent tax collection be borne by the delinquent taxpayers rather than by those who duly pay their taxes. The court must next consider the related case law. "The plaintiff cites to Danbury v. Sullivan , Superior Court, judicial district of Danbury, Docket No. CV-303581-S (December 4, 1991) (Fuller, J. ) (5 Conn. L. Rptr. 325, 1991 WL 269107), as being directly on point. In that case, the defendant, a deputy sheriff, filed a counterclaim seeking to collect fees related to the collection of delinquent taxes. Id. The city filed a motion to strike, including the second count, which attempted 'to collect sheriff's fees on amounts paid directly by the taxpayer [to the city] for overdue taxes.' Id. In granting the motion to strike the second count, the court found that '[i]t is apparent from the terms of the statute that any deputy sheriff who serves an alias tax warrant is required to collect the fees for serving the execution from the taxpayer, not the municipality. To recover the additional fees under the statute the sheriff must execute the warrant and collect delinquent taxes. Merely serving the alias tax warrant on the taxpayer is not enough.' . Id., at 326. The plaintiff also makes the point that this is not a case of the town hiring a collection agency instead of a marshal. See New Haven v. Bonner , supra, 272 Conn. at 496, 863 A.2d 680 (finding 'the obvious policy underlying [ § 12-166 ] is that, if a municipality chooses to employ a collection agency to collect delinquent taxes, the cost of that collection should be borne by the delinquent taxpayers rather than those who duly pay their taxes'). The . defendant contends that Sullivan is not persuasive authority because [t]he trial court's interpretation is that there is a requirement of the physical collection of the delinquent tax payment by the marshal, and ignores the reality that, absent the marshal's efforts, no tax payment would have been 'collected' at all. Indeed, the tax was in fact 'collected.' Further, the [court in] Sullivan completely ignores the mandates of the tax warrant itself, commanding the delinquent taxpayer to make payment of the delinquent tax to the marshal.... The court agrees with the defendant that Sullivan has limited persuasive authority given the policy underlying the statutory framework for the collection of municipal delinquent taxes and the development of the law since 1991. "The . defendant argues that he had either actually or constructively seized moneys owed to the town because he performed his official duty and enforced the alias tax warrant. He cites Corsair Special Situations Fund, L.P. , v. Engineered Framing Systems, Inc. , Docket No. 3:11-CV-01980 (JCH), 2016 WL 128089 (D. Conn. January 11, 2016), where the District Court determined whether the state marshal was entitled to recover his 15 percent fee and construed § 52-261 (a) (2) (F) along with the Appellate Court's decision of Nemeth v. Gun Rack, Ltd. , 38 Conn. App. 44, 52, 659 A.2d 722 (1995). After reviewing the statutory language, the District Court found that '[w]hen [the state marshal] properly served [the third party] with the [w]rit, he imposed upon [that third party] a legal obligation to pay him the money it owed the judgment debtor, rather than paying the judgment debtor directly. While [the state marshal] did not actually seize the money that [the third party] owed the judgment debtor, he did constructively seize it by putting [that third party] on notice of its legal obligation to deliver the money it owed the judgment debtor to [the state marshal]. And, given that levy has been defined as an actual or constructive seizure, [the state marshal's] constructive seizure of the debt owed by [the third party] to the judgment debtor constitutes a levy.' Corsair Special Situations Fund, L.P. v. Engineered Framing Systems, Inc. , supra, 2016 WL 128089, *4. "The case of Masayda v. Pedroncelli , Superior Court, judicial district of Waterbury, Docket No. CV-94-0120878-S (July 20, 1998) (West, J. ) (22 Conn. L. Rptr. 449, 1998 WL 420779), also provides support for the state marshal defendant's argument. There, judgment was entered by the court for the plaintiffs, and reasonable attorney's fees and costs were awarded. Id. To collect on the judgment, the plaintiffs encumbered [the] defendants' real property with judgment liens. Id. When the debt remained unsatisfied, the plaintiffs applied for and obtained a bank execution. Id. The deputy sheriff served the execution and the defendants objected. Id., at 449-50. Subsequently, the defendants' counsel forwarded to [the] plaintiffs' counsel the sum of $ 18,014.31, which came from a source other than [the] defendants' executed upon bank accounts. Id., at 450. The plaintiffs sought payment of the deputy sheriff's fee for levying execution on [the] defendants' bank accounts, in an amount which they claim[ed] [was] $ 1800 pursuant to the controlling [statute], § 52-261, and argued that the judgment in this case remained unsatisfied in an amount equal to that fee. Id. The defendants denied owing any fee for the levying of the bank execution. Id. 'In the alternative, however, they argue[d] that [if] the sheriff [is] entitled to a fee, that fee would be the statutory minimum of $ 20 and no more.' Id. The defendants argued that 'for the deputy sheriff to be entitled to anything other than the $ 20 minimum fee under [§] 52-261, money would have had to have been actually collected or paid over from the accounts against which the execution was levied.' Id. In construing § 52-261, the court found that '[c]ontrary to [the] defendants' reading,' § 52-261 'does not require that the money be collected and paid over from the account levied upon.' Id. The court did not agree with the defendants' reading of § 52-261 to add an additional requirement that the source of payment be considered. Id. 'Certainly, after levying the execution, payment by the debtor directly to the creditor should not deprive the sheriff of his fee.' Id. The court interpreted the statute as indicating the intention of the legislature to entitle a sheriff to his fee when he has performed his duty, although payment is made from another source. Id. 'In accord with the foregoing, the court [found] that the sheriff ha[d] satisfied the requirements of [General Statutes] § 52-261 . [he] levied an execution and the money [was] collected and paid over to the plaintiffs and, as a result, he [was] entitled to his fee of $ 1800 as provided by said statutes.' Id. "This court must determine whether the state marshal defendant executed the alias tax warrant and collected any delinquent municipal taxes pursuant to § 12-162 (c), either actually or constructively. In Benjamin v. Hathaway , 3 Conn. 528, 532 (1821), the Supreme Court, in considering the mode of levy, noted that '[t]he law cannot define precisely, in every case, how these acts shall be done. It prescribes general rules; and these have been complied with.' A broad interpretation of 'levy' is also consistent with Nemeth v. Gun Rack, Ltd. , supra, 38 Conn. App. at 51, 659 A.2d 722, where the court found that '[l ]evy ,' which is not a defined term in the [Uniform Commercial Code, General Statutes § 42a-1-101 et seq. ], should be read broadly as including not only levies of execution proper but also attachment, garnishment, trustee process, receivership, or whatever proceeding, under the state's practice, is used to apply a debtor's property to payment of his debts.' "In the present case, the . defendant performed his duty and enforced the alias tax warrant when he mailed the plaintiff notice of the alias tax warrant and demanded payment.... The town's notice of intent to lien, issued on March 8, 2016, already placed the plaintiff on notice that if this type of collection enforcement action was warranted, the plaintiff was responsible for paying all of the costs of collection that are incurred in these efforts, in addition to the taxes, interest and charges due.... "Pursuant to the alias tax warrant, the . defendant was 'hereby commanded to collect forthwith' the delinquent taxes.... Rather than proceed immediately against the plaintiff by levy on the real estate, goods or chattel owned by the taxpayer, garnish the taxpayer's wages, or to seize the taxpayer's funds on deposit in a bank, the . defendant took the less drastic step of sending a demand letter to the plaintiff. The letter made demand for the payment of $ 3997.95, which constituted the tax owed, $ 3476.48, interest and fees, plus an additional 15 percent of said amount ($ 521.47) as part of the marshal fees. After receiving the demand letter, the plaintiff made payment to the town in the amount of $ 3476.48. From that amount, the town paid the marshal's fees, including the 15 percent fee in accordance with § 12-144b. The . defendant should not be denied his 15 percent fee because he took the less drastic step of first sending the plaintiff a demand letter rather than proceeding directly to attachment of the plaintiff's property, wages and/or bank account. The state marshal defendant was clearly engaged in a lawful collection enforcement effort authorized by the alias tax warrant. "By analogy to Corsair Special Situations Fund, L.P. v. Engineered Framing Systems, Inc. , supra, 2016 WL 128089, when the . defendant sent a demand letter to the plaintiff, he placed the plaintiff on notice of its legal obligation to pay the delinquent taxes and the state marshal defendant's legal duty to collect the delinquent taxes, and, therefore, constructively executed the alias tax warrant pursuant to § 12-162 (c). The plaintiff did not pay the delinquent taxes after the notice of intent to lien, but only after the demand letter was sent. As a result of the state marshal defendant's actions, the plaintiff made efforts to address its tax delinquency. The . defendant's efforts in collecting the delinquent taxes were successful without having to resort to further levy and execution on the plaintiff's property. The . defendant earned his statutory fee based on his performance of his statutory duties. "Similar to Masayda v. Pedroncelli , supra, 22 Conn. L. Rptr. 449, the state marshal defendant is entitled to his fee even though the plaintiff made payment directly to the town. 'In [ Masayda ], the sheriff levied an execution, and the money was actually collected and paid over, albeit not from the accounts levied upon. Contrary to [the] defendants' reading, however, the statute does not require that the money be collected and paid over from the account levied upon. Section 52-261 of the General Statutes is clear on its face. The defendants' reading adds a nonexistent, additional requirement that the source of payment be considered. Certainly, after levying the execution, payment by the debtor directly to the creditor should not deprive the sheriff of his fee.' Id., at 450. "Pursuant to Benjamin v. Hathaway , supra, 3 Conn. at 532, the . defendant constructively made levy of the alias tax warrant based upon the totality of the circumstances. The court finds that the . defendant satisfied the requirements of § 12-162 (c) and, as a result, he was entitled to collect his 15 percent fee. This finding is also consistent with [the] legislative purpose of the statutory framework for the collection of delinquent municipal taxes. The . defendant's efforts made it easier for the town to collect the delinquent taxes, which were months overdue. The . defendant's demand letter was effective in satisfying the tax delinquency, and there was no need for further collection efforts; these facts were not reasons to deny the defendant his fee under § 52-261. In addition, the plaintiff should bear the costs of the . defendant's efforts rather than town residents who pay their taxes on time." (Citations omitted; emphasis in original.) On the basis of the foregoing analysis, the court denied the plaintiff's motion for summary judgment and granted the defendant's motion for summary judgment. This appeal followed. The plaintiff claims on appeal that the trial court erred in determining that the defendant was entitled to the statutory 15 percent fee pursuant to § 12-162 (c) because the defendant neither executed the alias tax warrant nor collected the delinquent taxes owed to the town of Goshen. We disagree. "Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital , 272 Conn. 551, 559, 864 A.2d 1 (2005). Likewise, issues of statutory construction present questions of law, our review of which also is plenary. See Hicks v. State , 297 Conn. 798, 800-801, 1 A.3d 39 (2010) (setting forth process of ascertaining legislative intent pursuant to § 1-2z, and noting that, "[w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature" [internal quotation marks omitted] ). The trial court carefully examined the record before it and concluded that the defendant was entitled to the 15 percent statutory fee provided by § 12-162. We agree with the trial court's thoughtful and comprehensive memorandum of decision, in which it thoroughly reviewed the applicable statutory language, its legislative history, and relevant case holdings. Because that memorandum of decision fully states and meets the arguments raised in the present appeal, we adopt the trial court's well reasoned legal analysis, as set forth herein, as a statement of the applicable law on these issues. We are persuaded by the trial court's application of the holding in Corsair to this case, particularly in light of the proceedings that occurred in Corsair subsequent to the District Court's initial ruling regarding the statutory fee, upon which the trial court in this case relied in concluding that the defendant was entitled to the 15 percent statutory fee. As noted, the trial court in this case relied on the decision issued by the United States District Court for the District of Connecticut in concluding that the marshal had constructively seized the delinquent taxes that the plaintiff paid to the town of Goshen. Following the District Court's order, Corsair appealed to the United States Court of Appeals for the Second Circuit, which determined that § 52-261 is ambiguous, and thus certified two questions to our Supreme Court. Corsair Special Situations Fund , L.P. v. Pesiri , 863 F.3d 176, 179-82 (2d Cir. 2017). Our Supreme Court accepted the certification of the following questions: "(1) Was [the state marshal] . entitled to a [15] percent fee under the terms of [ § 52-261 (a) (F) ]? "(2) In answering the first question, does it matter that the writ was ignored and that the monies that were the subject of the writ were procured only after the judgment creditor, not the marshal, pursued further enforcement proceedings in the courts?" Id., at 183. In addressing the certified questions, our Supreme Court agreed with the Second Circuit's conclusion that the language of § 52-261 is ambiguous. Corsair Special Situations Fund, L.P. v. Engineered Framing Systems, Inc. , 327 Conn. 467, 472-73, 174 A.3d 791 (2018). In construing the phrase "levy of an execution," the court reasoned, inter alia: "As our Appellate Court previously has recognized; see Nemeth v. Gun Rack, Ltd. , [supra, 38 Conn. App. at 52-53, 659 A.2d 722 ] . it is generally accepted that a levy of an execution may be satisfied by a constructive seizure of the property that is the subject of the execution. See 30 Am. Jur. 2d 202, Executions and Enforcement of Judgments § 192 (2005) ('A levy on personal property is generally defined as a seizure of the property. Thus, in most jurisdictions, it is essential to the completion of a levy of execution upon personal property that there be a seizure, either actual or constructive, of the property.' . Ballentine's Law Dictionary (3d Ed. 1969) p. 728 ('At common law a levy on goods consisted of an officer's entering the premises where they were and either leaving an assistant in charge of them or removing them after taking an inventory. Today courts differ as to what is a valid levy, but by the weight of authority there must be an actual or constructive seizure of the goods.'). "What constitutes a constructive seizure under our law depends on the circumstances, i.e., the nature of what is to be seized and from whom it is to be seized. See General Statutes § 52-356a (a) (setting forth procedures for execution against nonexempt personal property and levying officer's responsibilities). Those circumstances dictate the levying officer's authority, set forth in the writ of execution. When levying an execution on debt owed that is in the possession of a third party, constructive seizure is effectuated when the writ of execution is properly served on, and the demand of payment made to, the third party, provided that the debt has or will mature within the statutory term." (Footnote in original.) Corsair Special Situations Fund, L.P. v. Engineered Framing Systems, Inc. , supra, 327 Conn. at 473-74, 174 A.3d 791. The court then turned to the issue of the collection of the debt, reasoning: "The right to the commission fee accrues only after either of two conditions is satisfied: 'when the money is actually collected and paid over, or the debt or a portion of the debt is secured by the officer .' General Statutes § 52-261 (a) (F). We therefore turn to the question of whether the phrase 'by the officer' modifies the former, as well as the latter, condition. "Construing the phrase 'by the officer' to apply only to the latter condition is supported by rules of grammar, the genealogy of the statute, and simple common sense. Under the last antecedent rule, '[r]eferential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. The last antecedent is the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence.' . 2A N. Singer & J. Singer, Sutherland Statutory Construction (7th Ed. 2007) § 47:33, pp. 487-89; see, e.g., Foley v. State Elections Enforcement Commission , 297 Conn. 764, 786, 2 A.3d 823 (2010) (applying rule); LaProvidenza v. State Employees' Retirement Commission , 178 Conn. 23, 27, 420 A.2d 905 (1979) (same). There is not clear evidence of a contrary intention in the statutory text, as 'collected' may refer to the debtor/third party from whom the money is being collected or the person collecting the money. Moreover, had the legislature intended for 'by the officer' to apply to the first condition as well, it could have expressed such an intention more clearly by inserting a comma between the second condition and that phrase (when the money is actually collected and paid over, or the debt or a portion of the debt is secured, by the officer). Application of the last antecedent rule also is confirmed by a review of predecessors of § 52-261. For more than a century, the statute provided for the fee 'when the money is actually collected and paid over, or the debt secured by the officer to the acceptance of the creditor .' " (Emphasis in original.) Corsair Special Situations Fund, L.P. v. Engineered Framing Systems, Inc. , supra, 327 Conn. at 475-76, 174 A.3d 791, quoting General Statutes (1902 Rev.) § 4850; accord General Statutes (Rev. to 2001) § 52-261 (a) (6). "It is clear that the italicized phrase would not have applied to the first condition. That phrase necessarily reflected that the officer exercises some discretion in the means or manner by which the debt is secured. The officer exercises no similar discretion when money is collected from the third party or debtor; the officer merely accepts the money that is provided.... Accordingly, if the phrase 'to the acceptance of the creditor' did not modify the first condition, then the preceding phrase 'by the officer' similarly would not modify that condition. Although the legislature recently excised the phrase 'to the acceptance of the creditor' from the statute; [P.A. 03-224], § 10; it gave no indication that this change was intended to expand application of the phrase 'by the officer' to the collection of money or that it understood the previous statute to have such a meaning. See 46 H.R. Proc., [supra], p. 5443, remarks of [Representative Lawlor] (explaining that proposed changes 'will make it easier for the marshals to carry out their responsibilities and for the [State Marshal] Commission to conduct the oversight that is called for under the reforms of a number of years ago'). "Finally, common sense dictates that we should not construe the statute to limit the fee to only those circumstances in which the marshal has personally collected the money and paid it over to the creditor, as Corsair suggests. See Christopher R. v. Commissioner of Mental Retardation , 277 Conn. 594, 608-609, 893 A.2d 431 (2006) ('[i]n construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended' .). Corsair's construction of the statute also would deprive a levying officer of the statutory commission if the third party violated the order in the writ by paying the levied upon funds directly to the creditor instead of the officer, whether mistakenly or intentionally. See, e.g., Fair Cadillac Oldsmobile Corp. v. Allard , 41 Conn. App. 659, 660, 677 A.2d 462 (1996) (after sheriff levied bank execution, bank paid funds directly to creditor, instead of to sheriff, at direction of creditor) . see also Masayda v. Pedroncelli , [supra, 22 Conn. L. Rptr. 449, 450 ] (after deputy sheriff served bank execution, judgment debtor paid judgment creditor from source other than bank account). Under Corsair's interpretation of the statutory scheme, the officer would not be entitled to the fee, even though the creditor received the benefit of the officer's service because the third party's obligation to the judgment creditor arose only as a result of the proper service of the writ of execution. Corsair's construction would create an incentive for judgment creditors to circumvent the statutory commission, a process that could inure to the benefit of both creditor and debtor by an agreement to reduce the debt by an amount less than the 15 percent fee in exchange for direct payment.... Our courts previously have applied common sense constructions to the facts of a given case involving the levy of an execution when a possible reading of the statute would have yielded a result that the legislature reasonably could not have intended. See Preston v. Bacon , 4 Conn. 471, 479-80 (1823) (sheriff entitled to fee when sheriff had substantially performed, and agreement by creditor and debtor's attorney prevented sheriff from completing final action statute required to be entitled to fee) . Nemeth v. Gun Rack, Ltd. , supra, 38 Conn. App. at 54-55, 659 A.2d 722 (applying expansive interpretation of time limitation for applying for turnover order when facts made it impossible for judgment creditor to commence and complete levy on goods within period prescribed, and creditor had done everything that could reasonably be required under statute)." Corsair Special Situations Fund, L.P. v. Engineered Framing Systems, Inc. , supra, 327 Conn. at 476-79, 174 A.3d 791. On the basis of the foregoing, our Supreme Court answered the first certified question, "[y]es," the marshal was entitled to the statutory fee. The court answered the second certified question, "[n]o," it did not matter that the writ was ignored by the judgment creditor and the funds were obtained through separate enforcement proceedings. Id., at 481, 174 A.3d 791. Upon receipt of our Supreme Court's response to the two certified questions, the Second Circuit determined that the marshal was entitled to the full 15 percent statutory fee and affirmed the District Court's decision to award that amount. Corsair Special Situations Fund, L.P. v. Pesiri , 887 F.3d 589, 591 (2d Cir. 2018). The holding in Corsair supports the trial court's conclusion that, by sending the demand letter and a copy of the warrant, to the plaintiff, the defendant placed the plaintiff on notice of its legal obligation to pay the delinquent taxes and his responsibility to collect them, and thereby constructively executed the tax warrant, and thus that the defendant was entitled to his statutory fee under § 12-162. We therefore conclude that the trial court properly granted the defendant's motion for summary judgment. The judgment is affirmed. In this opinion the other judges concurred. The town of Goshen and its tax collector, Rebecca M. Juchert-Derungs, were defendants in this action until the plaintiff withdrew its complaint against them on May 4, 2017. As Quinn is the only remaining defendant herein, any reference to the defendant herein is only to him. The notice of intent to lien stated, in part: "According to our records, your REAL ESTATE taxes are past due. In accordance with CT General State Statute 12-155, payment is hereby demanded for the taxes due on this statement. The Tax [Collector's] Office reserves the right to enforce collection of the taxes listed herein by use of any of the following methods, which include but are not limited to: "Assign your unpaid account to a Connecticut State Marshal for service of an Alias Tax Warrant and enforced collection. State law provides those servicing tax warrants with the ability to levy upon, seize and sell any real estate, goods and chattels owed by you; to garnish your wages; and to seize funds on deposit in any banking institution. "Please note that if this type of collection enforcement action is warranted, you will also be responsible for paying all of the costs of collection that are incurred in these efforts, in addition to the taxes, interest and charges due. "In order to avoid those actions, your account must be PAID IN FULL BY TUESDAY, APRIL 12, 2016 or you must begin to make regular monthly payments. Please call my office to set up a payment agreement. In compliance with State Statute 12-173, a lien will be placed on your 2014 Grand List property taxes on April 14, 2016 if not paid in full at that time. "Per § 12-144b, I must apply any payment made on this property to the oldest outstanding tax levied with the interest thereon." The plaintiff also alleged that the defendant violated its rights under the Connecticut constitution. The trial court rejected that claim, and the plaintiff has not challenged that ruling on appeal. General Statutes § 12-162 (c) provides: "Any officer serving an alias tax warrant pursuant to this section shall make return to the collector of such officer's actions thereon within ten days of the completion of such service and shall be entitled to collect from such person the fees allowed by law for serving executions issued by any court. Any state marshal or constable, authorized as provided in this section, who executes such warrant and collects any delinquent municipal taxes or water or sanitation charges as a result thereof shall receive, in addition to expenses otherwise allowed, a percentage of the taxes or the water or sanitation charges collected pursuant to such warrant, calculated at the rate applicable for the levy of an execution as provided in section 52-261. The minimum fee for such service shall be thirty dollars. Any officer unable to serve such warrant shall, within sixty days after the date of issuance, return such warrant to the collector and in writing state the reason it was not served." (Emphasis added.) General Statutes § 52-261 provides in relevant part: "(a) Except as provided in subsection (b) of this section and section 52-261a, each officer or person who serves process, summons or attachments on behalf of: (1) An official of . any municipal official acting in his or her official capacity . shall be allowed and paid . (F ) for the levy of an execution, when the money is actually collected and paid over, or the debt or a portion of the debt is secured by the officer, fifteen per cent on the amount of the execution, provided the minimum fee for such execution shall be thirty dollars ." (Emphasis added.) General Statutes § 52-356a (a) provides in relevant part: "(2) The property execution shall require a proper levying officer to enforce the money judgment and shall state the names and last-known addresses of the judgment creditor and judgment debtor, the court in which and the date on which the money judgment was rendered, the original amount of the money judgment and the amount due thereon, and any information which the judgment creditor considers necessary or appropriate to identify the judgment debtor. The property execution shall notify any person served therewith that the judgment debtor's nonexempt personal property is subject to levy, seizure and sale by the levying officer pursuant to the execution . "(3) A property execution shall be returned to court within four months after issuance.... "(4) The levying officer shall personally serve a copy of the execution on the judgment debtor and make demand for payment by the judgment debtor of all sums due under the money judgment. On failure of the judgment debtor to make immediate payment, the levying officer shall levy on nonexempt personal property of the judgment debtor, other than debts due from a banking institution or earnings, sufficient to satisfy the judgment, as follows: "(A) If such nonexempt personal property is in the possession of the judgment debtor, the levying officer shall take such property into his possession as is accessible without breach of the peace; "(B) With respect to a judgment debtor who is not a natural person, if such personal property, including any debt owed, is in the possession of a third person, the levying officer shall serve that person with a copy of the execution and that person shall forthwith deliver the property or pay the amount of the debt due or payable to the levying officer, provided, if the debt is not yet payable, payment shall be made when the debt matures if within four months after issuance of the execution . "(5) Levy under this section on property held by, or a debt due from, a third person shall bar an action for such property against the third person provided the third person acted in compliance with the execution...."

12510611

ROCKSTONE CAPITAL, LLC v. John SANZO et al.

Rockstone Capital, LLC v. Sanzo

2019-07-16

SC 20041

554

565

210 A.3d 554

210

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

Robinson, C.J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

ROCKSTONE CAPITAL, LLC v. John SANZO et al.

ROCKSTONE CAPITAL, LLC v. John SANZO et al. SC 20041 Supreme Court of Connecticut. Argued January 15, 2019 Officially released July 16, 2019 Matthew K. Beatman, Bridgeport, with whom, on the brief, was John L. Cesaroni, Bridgeport, for the appellants (named defendant et al.). Houston Putnam Lowry, Meriden, with whom, on the brief, was Dale M. Clayton, Hartford, for the appellee (plaintiff). David Lavery and Loraine Martinez filed a brief for the Connecticut Fair Housing Center as amicus curiae. Robinson, C.J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

5356

33558

D'AURIA, J. If a creditor forecloses on a debtor's home, the debtor might be entitled to keep a portion of the home's value, whatever the amount of the debt. This debtor protection, known as the homestead exemption, is available when the creditor forecloses on a judgment lien, but not on a consensual lien. See General Statutes § 52-352b (t). In this case, the plaintiff, Rockstone Capital, LLC (Rockstone), held judgment liens against the defendants John Sanzo and Maria Sanzo. The parties later agreed to a consensual lien in the form of a mortgage to secure the debt. Now, the Sanzos have defaulted on the mortgage payments, and Rockstone seeks to foreclose on the mortgage. The primary issue on appeal is whether the Sanzos are entitled to the homestead exemption. We conclude they are not. The trial court found the following facts, as stipulated by the parties and contained in exhibits submitted to the court. The Sanzos' primary residence is in Monroe and most recently was valued at $500,000. In 2000, Fleet National Bank (Fleet) secured a judgment against them for about $100,000. To secure the debt, it recorded judgment liens on the Monroe property. Fleet later assigned its interests in the judgment and judgment liens to Rockstone. In 2008, Rockstone initiated this action to foreclose on the judgment liens because the Sanzos had defaulted. The parties, however, entered into a forbearance agreement that halted the action. Under the agreement, the Sanzos were to make regular payments on the amount outstanding on the judgment liens and additional interest, costs, and fees, and to grant Rockstone a mortgage on the Monroe property securing these obligations. In exchange, Rockstone agreed to refrain from pursuing this foreclosure action for as long as the Sanzos made their payments. The parties stipulated that they were represented by counsel and that their agreement was a commercial agreement. The record also reflects the following procedural history. In 2014, Rockstone resumed this action, filing a motion to foreclose on the judgment liens because the Sanzos had defaulted on their obligations under the forbearance agreement. The Sanzos objected to the motion and invoked the homestead exemption. In response, Rockstone amended its complaint to seek foreclosure on the mortgage, instead of on the judgment liens. The Sanzos filed an answer, including a special defense that claimed the mortgage was a de facto waiver of the homestead exemption, which was contrary to public policy. The action was submitted to the trial court on stipulations and exhibits submitted by the parties. Following an initial decision that the parties agreed was improper, the court issued a corrected memorandum of decision. In it, the court acknowledged that the Sanzos had "voluntarily enabled [Rockstone] to seek recovery without the homestead exemption's applicability" and that "the homestead exemption would ordinarily not be applicable to a mortgage created by a voluntary agreement such as the one at hand." But based on the "unique procedural history" of the case, in which "the progression of this action has been to get around the homestead exemption," the court decided that the exemption should apply nonetheless. It held that the forbearance agreement was void as against public policy and therefore denied Rockstone's claim to foreclose on the mortgage. It also rendered judgment for Rockstone on the judgment liens, subject to the homestead exemption, even though Rockstone had amended its complaint to withdraw its claim regarding the judgment liens. The court did not determine the amount of debt, manner of foreclosure or law days for the judgment lien foreclosure. Rockstone appealed and the Sanzos cross appealed to the Appellate Court. Rockstone appealed from the denial of its request to foreclose on the mortgage, and the Sanzos cross appealed from the judgment on the judgment liens. Because the trial court had not determined the amount of debt, manner of foreclosure or law days for the judgment lien foreclosure, the Appellate Court ordered a hearing to determine whether it should dismiss the appeals for lack of a final judgment. Following that hearing, the Appellate Court ordered the trial court to articulate its ruling and, after receiving the articulation, ordered the parties to address the final judgment question in their merits briefs to that court. The Appellate Court concluded that it had jurisdiction over Rockstone's appeal because the trial court's denial of Rockstone's claim to foreclose on the mortgage constituted a final judgment. Rockstone Capital, LLC v. Sanzo , 175 Conn. App. 770, 778, 171 A.3d 77 (2017). It reversed the judgment of the trial court on the merits of Rockstone's appeal, holding that the homestead exemption did not apply to a consensual lien such as a mortgage. Id., at 784, 171 A.3d 77. The Appellate Court also concluded that it had jurisdiction over the Sanzos' cross appeal because, although it was not based on a final judgment, it was inextricably intertwined with Rockstone's appeal, which was based on a final judgment. Id., at 786, 171 A.3d 77. Finally, it reversed the judgment of the trial court on the merits of the cross appeal because Rockstone's operative complaint had not sought foreclosure on the judgment liens. Id., at 788-89, 171 A.3d 77. The Sanzos petitioned this court for certification to appeal, which we granted, limited to the following issues: "1. Did the Appellate Court properly conclude that the appeal and cross appeal were taken from a final judgment of the trial court? 2. If the answer to the first question is yes, did the Appellate Court properly conclude that the plaintiff's postjudgment mortgage encumbering the same property and the same debt as the plaintiff's judgment liens was a consensual lien, and not a de facto waiver of the homestead exemption; see General Statutes § 52-352b (t) ; that would be void as a matter of public policy?" Rockstone Capital, LLC v. Sanzo , 327 Conn. 968, 173 A.3d 391 (2017). We affirm the judgment of the Appellate Court with respect to its conclusions that the appeal was taken from a final judgment and that the mortgage was a consensual lien. We conclude that certification was improvidently granted with respect to whether the cross appeal was taken from a final judgment and dismiss that portion of the appeal. I As threshold issues, we must address whether the Appellate Court had jurisdiction over the appeal and cross appeal. "The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . subject matter jurisdiction is a question of law [and, therefore] our review [as to whether the Appellate Court had jurisdiction] is plenary." (Internal quotation marks omitted.) Ledyard v. WMS Gaming, Inc. , 330 Conn. 75, 84, 191 A.3d 983 (2018). Subject to certain exceptions, an appellate court's subject matter jurisdiction "is limited to final judgments of the trial court." (Internal quotation marks omitted.) Id. A final judgment exists "[w]hen judgment has been rendered on an entire complaint ." Practice Book § 61-2. In this case, Rockstone's operative complaint exclusively sought foreclosure of the mortgage, and the trial court denied the relief requested. We conclude that this constitutes a final judgment and, thus, that the Appellate Court had jurisdiction over the appeal. Once the trial court denied Rockstone's request to foreclose on the mortgage, it then sua sponte ruled in favor of Rockstone on the judgment liens, but did not set the amount of debt, manner of foreclosure or law days. Therefore, the Sanzos argue, the trial court did not render a final judgment. See Morici v. Jarvie , 137 Conn. 97, 103, 75 A.2d 47 (1950) ("[a final] judgment [in a foreclosure action] must either find the issues for the defendant or [find the issues for the plaintiff and] determine the amount of the debt, direct a foreclosure and fix the law days"). We disagree. This argument ignores the undisputed predicate fact that Rockstone did not seek foreclosure on the judgment liens in its operative complaint. As stated previously, the complaint sets the parameters for determining a final judgment. See Practice Book § 61-2. Particularly "under the unusual circumstances of this case"; Rockstone Capital, LLC v. Sanzo , supra, 175 Conn. App. at 786, 171 A.3d 77 ; in which the parties agree that there was no basis to rule on the judgment liens; id., at 788, 171 A.3d 77 ; the trial court's ruling on the judgment liens, which fundamentally exceeded the scope of the complaint, does not defeat the final judgment it rendered on the mortgage. After examining the entire record on appeal and considering the briefs and oral arguments of the parties, we also conclude that certification was improvidently granted on the question of whether the Appellate Court had jurisdiction over the Sanzos' cross appeal from the trial court's ruling on the judgment liens. The parties agree that the ruling on the judgment liens was improper. Id. Moreover, the trial court stated in its articulation: "Once the court voided the forbearance agreement and underlying mortgage, the remaining matter to be resolved involved judgment on the original judgment liens.... It was the court's intention to preserve the [Sanzos'] right to the homestead exemption while preserving [Rockstone's] right to sue on the original judgment liens." (Citations omitted.) In other words, if the trial court had concluded, as we do, that the mortgage was enforceable, it never would have reached the judgment liens. Therefore, the appeal is dismissed as to that issue. II The primary issue in this case is whether the mortgage that the Sanzos granted to Rockstone is enforceable. The Sanzos argue it is not because it deprives them of the homestead exemption, which is contrary to both the text of § 52-352b (t) and public policy. We disagree. Under the plain language of the statute, a homestead exemption is not available to a mortgagor. Nor, on the facts of this case, is the granting of a mortgage a violation of public policy. Therefore, we conclude that the mortgage is enforceable. "We exercise plenary review over questions of statutory interpretation, guided by well established principles regarding legislative intent. See, e.g., Kasica v. Columbia , 309 Conn. 85, 93, 70 A.3d 1 (2013) (explaining plain meaning rule under General Statutes § 1-2z and setting forth process for ascertaining legislative intent)." State v. Daniel B. , 331 Conn. 1, 12-13, 201 A.3d 989 (2019). Exemptions are construed liberally in the debtor's favor. See In re Caraglior , 251 B.R. 778, 782-83 (Bankr. D. Conn. 2000). Under our statutes governing postjudgment collection, a creditor may enforce a money judgment "against any property of the judgment debtor unless the property is exempt ." General Statutes § 52-350f. It may do so via "foreclosure of a real property lien ." General Statutes § 52-350f. " 'Exempt' " means "unless otherwise specified, not subject to any form of process or court order for the purpose of debt collection ." General Statutes § 52-352a (c). Under the homestead exemption, a judgment debtor's "homestead" is exempt "to the value of seventy-five thousand dollars ." General Statutes § 52-352b (t). A " '[h]omestead' " is "owner-occupied real property . used as a primary residence." General Statutes § 52-352a (e). "Value" is "determined as the fair market value of the real property less the amount of any statutory or consensual lien which encumbers it ." General Statutes § 52-352b (t). "[T]hese statutory provisions . mean that a judgment lien can attach on a homestead, but that such a lien cannot be enforced up to the amount of the exemption." KLC, Inc. v. Trayner , 426 F.3d 172, 175 (2d Cir. 2005). Plainly, though, the homestead exemption does not apply to a consensual lien. See General Statutes § 52-352b (t) ("fair market value of the real property less the amount of any . consensual lien which encumbers it"). A mortgage is a consensual lien. E.g., In re Wolmer , 494 B.R. 783, 784 (Bankr. D. Conn. 2013) ("consensual liens [here, the mortgages]"); L. Suzio Asphalt Co. v. Ferreira Construction Corp. , Superior Court, judicial district of New Haven, Docket No. 351912 (October 19, 1993) (10 Conn. L. Rptr. 264, 265), 1993 WL 448441 ("consensual liens, such as . a mortgage"); see also 4 Collier on Bankruptcy (R. Levin & H. Sommer eds., 16th Ed. 2019) ¶ 506.03 [1] [a], p. 506-11 ("[c]ommon examples of voluntary [or consensual] liens include real property mortgage liens"). In this case, Rockstone does not seek to foreclose on the nonconsensual judgment liens initially filed against the Sanzos. Rather, it seeks to foreclose on the consensual mortgage later voluntarily granted to it by the Sanzos. Therefore, we agree with the Appellate Court that the homestead exemption does not apply. Although the Sanzos concede the general point that the homestead exemption does not apply to mortgages, they make two arguments as to why the particular mortgage they granted to Rockstone should not be enforced. We find neither argument persuasive. First, the Sanzos argue that their mortgage-a mortgage securing preexisting judgment debt-is not the type of mortgage contemplated by § 52-352b (t). This argument is not supported by a plain reading of the statute's text. The statute does not define "consensual lien," but could hardly refer to the concept more broadly: "any . consensual lien" is subtracted from the property's value in calculating the homestead exemption. (Emphasis added.) General Statutes § 52-352b (t). We disagree with the Sanzos that § 52-350f, which limits a judgment creditor's collection efforts to nonexempt assets, is inconsistent with this reading of the homestead exemption. Nothing in § 52-350f prohibits parties from restructuring a judgment debt into another form, such as a consensual lien, to which the exemption would not apply. In fact, the Sanzos appear to concede that they could have properly restructured their judgment debt if they had only done so through third-party financing, rather than directly through their creditor, Rockstone. Thus, we find no textual basis for holding that a mortgage securing judgment debt is excluded from the meaning of "consensual lien." Second, the Sanzos argue that a debtor may not waive the homestead exemption and that, on the facts of this case, the mortgage agreement they entered into with Rockstone, their judgment creditor, should properly be viewed as a de facto waiver of the exemption. We are not persuaded by either point. "Waiver is the intentional relinquishment or abandonment of a known right or privilege." (Internal quotation marks omitted.) Dinan v. Patten , 317 Conn. 185, 195, 116 A.3d 275 (2015). A statutory right generally may be waived. Id. However, "a statutory right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy." (Internal quotation marks omitted.) Pereira v. State Board of Education , 304 Conn. 1, 49-50, 37 A.3d 625 (2012). Although there is considerable variation among the states as to the contours of and legal purposes underlying homestead exemptions; see, e.g., Chames v. DeMayo , 972 So. 2d 850, 856-57 (Fla. 2007) ; homestead exemptions are typically driven by interrelated policies that consider the welfare of both individual private citizens and the public at large. "The principal objective of the homestead laws is generally regarded as the security of the family, which in turn benefits the community to the extent that such security prevents pauperism and provides the members of the family with some measure of stability and independence." G. Haskins, " Homestead Exemptions," 63 Harv. L. Rev. 1289, 1289 (1950). More specifically, these laws seek to achieve security for debtors and their families by protecting their ability to remain in their homes, providing a financial cushion for those who would otherwise be unable to support themselves, or both. See R. Rivera, " State Homestead Exemptions and Their Effect on Federal Bankruptcy Laws," 39 Real Prop. Prob. & Tr. J. 71, 101-102 (2004) (noting homestead exemptions that are intended "to protect debtors' homes in bankruptcy because when debtors retain their homes, they are more likely to spend money in the local economy, which is in the state's best interest," and homestead exemptions that are intended to provide monetary relief "to prevent a debtor from becoming completely dependent on the state for financial support"). In addressing whether an individual may waive a homestead exemption, a court usually considers the form of the waiver. Waivers via mortgage are routinely permitted. See 1 The Law of Debtors and Creditors (2019) § 6:70 ("perhaps the most common form of waiver involves the homestead exemption, which may typically be waived by the debtor granting a creditor a mortgage"); 40 C.J.S., Homesteads § 102 (2019) ("[a]s a general rule, homestead rights may be waived by the parties entitled thereto by an act which evidences an unequivocal intention to do so" [footnote omitted] ). Some courts permit a waiver via mortgage because granting a mortgage on specific property allows the mortgagor to consider the specific consequences of default. For example, the Sanzos repeatedly cite a Florida Supreme Court decision barring a prospective waiver of the homestead exemption in an executory contract. See Chames v. DeMayo , supra, 972 So. 2d at 857 (citing constitutional provisions, statutes and case law prohibiting "a general waiver of homestead or personal property exemptions in an executory contract"). But they omit from their discussion that court's express acknowledgment that a waiver via mortgage is enforceable: "[Our cases] do not prohibit a waiver of the homestead exemption; they simply require that such waivers be accomplished . by mortgage, sale, or gift . Those who truly wish to waive their homestead exemption . can do so." (Citations omitted.) Id., at 861-62. A waiver via mortgage is permitted because it "is made knowingly, intelligently, and voluntarily . with eyes wide open ." (Citation omitted.) Id., at 861. "In obtaining a mortgage, a homeowner is well aware that if the payments are not made, the home may be foreclosed upon.... [T]he very nature of the transaction implies the exercise of discretion and the contemplation of inevitable consequences." (Internal quotation marks omitted.) Id. ; cf. Beneficial Finance Co. of Colorado v. Schmuhl , 713 P.2d 1294, 1297 (Colo. 1986) ("Our holding [that a judgment debtor may waive an exemption by granting a security interest] is supported by the expectations of the parties in secured transactions. A debtor who grants a security interest in specific property to a creditor expects foreclosure of that interest upon default."); Lingle State Bank of Lingle v. Podolak , 740 P.2d 392, 396 (Wyo. 1987) ("[t]he debtor cannot waive the privilege of claiming the exemption in advance " [emphasis added; internal quotation marks omitted] ). Other courts permit a debtor to waive an exemption on the theory that prohibiting such a waiver would go too far in restricting an individual's right to encumber property. For instance, the New York Court of Appeals has held that a debtor's exemptions are not meant to serve the "paternalistic function" of prohibiting a debtor from disposing of exempt property, or "the less drastic step" of encumbering it in exchange for consideration. Matter of New York v. Avco Financial Service of New York, Inc. , 50 N.Y.2d 383, 388, 406 N.E.2d 1075, 429 N.Y.S.2d 181 (1980). It recognized that "the law has not forbidden a debtor to execute a mortgage upon the property so protected and thus create a lien which may be foreclosed despite the property's exempt status ." (Citations omitted.) Id. ; see also, e.g., United Bank of Bismarck v. Selland , 425 N.W.2d 921, 925 (N.D. 1988) ("although the exemption statutes are designed to protect debtors from becoming destitute as a consequence of unforeseeable indebtedness, the statutes should not be construed to deprive an individual of his rights of ownership in exempt property . among which is the power to encumber, to sell, or otherwise dispose of it" [internal quotation marks omitted] ); cf. Moyer v. International State Bank , 404 N.W.2d 274, 277 (Minn. 1987) ("[t]he statute does not forbid a debtor to mortgage protected property and to create a lien against identified property which can be foreclosed despite the property's exempt status"). Practical considerations support the reasoning in these cases. "[A] determination that a statutory exemption cannot be waived by a security agreement would severely restrict the availability of [much needed] credit to debtors who, in many cases, have few assets to use as collateral." Beneficial Finance Co. of Colorado v. Schmuhl , supra, 713 P.2d at 1297 ; see also Hernandez v. S.I.C. Finance Co. , 79 N.M. 673, 675, 448 P.2d 474 (1968) ("[o]ften, such property is the poor man's only source of cash in an emergency and, if the law permits him to sell his exempt property, surely it permits the less drastic step of encumbering it"). This concept applies particularly to homestead exemptions because a homestead is often a debtor's best potential source of credit. "A debtor's equity in residential real property subject to a homestead exemption is often substantial. Thus, permitting the debtor to encumber the homestead through execution of a second mortgage or similar instrument is economically justified." J. Haines, " Security Interests in Exempt Personalty: Toward Safeguarding Basic Exempt Necessities," 57 Notre Dame Law. 215, 220 n.35 (1981) ; see W. Vukowich, "Debtors' Exemption Rights," 62 Geo. L.J. 779, 852 (1974) ("[p]ermitting waivers of exemptions and security interests in the more substantial exempt assets . is sound, since it permits persons to use the more substantial assets as collateral; in fact, these are the types of assets which represent the best collateral and which are most commonly used as such"); see also Benchmark Bank v. Crowder , 919 S.W.2d 657, 661 (Tex. 1996) ("[h]omestead owners must have the ability to renew, rearrange, and readjust the encumbering obligation to prevent a loss of the homestead through foreclosure"). In some scenarios, therefore, waiver of the homestead exemption actually serves the public policies underlying it by allowing a debtor to remain in his home and providing him with a source of funds to support himself. In support of their argument that a debtor may not waive the homestead exemption, the Sanzos ignore the form of their waiver: a mortgage. Although the Sanzos' mortgage in this case involved an executory contract (the forbearance agreement), and therefore presents a scenario not addressed by the cases previously discussed, we are persuaded that the same principles still apply. We are not convinced that a waiver of the homestead exemption always contravenes the public policy behind it, such that it may never be waived. The Sanzos find little support for their argument in Connecticut law. They rely primarily on TuxisOhr's Fuel, Inc. v. Trio Marketers, Inc. , Superior Court, judicial district of New Haven, Docket No. CV-04-4002067-S (October 26, 2005) (40 Conn. L. Rptr. 203), 2005 WL 3047266, and Haggerty v. Williams , 84 Conn. App. 675, 855 A.2d 264 (2004), as examples of statutory rights that an individual may not waive in every circumstance. Tuxis-Ohr's Fuel, Inc. , concerned a provision in a personal guarantee contract that waived the homestead exemption. Tuxis-Ohr's Fuel, Inc. v. Trio Marketers, Inc. , supra, at 204. Haggerty involved a provision in a mortgage that waived the relevant statute of limitations. Haggerty v. Williams , supra, at 676-77, 855 A.2d 264. In each case, the court was concerned that allowing a debtor to waive a statutory protection "at the inception" of an agreement; id., at 681, 855 A.2d 264 ; would mean a waiver was the result of "ignorance, improvidence, an unequal bargaining position or was simply unintended." (Internal quotation marks omitted.) Id., at 682, 855 A.2d 264. These courts also feared that the public policy advanced by the granting of these statutory rights would erode by encouraging similar waivers " 'as a matter of routine.' " Id., at 681, 855 A.2d 264 ; accord Tuxis-Ohr's Fuel, Inc. v. Trio Marketers, Inc. , supra, at 205. The present case does not involve a scenario, as in Tuxis-Ohr's Fuel, Inc. , and Haggerty , in which a debtor waived statutory protection "at the inception' " of an agreement; Haggerty v. Williams , supra, 84 Conn. App. at 681, 855 A.2d 264 ; without a realistic chance to consider the consequences. When the Sanzos decided to grant a mortgage, they had already defaulted on the judgment debt and were actually (not just theoretically) facing foreclosure. They had the aid of counsel. They entered into a negotiated commercial agreement. They are not relying on a provision buried within the mortgage but, rather, on the mortgage itself. It was "obvious," they concede, that the purpose of this mortgage was to contract around the homestead exemption. Nor, unlike Tuxis-Ohr's Fuel, Inc ., and Haggerty , is this a situation in which mortgages would be granted, and thus public policy would be undercut, merely " 'as a matter of routine.' " Haggerty v. Williams , supra, 84 Conn. App. at 681, 855 A.2d 264. Before entering into the agreement, the Sanzos could choose between invoking the homestead exemption in the face of the foreclosure action and granting a mortgage. For the reasons just stated, they appear to have made this choice deliberately. It is not self-evident that judgment debtors in similar situations would routinely make the same choice to mortgage their homes, particularly if they had few other exempt assets and a homestead exemption represented their best financial outcome. Moreover, as described previously, restructuring judgment debt might often work in a debtor's favor. Indeed, in 2009, the Sanzos received forbearance from foreclosure in exchange for the mortgage. Until 2014, they apparently complied with the terms of the forbearance agreement and remained in their home because of it. Finally, the Sanzos and the amicus curiae, the Connecticut Fair Housing Center, urge us to look beyond the form of the mortgage to its substance, which they argue was merely a de facto general waiver. They contend that the mortgage did not secure any debt beyond the original judgment liens. They also note that it was not a novation or release of the judgment liens. Therefore, they argue, the only real effect of the mortgage was to waive the homestead exemption in the same manner as one would through a general contractual waiver. We disagree for two reasons. First, Rockstone's interest secured by the mortgage was not identical to the interest secured by the judgment liens. The mortgage secured the judgment lien debt, as well as additional fees and costs stemming from the forbearance. The mortgage also had the effect of subordinating Rockstone's security interest, as two superior liens had been filed and recorded after Rockstone's judgment liens, but before the mortgage. Second, although the forbearance agreement could have more clearly distinguished between the old debt (secured by the judgment liens) and the new (secured by the mortgage) by, for instance, granting a novation, the Sanzos were well informed about the consequences of default, and the purpose of the mortgage was clear. The judgment of the Appellate Court is affirmed insofar as that court determined that Rockstone's appeal was taken from a final judgment and that the mortgage was a consensual lien to which the homestead exemption does not apply, and insofar as that court reversed the trial court's judgment with respect to the denial of Rockstone's claim to foreclose on the mortgage and remanded the case for further proceedings; that portion of the appeal concerning whether the Appellate Court correctly concluded that the Sanzos' cross appeal was taken from a final judgment of the trial court is dismissed. In this opinion the other justices concurred. Connecticut's homestead exemption is embodied in General Statutes § 52-352b, which provides in relevant part: "The following property of any natural person shall be exempt . (t) The homestead of the exemptioner to the value of seventy-five thousand dollars . provided value shall be determined as the fair market value of the real property less the amount of any statutory or consensual lien which encumbers it ." The Housatonic Lumber Company also was named as a defendant but was defaulted for failure to plead and is not involved in this appeal. In its original memorandum of decision, the trial court relied on an express waiver of the homestead exemption contained within the mortgage itself. It concluded that the express waiver was void as against public policy, but that it was severable from the rest of the mortgage. It therefore granted foreclosure of the mortgage, subject to the homestead exemption. Neither party had relied on the express waiver, however, because they agreed that it was unnecessary. In its motion to reargue, Rockstone stated that it "was not relying upon the express waiver language contained in the [m]ortgage since the [m]ortgage, being a consensual lien, is not within the purview of the homestead exemption statute and thus no waiver argument is necessary." In their own motion to reargue, the Sanzos agreed that "the [c]ourt ruled in a manner not addressed by either party ." Conceding that the express waiver in the mortgage was "actually an extraneous term," they reiterated their argument that "the [m]ortgage itself is a de facto waiver of the [h]omestead [e]xemption under the unique facts of this case." The parties do not rely on the express waiver on appeal. See Rockstone Capital, LLC v. Sanzo , 175 Conn. App. 770, 782, 171 A.3d 77 (2017). General Statutes § 52-350f provides: "A money judgment may be enforced against any property of the judgment debtor unless the property is exempt from application to the satisfaction of the judgment under section 52-352a, 52-352b, 52-352d or 52-361a or any other provision of the general statutes or federal law. The money judgment may be enforced, by execution or by foreclosure of a real property lien, to the amount of the money judgment with (1) all statutory costs and fees as provided by the general statutes, (2) interest as provided by chapter 673 on the money judgment and on the costs incurred in obtaining the judgment, and (3) any attorney's fees allowed pursuant to section 52-400c." Legislative history is also, at best, unhelpful to the Sanzos, as debate did not distinguish between prejudgment and postjudgment mortgages. The homestead exemption for residential real property was enacted in No. 93-301, § 2, of the 1993 Public Acts. During debate in the House of Representatives, Representative Lee A. Samowitz did emphasize, however, that the homestead exemption was not intended to impair mortgages: "I want to clarify this. [The homestead exemption] does not affect mortgages. Mortgages are secured. They are not impaired. They won't be impaired to bankruptcy, they won't be impaired to foreclosure." 36 H.R. Proc., Pt. 30, 1993 Sess., p. 10,852; see also id., p. 10,826 ("consensual liens are not impaired by this amendment"); id., p. 10,832 ("[t]his is intended not to impair the statutory and the [consensual] lien"). Several legislatures also have considered the form of the waiver. E.g., Alaska Stat. § 09.38.105 (2006) ("[a] waiver of exemption executed in favor of an unsecured creditor before levy on an individual's property is unenforceable, but a valid security interest may be given in exempt property"); Tenn. Code Ann. § 26-2-301 (c) (2017) ("[t]he homestead exemption shall not operate against . any debt secured by the homestead when the exemption has been waived by written contract"); W. Va. Code Ann. § 38-9-6 (a) (LexisNexis 2011) ("[a]ny waiver of the rights conferred by this article shall be void and unenforceable except to the extent that [1] such waiver is accompanied by a consensual security interest in the property in which the homestead exemption is asserted"). Connecticut's homestead exemption statute is silent on whether, or under what circumstances, a homeowner may waive the exemption. See General Statutes § 52-352b (t) ; see also 36 H.R. Proc., Pt. 30, 1993 Sess., p. 10,853, remarks of Representative Lee A. Samowitz ("[t]he proposed bill does not deal with the statutory right of waiver"). We do not consider the other arguments advanced by the amicus because they were not raised by the parties. See Dow & Condon, Inc. v. Brookfield Development Corp. , 266 Conn. 572, 595, 833 A.2d 908 (2003).

12489240

Anthony G. VARCHETTA v. COMMISSIONER OF CORRECTION

Varchetta v. Comm'r of Corr.

2017-02-17

No. 38408

831

831

155 A.3d 831

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Anthony G. VARCHETTA v. COMMISSIONER OF CORRECTION

Anthony G. VARCHETTA v. COMMISSIONER OF CORRECTION No. 38408 Appellate Court of Connecticut. Submitted on briefs February 17, 2017 Officially released March 14, 2017

30

203

Per Curiam. The appeal is dismissed.

12489238

WACHOVIA BANK, FSB v. Pawel TOCZEK et al.

Wachovia Bank, FSB v. Toczek

2017-01-24

No. 37733

830

830

155 A.3d 830

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

WACHOVIA BANK, FSB v. Pawel TOCZEK et al.

WACHOVIA BANK, FSB v. Pawel TOCZEK et al. No. 37733 Appellate Court of Connecticut. Argued January 4, 2017 Officially released January 24, 2017

42

247

Per Curiam. The judgment is affirmed and the case is remanded for the purpose of setting new law days.

12510592

George W. NORTHRUP et al. v. Henry J. WITKOWSKI, Jr., et al.

Northrup v. Witkowski

2019-07-02

SC 20023

29

56

210 A.3d 29

210

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

Robinson, C.J., and Palmer, McDonald, D'Auria, Kahn and Ecker, Js.

George W. NORTHRUP et al. v. Henry J. WITKOWSKI, Jr., et al.

George W. NORTHRUP et al. v. Henry J. WITKOWSKI, Jr., et al. SC 20023 Supreme Court of Connecticut. Argued October 16, 2018 Officially released July 2, 2019 Joshua F. Gilman, Norwalk, for the appellants (plaintiffs). Thomas R. Gerarde, with whom, on the brief, was Beatrice S. Jordan, Hartford, for the appellees (defendants). Aaron S. Bayer Hartford, and Tadhg Dooley, New Haven, filed a brief for the city of Bridgeport et al. as amici curiae. Robinson, C.J., and Palmer, McDonald, D'Auria, Kahn and Ecker, Js.

15327

96765

ROBINSON, C.J. This certified appeal requires us to consider the continued vitality of this court's decision in Spitzer v. Waterbury , 113 Conn. 84, 88, 154 A. 157 (1931), which held that "[t]he work of constructing drains and sewers, as well as that of keeping them in repair, is ministerial, and the municipality is responsible for negligence in its performance." The plaintiffs, Helen M. Northrup, George W. Northrup, and Timothy Northrup, brought this action against the defendants, the borough of Naugatuck (town) and several town officials, claiming, inter alia, that the defendants' negligence in maintaining and repairing the town's storm drains and drainage pipes had caused the repeated flooding of the plaintiffs' residence. The plaintiffs now appeal, upon our granting of their petition for certification, from the judgment of the Appellate Court affirming the trial court's granting of the defendant's motion for summary judgment on the ground that the negligence claims were barred because, under more recent cases refining and clarifying Spitzer , the maintenance of storm drains and drainage systems is a discretionary function subject to governmental immunity, rather than a ministerial function, the negligent performance of which can subject a municipality to liability. Northrup v. Witkowski , 175 Conn. App. 223, 250, 167 A.3d 443 (2017). We disagree with the plaintiffs' claim that the Appellate Court improperly failed to follow Spitzer because we conclude that decision must be overruled in light of modern case law governing the distinction between ministerial and discretionary duties. Accordingly, we affirm the judgment of the Appellate Court. The opinion of the Appellate Court aptly sets forth the following facts and procedural history. "The plaintiffs reside on property located in the town at 61 Nettleton Avenue. On eight different occasions between 2009 and 2012, the plaintiff's property was damaged when surface rainwater and/or 'black water' inundated the property because the single catch basins in the area routinely became clogged or inadequately redirected water away from the property. "After the first occurrence in July, 2009, Helen . contacted [James] Stewart, who, at that time, was the [town] engineer. He told her that the flooding was the result of a rare storm and that it would not happen again. Despite his assurance, however, flooding occurred again in October and December of that year. The plaintiffs continued to contact Stewart, to no avail. The plaintiffs made several requests to the town for sandbags; one such request was granted, but others were denied or simply ignored. "The town received a report in October, 2009, from an engineering firm about the Nettleton Avenue neighborhood. The report indicated that, over the past forty years, many residences in the neighborhood had experienced periodic flooding of their properties following periods of heavy rainfall. It further indicated that the drainage system in the area was likely to experience flooding after rainfalls of two inches or more, which could occur several times a year. The report attributed the flooding to the fact that runoff was required to flow through relatively narrow drainpipes that were in poor to fair condition and that the majority of catch basins in the area were old and had small openings that often became overgrown with vegetation or obstructed by trash. The report recommended that the town construct new, larger storm drains to handle the storm runoff in the area, but the town failed to adopt that proposal. The plaintiffs' property flooded again in July of 2010, March and August of 2011, and June and September of 2012." (Footnote in original.) Id., at 226-27, 167 A.3d 443. On June 4, 2013, the plaintiffs filed the operative second amended complaint alleging negligence against Henry J. Witkowski, Stewart, and the town, and recklessness against the individual defendants. See footnote 2 of this opinion. In addition, the plaintiffs alleged negligent infliction of emotional distress against Witkowski, Stewart, and the town. "On October 30, 2015, the defendants filed [a] motion for summary judgment . The defendants submitted a supporting memorandum of law, attached to which were partial transcripts from the depositions of Helen . and the individual defendants, as well as an affidavit by Stewart. The defendants argued that the negligence counts, including those alleging negligent infliction of emotional distress, were barred by governmental immunity because they involved acts or omissions that required the exercise of judgment or discretion, and no other recognized exception to governmental immunity applied. The defendants further argued that the recklessness counts brought against the individual defendants also failed as a matter of law because, on the basis of the allegations and evidence presented, no reasonable fact finder could determine that the individual defendants had engaged in demonstrably reckless conduct. "The plaintiffs filed an objection to the motion for summary judgment on November 18, 2015, arguing with respect to the negligence counts that there remained genuine issues of material fact as to whether the defendants were exercising ministerial or discretionary duties and, if discretionary, whether the identifiable person-imminent harm exception to governmental immunity applied." Northrup v. Witkowski , supra, 175 Conn. App. at 228-29, 167 A.3d 443. "On January 20, 2016, the court issued a memorandum of decision granting summary judgment in favor of the defendants on all counts. With respect to the negligence counts, including those counts alleging negligent infliction of emotional distress, the court concluded that the plaintiffs' specifications of negligence amounted to a 'litany of discretionary omissions' and that their 'allegations boiled down to a claim that the defendants failed to perform their municipal duties in an appropriate manner.' The court determined that the city ordinance on which the plaintiffs relied in opposing summary judgment only set forth the general duties of the [streets commission] without any specific directions or mandates as to how those duties should be discharged." Id., at 230, 167 A.3d 443. The trial court acknowledged this court's decision in Spitzer v. Waterbury , supra, 113 Conn. at 88, 154 A. 157, holding that the repair and maintenance of drainage systems is a ministerial function, but concluded that more recent cases had "refined [the] analysis of the relationship and differences between ministerial and discretionary acts ." Silberstein v. 54 Hillcrest Park Associates, LLC , 135 Conn. App. 262, 272, 41 A.3d 1147 (2012). The trial court concluded that, under those more recent cases, the repair and maintenance of drainage systems are discretionary unless an ordinance "prescribe[s] the manner in which the drainage systems are to be maintained ." (Emphasis in original.) "Accordingly, the court concluded that the defendants' acts or omissions in maintaining the town's drainage system were discretionary in nature. Furthermore, the court concluded that the identifiable person-imminent harm exception to discretionary act immunity was inapplicable as a matter of law because the risk of the property flooding at any given time was indefinite and, thus, did not constitute an imminent harm. The court also granted summary judgment with respect to the recklessness counts, concluding that they also were barred by governmental immunity. "The plaintiffs filed a motion to reargue and for reconsideration, which the defendants opposed. The court denied the plaintiffs' motion, and [the plaintiffs' appeal to the Appellate Court] followed." Northrup v. Witkowski , supra, 175 Conn. App. at 230, 167 A.3d 443. The Appellate Court held that "to demonstrate the existence of a ministerial duty on the part of a municipality and its agents, a plaintiff ordinarily must point to some statute, city charter provision, ordinance, regulation, rule, policy, or other directive that, by its clear language, compels a municipal employee to act in a prescribed manner, without the exercise of judgment or discretion. See Violano v. Fernandez , 280 Conn. 310, 323, 907 A.2d 1188 (2006) ; Evon v. Andrews , 211 Conn. 501, 506-507, 559 A.2d 1131 (1989) ; DiMiceli v. Cheshire , [162 Conn. App. 216, 224-25, 131 A.3d 771 (2016) ]; Grignano v. Milford , 106 Conn. App. 648, 659-60, 943 A.2d 507 (2008)." Northrup v. Witkowski , supra, 175 Conn. App. at 235, 167 A.3d 443. The court ultimately concluded that, "although there is language in § 16-32 of the [Naugatuck Code of Ordinances] that requires the streets commission to maintain and repair the town's storm water sewer system, the ordinance contains no provisions that mandate the time or manner in which those responsibilities are to be executed, leaving such details to the discretion and judgment of the municipal employees." Id., at 238, 167 A.3d 443. The Appellate Court then acknowledged this court's statement in Spitzer v. Waterbury , supra, 113 Conn. at 88, 154 A. 157, that the repair and maintenance of drains and sewers are ministerial functions, but it concluded that Spitzer was distinguishable on its facts because it involved only the question of whether a drainage system "as it was planned could handle even ordinary amounts of rain," not whether the city had properly maintained and cleaned the system. Northrup v. Witkowski , supra, 175 Conn. App. at 239, 167 A.3d 443. In addition, the Appellate Court concluded that the statement in Spitzer was dictum. Id., at 241, 167 A.3d 443. The Appellate Court concluded that, "[c]onsidered in light of our modern case law analyzing qualified governmental immunity, we are convinced that the [trial] court correctly determined that there was no genuine issue of material fact to be resolved with respect to whether the alleged[ly] negligent acts or omissions of the defendants were discretionary in nature and, thus, subject to immunity." Id., at 242, 167 A.3d 443. Accordingly, the Appellate Court affirmed the judgment of the trial court. Id., at 250, 167 A.3d 443. This certified appeal followed. See footnote 3 of this opinion. On appeal to this court, the plaintiffs contend that the Appellate Court incorrectly determined both that Spitzer is distinguishable on its facts and that this court's statement in Spitzer that the repair and maintenance of drains and sewers are ministerial functions was dictum. Rather, they argue that Spitzer is directly on point and is binding authority for the proposition that the duty of a municipality to maintain and repair its drainage system is ministerial and, therefore, that the negligent performance of that duty will subject the municipality to liability. We conclude that we need not determine whether the language in Spitzer was dictum because, even if it was not, Spitzer must be overruled in light of more modern case law and statutes governing the distinction between ministerial and discretionary duties. We further conclude that the Appellate Court correctly determined that, under those more modern cases, the town's duty to maintain and repair its drainage system was discretionary and, therefore, subject to governmental immunity. As a preliminary matter, we set forth the standard of review. "Summary judgment shall be rendered forth-with if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court.... When . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C. , 311 Conn. 282, 289-90, 87 A.3d 534 (2014). We next review the law governing governmental immunity. "The [common-law] doctrines that determine the tort liability of municipal employees are well established.... Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts.... Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature.... The hallmark of a discretionary act is that it requires the exercise of judgment.... In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Violano v. Fernandez , supra, 280 Conn. at 318, 907 A.2d 1188. "The tort liability of a municipality has been codified in [General Statutes] § 52-557n. Section 52-557n (a) (1) provides that '[e]xcept as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties .' Section 52-557n (a) (2) (B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves by providing that they will not be liable for damages caused by 'negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.' " Id., at 320, 907 A.2d 1188. "Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society.... Discretionary act immunity reflects a value judgment that-despite injury to a member of the public-the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.... In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion.... This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Internal quotation marks omitted.) Id., at 318-19, 907 A.2d 1188. "This court has identified two other policy rationales for immunizing municipalities and their officials from tort liability. The first rationale is grounded in the principle that for courts to second-guess municipal policy making by imposing tort liability would be to take the administration of municipal affairs out of the hands to which it has been entrusted by law.... Second, we have recognized that a civil trial may be an inappropriate forum for testing the wisdom of legislative actions. This is particularly true if there is no readily ascertainable standard by which the action of the government servant may be measured . Thus, [t]he policy behind the exception is to avoid allowing tort actions to be used as a monkey wrench in the machinery of government decision making." (Citation omitted; internal quotation marks omitted.) Id., at 319 n.7, 907 A.2d 1188. For purposes of determining whether a duty is discretionary or ministerial, this court has recognized that "[t]here is a difference between laws that impose general duties on officials and those that mandate a particular response to specific conditions." Bonington v. Westport , 297 Conn. 297, 308, 999 A.2d 700 (2010). "A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment [or discretion] upon the propriety of the act being done." (Internal quotation marks omitted.) Blake v. Mason , 82 Conn. 324, 327, 73 A. 782 (1909) ; see also Benedict v. Norfolk , 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010) (municipal acts are "deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists"); Pluhowsky v. New Haven , 151 Conn. 337, 347, 197 A.2d 645 (1964) (describing ministerial acts in similar terms). In contrast, when an official has a general duty to perform a certain act, but there is no "city charter provision, ordinance, regulation, rule, policy, or any other directive [requiring the government official to act in a] prescribed manner," the duty is deemed discretionary. Violano v. Fernandez , supra, 280 Conn. at 323, 907 A.2d 1188. "In general, the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity." Grignano v. Milford , supra, 106 Conn. App. at 656, 943 A.2d 507. This is so because there ordinarily is no legal directive mandating the specific manner in which officials must perform these tasks. Rather, "[a] municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method and extent of inspections, maintenance and repairs." Id. ; see also Bonington v. Westport , supra, 297 Conn. at 308-309, 999 A.2d 700 (when plaintiff claimed that defendants had improperly or inadequately inspected neighboring property for zoning violations, alleged acts of negligence constituted discretionary acts because no legal authority mandated inspection to be performed in prescribed manner); Martel v. Metropolitan District Commission , 275 Conn. 38, 50-51, 881 A.2d 194 (2005) (in absence of any policy or directive requiring defendants to design, supervise, inspect and maintain trail on defendant's property, defendants "were engaged in duties that inherently required the exercise of judgment," and, therefore, those duties were discretionary in nature); Evon v. Andrews , supra, 211 Conn. at 506-507, 559 A.2d 1131 (defendants' acts were discretionary in nature because what constitutes reasonable, proper or adequate fire safety inspection to ensure that multi-family residence was in compliance with state and local building codes involves exercise of judgment); Pluhowsky v. New Haven , supra, 151 Conn. at 347-48, 197 A.2d 645 (in absence of any legal directive requiring defendants to repair malfunctioning catch basin under specific conditions or in particular manner, duty was discretionary); Grignano v. Milford , supra, at 656-57, 943 A.2d 507 (ordinance requiring owner of maritime facility to maintain physical improvements in safe condition imposed discretionary duty because ordinance did not "[prescribe] the manner in which the defendant is to perform reasonable and proper inspection and maintenance activities"); Segreto v. Bristol , 71 Conn. App. 844, 857-58, 804 A.2d 928 (city's allegedly negligent design and maintenance of stairwell located on premises of senior center that was owned and operated by city was discretionary because determinations of what is reasonable or proper under particular set of circumstances necessarily involve exercise of judgment), cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). Consistent with these principles, the Appellate Court concluded in Silberstein v. 54 Hillcrest Park Associates, LLC , supra, 135 Conn. App. at 273, 41 A.3d 1147, that the maintenance of storm drains is discretionary in nature. See also Brusby v. Metropolitan District , 160 Conn. App. 638, 656, 127 A.3d 257 (2015) (in absence of legal directive prescribing manner in which sanitary sewer system was to be maintained or repaired, duty was discretionary). In Silberstein , the plaintiffs owned property in the Hillcrest Park neighborhood of Old Greenwich. Silberstein v. 54 Hillcrest Park Associates, LLC , supra, at 264, 41 A.3d 1147. The plaintiffs alleged that the defendants, the Hillcrest Park Tax District (tax district) and Hillcrest Park Association, Inc., which were responsible for maintaining and constructing roads and storm sewers in the Hillcrest neighborhood, had negligently failed to do so, resulting in the periodic flooding of the plaintiffs' property. Id., at 264-65, 41 A.3d 1147. The trial court granted the defendant's motion for summary judgment on the ground of governmental immunity. Id., at 267, 41 A.3d 1147. On appeal, the Appellate Court noted that, although the tax district's bylaws stated clearly that one of the functions of that organization was "to construct and maintain roads . drains, [and] storm sewers"; (internal quotation marks omitted) id., at 273, 41 A.3d 1147 ; the bylaws did not "prescribe the manner in which the roads and drainage systems [were] to be maintained, and there [was] no evidence in the record of any procedure or directive governing the manner of their maintenance." (Emphasis in original.) Id. Accordingly, the court concluded that "the manner in which the defendants discharge their duty to maintain the roads and drainage systems plainly involves the exercise of judgment and discretion," and the duty was, therefore, discretionary. Id. Like the plaintiffs in the present case, the plaintiffs in Silberstein had relied on this court's statement in Spitzer v. Waterbury , supra, 113 Conn. at 88, 154 A. 157, that "[t]he work of constructing drains and sewers, as well as that of keeping them in repair, is ministerial, and the municipality is responsible for negligence in its performance" to support their contention to the contrary. Silberstein v. 54 Hillcrest Park Associates, LLC , supra, 135 Conn. App. at 272, 41 A.3d 1147. In Silberstein , the Appellate Court concluded that Spitzer was distinguishable on the ground that this court had concluded in Spitzer that "a municipality's construction and repair of storm water sewers and drains [were] ministerial because [they were] 'incidental to' the municipality's statutorily imposed duty to maintain its streets and highways.... The court [in Spitzer ] reasoned: 'The duty imposed by statute upon the municipality to maintain the highways within its limits makes it necessary for the municipality to dispose of all surface water falling upon them.' . Thus, the municipality was legally obligated to maintain and repair the drains. In contrast to the municipality in Spitzer , the defendants in [ Silberstein were] not charged with having failed to fulfill a duty that was imposed upon them by statute. Rather, the plaintiffs claim[ed] that the defendants negligently failed to carry out a duty that they assumed pursuant to the tax district bylaws. The tax district bylaws, however, [did] not prescribe the specific manner in which the duty to maintain and repair the roads, drains and storm sewers is to be performed." (Citations omitted; emphasis in original.) Id., at 272, 41 A.3d 1147, quoting Spitzer v. Waterbury , supra, at 87-88, 154 A. 157. The plaintiffs in the present case contend that Spitzer is controlling because, as in that case-unlike Silberstein -the duty of the defendants to repair and maintain the drainage system "originate[s] from the General Statutes, which require Connecticut municipalities to maintain the highways within their limits." The plaintiffs further contend that Silberstein is distinguishable because the plaintiffs in that case alleged that the defendants had negligently failed to install a properly functioning drainage system, and "the decision to build or construct storm water systems is almost universally held to be a governmental discretionary act." (Emphasis added.) In contrast, the plaintiffs in the present case allege that the defendants failed to adequately maintain and repair the storm drainage system, which, they argue are ministerial duties. We disagree with both of these claims. We first address the plaintiffs' contention that the defendants' duty to maintain and repair the sewer system is ministerial because it derives from statute rather from the town's own ordinances or rules. As we have indicated, the Appellate Court also made this distinction in Silberstein v. 54 Hillcrest Park Associates, LLC , supra, 135 Conn. App. at 272, 41 A.3d 1147. In support of the proposition that a duty imposed on a municipality by statute is necessarily ministerial, whereas a duty voluntarily assumed by the municipality is discretionary, the Appellate Court cited only this court's statement in Spitzer v. Waterbury , supra, 113 Conn. at 87, 154 A. 157, that "[t]he duty imposed by statute upon the municipality to maintain the highways within its limits makes it necessary for the municipality to dispose of all surface water falling upon them." (Internal quotation marks omitted.) Silberstein v. 54 Hillcrest Park Associates, LLC , supra, at 272, 41 A.3d 1147. In turn, Spitzer v. Waterbury , supra, at 87, 154 A. 157, supported that proposition with a citation to Bronson v. Wallingford , 54 Conn. 513, 519-20, 9 A. 393 (1887), in which this court suggested, in dictum and without citation to any authority, that a municipality may be held liable for damages caused while carrying out its statutory duty to dispose of surface waters falling on its highways, whereas it would be immune from liability for acts performed pursuant to a duty imposed by the city charter in the absence of any charter provision providing a remedy. Other cases predating Spitzer present a mirror image of this proposition, however, and hold that municipalities may not be held liable when they violate public duties that have been imposed on them by the state, whereas municipalities can be held liable for the violation of duties that they voluntarily take upon themselves. In Jones v. New Haven , 34 Conn. 1, 13 (1867), this court stated that "[w]henever a public duty is imposed upon a town . without its consent, express or implied, such town . is not liable to an action for negligence in respect to such duty, unless a right of action is given by statute." (Emphasis added.) In contrast, "when a grant is made to a [municipality] of some special power or privilege at its request , out of which public duties grow; and when some special duty is imposed upon a [municipality] not belonging to it under the general law with its consent ; in these and like cases, if the corporation is guilty of negligence in the discharge of such duty, thereby causing injury to another, it is liable to an action in favor of the party injured." (Emphasis added.) Id., at 14 ; see also Dyer v. Danbury , 85 Conn. 128, 131, 81 A. 958 (1911) (same). There are also cases predating Spitzer holding that acts performed pursuant to voluntarily assumed duties may be governmental and, therefore, immune from liability, as well as acts performed pursuant to duties imposed by statute. See Hannon v. Waterbury , 106 Conn. 13, 17, 136 A. 876 (1927) ("Whether the duty is directly imposed upon the city or permissive, that is, one which it voluntarily assumed . does not change the character of the act or function. The duty in either case will be governmental if the nature and character of [the] act or function be such."); Pope v. New Haven , 91 Conn. 79, 82, 99 A. 51 (1916) (function may be governmental regardless of whether "the legislature determines the necessity and expediency of the act to be performed" or "the necessity and expediency are left to be determined by the municipality"). We are aware of no authority other than the court's unsupported dictum in Bronson v. Wallingford, supra, 54 Conn. at 519-20, 9 A. 393, however, that would support Spitzer 's suggestion that a duty imposed by statute, as distinct from a duty that is voluntarily assumed by the municipality, is by virtue of that fact ministerial. In any event, the distinction applied by the court in Jones and Dyer has been superseded by more recent developments in municipal law and the law governing governmental immunity. As the Appellate Court recognized in Roman v. Stamford , 16 Conn. App. 213, 219, 547 A.2d 97 (1988), aff'd, 211 Conn. 396, 559 A.2d 710 (1989), "[u]nlike the Dyer and Jones doctrine of assumption of municipal liability based upon a charter provision, the modern construct of municipal liability rests upon distinctly different considerations." See also id., at 218-19, 547 A.2d 97 ("construct [set forth in Jones and Dyer ], wherein special powers are granted to or imposed upon the municipality, harkens back to the days before the advent of the principle of home rule" and, therefore, is no longer "a valid conceptualization of the doctrine of actionable private duties of a municipality"). Specifically, under modern principles of governmental immunity, the salient consideration in determining whether a municipal duty is discretionary or ministerial is not whether the duty was imposed on the municipality by statute or voluntarily assumed pursuant to its own ordinances or regulations, but whether there is any statute, "city charter provision, ordinance, regulation, rule, policy, or any other directive [requiring the government official to act in a ] prescribed manner ." (Emphasis added.) Violano v. Fernandez , supra, 280 Conn. at 323, 907 A.2d 1188 ; see also Roman v. Stamford , supra, at 221, 547 A.2d 97 (under modern principles of governmental immunity, "[a] ministerial act, as opposed to a discretionary act, refers to [one] which is to be performed in a prescribed manner without the exercise of judgment or discretion" [internal quotation marks omitted] ). Accordingly, we disagree with the plaintiffs' argument that Silberstein v. 54 Hillcrest Park Associates, LLC , supra, 135 Conn. App. at 272, 41 A.3d 1147, is not controlling because, unlike in Silberstein , the defendants' duty in the present case was imposed by statute. We next address the plaintiffs' argument that, in contrast to the design of storm water drainage systems, the duty to repair and maintain such systems is ministerial. In support of this claim, the plaintiffs rely on several cases from other jurisdictions. The holdings of those cases, however, can be traced to the outmoded distinction between duties that are imposed on municipalities and those that they voluntarily assume. See Johnston v. District of Columbia , 118 U.S. 19, 21, 6 S. Ct. 923, 30 L. Ed. 75 (1886) (repair of sanitary sewer is ministerial duty), citing Child v. Boston , 86 Mass. 41, 52 (1862) (municipality is not liable for defective sanitary sewer plan because creation of plan involved duty of quasi-judicial nature, but could be held liable for negligent care and maintenance of sanitary sewers because those duties were not imposed by legislative authority for public purposes but were voluntarily assumed by municipality); Barton v. Syracuse , 36 N.Y. 54, 54 (1867) (municipality was liable for negligent failure to repair sanitary sewers because it voluntarily accepted duty and assessed costs on beneficiaries); Portsmouth v. Mitchell Mfg. Co. , 113 Ohio St. 250, 255-56, 148 N.E. 846 (1925) (citing Barton and concluding that municipality cannot be held liable for failure to construct storm sewer but can be held liable for failure to keep storm sewer in repair). In addition, all of these cases either involved or relied on cases involving the maintenance and repair of sanitary sewers, which, unlike the maintenance and repair of storm sewers, arguably may be a proprietary function under certain circumstances, even under more modern case law. See footnote 10 of this opinion. We recognize that, for purposes of imposing liability on a municipality, some Connecticut cases predating Spitzer made the distinction between a municipality's duty to construct roads and sidewalks, and, by extension, the storm drains and sewers that are required to ensure that the roads are functional, as opposed to a duty of maintenance and repair. In Hoyt v. Danbury , 69 Conn. 341, 351, 37 A. 1051 (1897), for example, this court observed that a municipality's statutory obligation to provide highways "carried with it the correlative right of determining the mode of their construction," and "[a]s to which, out of any appropriate modes of building the particular sidewalk in question, was to be chosen, it was for the borough to decide; and so long as the mode selected was an appropriate and lawful one, its decision was not subject to collateral review in a suit of this nature." In other words, Hoyt recognized that the construction of highways is a discretionary function. As to highway repairs , this court noted that municipal liability for the failure to keep roads in good repair had been imposed by statute, now codified at General Statutes § 13a-149, "since early colonial times." Id. The highway defect statute, however, waives governmental immunity from claims by travelers on the highway arising from highway defects. See McIntosh v. Sullivan , 274 Conn. 262, 282, 875 A.2d 459 (2005) (highway defect statute at issue in Hoyt "abrogated governmental immunity"). Put differently, the highway defect statute does not impose a ministerial duty to repair highways, so that a municipality may be held liable to abutting landowners for breach of that duty. See Aerotec Corp. v. Greenwich , 138 Conn. 116, 119, 82 A.2d 356 (1951) (highway defect statute "provides no right of recovery to an abutting landowner for damage from a defective highway"). Thus, the distinction made in Hoyt between the construction of highways and their repair, which was premised on the highway defect statute, is consistent with the modern rule distinguishing "laws that impose general duties on officials," which impose discretionary duties, "and those that mandate a particular response to specific conditions," which impose ministerial duties. Bonington v. Westport , supra, 297 Conn. at 308, 999 A.2d 700. The authority that Spitzer itself cited in support of its statement that the duty to construct and repair drainage systems is ministerial also can be at least partially reconciled with the modern rule. In Spitzer , this court relied on a treatise on Municipal Corporations authored by John F. Dillon. See Spitzer v. Waterbury , supra, 113 Conn. at 88, 154 A. 157, citing 4 J. Dillon, Commentaries on the Law of Municipal Corporations (5th Ed. 1911) § 1742 and 1743, pp. 3054-57. That treatise states the following: "[A] municipal corporation is liable for negligence in the ministerial duty to keep its sewers . in repair ." (Emphasis in original.) 4 J. Dillon, supra, § 1742, p. 3055. A careful review of the treatise, however, reveals that this statement was at least partially premised on the principle that municipalities are "bound to preserve and keep in repair erections [they have] constructed, so that they shall not become a source of nuisance to others." (Emphasis altered; internal quotation marks omitted.) Id. Consistent with this principle, it is well established in this state that "towns will not be justified in doing an act lawful in itself in such a manner as to create a nuisance, any more than individuals. And if a nuisance is thus created, whereby another suffer[s] damage, towns like individuals are responsible." (Internal quotation marks omitted.) Hoffman v. Bristol , 113 Conn. 386, 390, 155 A. 499 (1931) ; accord Keeney v. Old Saybrook , 237 Conn. 135, 165, 676 A.2d 795 (1996) ("a municipality may be liable for a nuisance it creates through its negligent misfeasance or nonfeasance"); Wright v. Brown , 167 Conn. 464, 470, 356 A.2d 176 (1975) ("[l]iability in nuisance can be imposed on a municipality only if the condition constituting the nuisance was created by the positive act of the municipality"); Prifty v. Waterbury , 133 Conn. 654, 657, 54 A.2d 260 (1947) ("the rule which exempts municipalities from liability when their employees are acting in discharge of a public duty does not relieve them from liability for the consequences of particular acts which the municipality has directed to be performed and which, from their character or the manner in which they are so ordered to be executed, will naturally work a direct injury to others or create a nuisance"); Colwell v. Waterbury , 74 Conn. 568, 572-73, 51 A. 530 (1902) (same); Judd v. Hartford , 72 Conn. 350, 354, 44 A. 510 (1899) (although duty to construct sewer was governmental, municipality could be held liable for negligent failure to remove temporary obstructions after construction because failure to do so turned "city property into a nuisance"); Mootry v. Danbury , 45 Conn. 550, 556 (1878) (when town constructed bridge over stream that blocked water flow, causing plaintiff's upstream property to flood, it may be held liable because "towns will not be justified in doing an act lawful in itself in such a manner as to create a nuisance, any more than individuals"). The fact that a municipality may be liable for creating a nuisance, however, does not necessarily mean-at least not under our more recent cases-that the act that created the nuisance was ministerial in nature. Indeed, this court has held that "a municipality may be liable for a nuisance . even if [its] misfeasance or nonfeasance also constitutes negligence from which the municipality would be immune" because the municipality was engaged in a discretionary function. Keeney v. Old Saybrook , supra, 237 Conn. at 165, 676 A.2d 795 ; but see Judd v. Hartford , supra, 72 Conn. at 353-54, 44 A. 510 (duty to remove temporary obstructions from sewer so as to prevent creation of nuisance was ministerial). In other words, unlike Dillon's treatise, which seems to suggest that ministerial acts are the only acts for which a municipality may be held liable and, therefore, that if a municipality can be held liable for creating a nuisance, the municipal function that resulted in the creation of the nuisance must be a ministerial one, our more recent cases have treated nuisance and the violation of a ministerial duty as entirely distinct theories of municipal liability. See Grady v. Somers , 294 Conn. 324, 335 n.10, 984 A.2d 684 (2009) (governmental immunity does not apply to claims alleging "[1] liability in nuisance, which [may] be imposed . only if the condition constituting the nuisance was created by the positive act of the municipality; and [2] the negligent performance of ministerial acts" [internal quotation marks omitted] ); see also Keeney v. Old Saybrook , supra, 237 Conn. at 165, 676 A.2d 795. Accordingly, although we agree with Dillon's treatise to the extent that it recognizes that there are situations in which a municipality may be held liable for damage caused by a storm sewer system that the municipality was responsible for maintaining and repairing-namely, when the municipality's positive act has created a nuisance-we do not agree with its suggested inference from that proposition, namely, that the duty to maintain and repair storm sewers is necessarily ministerial. Indeed, if that were the case, municipalities could be held liable for any damage caused by their failure to maintain and repair storm sewer systems, even if the "positive act" element of nuisance were not satisfied. See Wright v. Brown , supra, 167 Conn. at 470, 356 A.2d 176 ("[l]iability in nuisance can be imposed on a municipality only if the condition constituting the nuisance was created by the positive act of the municipality"). We therefore disagree with the plaintiffs' argument that, in determining whether a municipality's duty with respect to its storm drains and sewers is ministerial or discretionary, the relevant considerations are (1) whether the duty was imposed by statute or, instead, was voluntarily assumed by the town, and (2) whether the municipality was constructing the sewers or, instead, was maintaining or repairing them. Rather, the relevant consideration under well established modern principles of governmental immunity remains whether the duty was a general one or, instead, whether there was a "city charter provision, ordinance, regulation, rule, policy, or any other directive [requiring the government official to act in a] prescribed manner." Violano v. Fernandez , supra, 280 Conn. at 323, 907 A.2d 1188 ; see also Bonington v. Westport , supra, 297 Conn. at 308, 999 A.2d 700 ("[t]here is a difference between laws that impose general duties on officials and those that mandate a particular response to specific conditions"). To the extent that Spitzer v. Waterbury , supra, 113 Conn. at 84, 154 A. 157, held otherwise, it is hereby overruled. We conclude, therefore, that the defendants in the present case may be held liable to the plaintiffs only if there was some legal directive prescribing the specific manner in which they were required to maintain and repair the town's storm sewer system. As we have indicated, the Appellate Court concluded that, "although there is language in § 16-32 of the [Naugatuck Code of Ordinances] that requires the streets commission to maintain and repair the town's storm water sewer system, the ordinance contains no provisions that mandate the time or manner in which those responsibilities are to be executed, leaving such details to the discretion and judgment of the municipal employees." Northrup v. Witkowski , supra, 175 Conn. App. at 238, 167 A.3d 443. The plaintiffs do not challenge the Appellate Court's conclusion that the language of that ordinance does not, in and of itself, create a ministerial duty. Instead, the plaintiffs claim that Witkowski's deposition testimony that the streets commission had developed a schedule to ensure that every catch basin was maintained at least once a year and that, "if there were calls from the public about a basin being blocked or a bad situation that needed to be addressed, we would attempt to do that," established the existence of a rule or policy that limited the streets commission's discretionary authority under § 16-32 of the Naugatuck Code of Ordinances and thereby created a ministerial duty. In support of this claim, the plaintiffs argue that, in Mills v. Solution, LLC , 138 Conn. App. 40, 51-52, 50 A.3d 381, cert. denied, 307 Conn. 928, 55 A.3d 570 (2012), the Appellate Court held that, although the use of the mandatory language "shall" in a statute does not necessarily create a ministerial duty, if the municipality has a policy or rule limiting the discretion of public officials in the performance of a mandatory duty that would otherwise be discretionary, the duty is ministerial. We are not persuaded that this is a correct interpretation of Mills . Rather, Mills is more reasonably interpreted as holding that mandatory statutory language is not sufficient to create a ministerial duty unless the statute itself limits discretion in the performance of the mandatory act. See id., at 52, 50 A.3d 381 ("[w]here the text of the statute explicitly vests the chief of police with the discretion to determine when and how to furnish police protection, we decline to hold that the same statute imposes a ministerial duty on the chief of police to furnish the protection he deems, in his discretion, to be necessary"). We need not decide, however, whether the existence of a municipal agency's "policy or rule" that limits the agency's discretion in performing a duty imposed by ordinance or statute can ever convert a duty that otherwise would be discretionary into a ministerial duty because, even if we were to assume, without deciding, that there are circumstances under which it can, we conclude that Witkowski's testimony would not be sufficient to establish the existence of such a policy or rule in the present case. This court previously has held that a municipality may be held liable for the negligent performance of a duty only if the "the official's duty is clearly ministerial." (Emphasis added; internal quotation marks omitted.) Bonington v. Westport , supra, 297 Conn. at 308, 999 A.2d 700. We conclude that neither the creation of a schedule for cleaning all catch basins at least once per year, nor the practice of attempting to respond to every complaint about malfunctioning storm drains, constitutes a "policy or rule" converting the discretionary duty to carry out the functions mandated by § 16-32 of the Naugatuck Code of Ordinances into a clear ministerial duty. If we were to conclude otherwise, virtually any attempt by a municipal agency to ensure that its discretionary duties are regularly and properly carried out would convert its discretionary duty into a ministerial duty, thereby creating a disincentive for municipal agencies to make such attempts and undermining the very policy considerations that the doctrine governmental immunity was intended to advance. See Violano v. Fernandez , supra, 280 Conn. at 319, 907 A.2d 1188 ("[d]iscretionary act immunity reflects a value judgment that-despite injury to a member of the public-the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury" [internal quotation marks omitted] ). For similar reasons, we reject the plaintiffs' claim that the defendants violated a ministerial duty when they completely failed to perform any maintenance or repair of some storm drains and catch basins. In support of this claim, the plaintiffs rely on this court's decision in Evon v. Andrews , supra, 211 Conn. at 506, 559 A.2d 1131, in which we noted that the plaintiffs had not alleged that "the defendants failed to inspect the dwelling" but that they had "failed to make reasonable and proper inspections ." (Emphasis in original; internal quotation marks omitted.) The plaintiffs contend that this implies that municipalities have no discretion to completely fail to perform a mandatory duty, even if the manner of carrying out the duty is discretionary. We disagree. First, the plaintiffs have cited no evidence that would support a finding that there are town storm drains and catch basins that the defendants have never maintained or repaired, and the frequency of maintenance and repair is discretionary. See Grignano v. Milford , supra, 106 Conn. App. at 656, 943 A.2d 507 ("[a] municipality necessarily makes discretionary policy decisions with respect to the timing, frequency , method and extent of inspections, maintenance and repairs" [emphasis added] ). Second, even if we were to assume that the defendants never maintained or repaired certain storm drains and catch basins, we cannot conclude that, in a system as large and complex as a municipal storm drainage system, the duty to maintain and repair the system encompasses a judicially enforceable duty to maintain and repair each individual component of the system, regardless of the needs of the system as a whole. It is not the function of this court to second-guess the administration of such complex municipal affairs, particularly when "there is no readily ascertainable standard by which the action of the government servant may be measured ." (Internal quotation marks omitted.) Violano v. Fernandez , supra, 280 Conn. at 319 n.7, 907 A.2d 1188. For the foregoing reasons, we conclude that the defendants' duty to maintain and repair the town's storm drains and sewers was discretionary and that the Appellate Court properly upheld the trial court's granting of the defendant's motion for summary judgment on the ground of governmental immunity. The judgment of the Appellate Court is affirmed. In this opinion PALMER, McDONALD, D'AURIA and KAHN, Js., concurred. For the sake of simplicity, we refer to the plaintiffs individually by first name when necessary. We also note that the present action was brought on Timothy's behalf by Helen, his mother, as next friend. The following officials were named as defendants: (1) Robert A. Mezzo, the town's mayor; (2) Henry J. Witkowski, Jr., who served as the town's superintendent of streets; and (3) James Stewart, who served as town engineer until 2009, when he was appointed director of the town's newly formed public works department, which replaced the streets commission. We granted the plaintiffs' petition for certification to appeal, limited to the following issue: "Did the Appellate Court properly conclude that the maintenance and repair of storm water systems is a discretionary duty, in light of this state's precedents, including Spitzer v. Waterbury , [supra, 113 Conn. at 84, 154 A. 157 ], and Silberstein v. 54 Hillcrest Park Associates, LLC , 135 Conn. App. 262, 41 A.3d 1147 (2012) ?" Northrup v. Witkowski , 327 Conn. 971, 173 A.3d 392 (2017). "In their complaint, the plaintiffs define 'black water' as surface rainwater that overwhelms and causes a [backup] in the sanitary sewer system, resulting in flood waters that contain sewage and other contaminants." Northrup v. Witkowski , supra, 175 Conn. App. at 226 n.4, 167 A.3d 443. On appeal to the Appellate Court, the plaintiffs contended that the trial court improperly (1) determined that the governmental acts complained of were discretionary in nature rather than ministerial, (2) concluded that the identifiable person-imminent harm exception to governmental immunity did not apply, and (3) raised sua sponte the issue of whether the plaintiffs' allegations of recklessness directed against the individual defendants could be maintained against them and ultimately concluded that the claims were barred by government immunity. Northrup v. Witkowski , supra, 175 Conn. App. at 225-26, 245-46, 167 A.3d 443. The Appellate Court rejected all of these claims. Id., at 250, 167 A.3d 443. The Appellate Court's rulings on the second and third claims are not at issue in this certified appeal. See footnote 3 of this opinion. After the plaintiffs filed this certified appeal, we granted permission to the cities of Bridgeport, Danbury, Hartford, New Haven, Stamford and Waterbury to file a joint brief as amicus curiae in support of the defendants' position. See, e.g., Grignano v. Milford , supra, 106 Conn. App. at 657-60, 943 A.2d 507 (municipal ordinance requiring owner of structure within harbor or marine facility that has been found to be dangerous to post proper notice, to construct barricade, and to adequately illuminate area until repairs are made created ministerial duty); see also Wright v. Brown , 167 Conn. 464, 471-72, 356 A.2d 176 (1975) (statute requiring town dog warden to quarantine dog for fourteen days after dog bit person created ministerial duty); Pluhowsky v. New Haven , 151 Conn. 337, 347, 197 A.2d 645 (1964) (town clerk has ministerial duty to record instrument that has been accepted for recordation in land records); Leger v. Kelley , 142 Conn. 585, 589, 116 A.2d 429 (1955) (statute prohibiting commissioner of motor vehicles from registering any motor vehicle that was not equipped with safety glass created ministerial duty). The plaintiffs do not identify the specific statutes that, according to them, impose this ministerial duty. We note, however, that General Statutes § 13a-99 provides: "Towns shall, within their respective limits, build and repair all necessary highways and bridges, and all highways to ferries as far as the low water mark of the waters over which the ferries pass, except when such duty belongs to some particular person. Any town, at its annual meeting, may provide for the repair of its highways for periods not exceeding five years and, if any town fails to so provide at such meeting, the selectmen may provide for such repairs for a period not exceeding one year." Bronson also states that municipalities may be held liable for damage caused by rainwater runoff from roadbeds "only in special cases, where wanton or unnecessary damage is done, or where [the] damage results from negligence ." Bronson v. Wallingford , supra, 54 Conn. at 520, 9 A. 393. The cases cited in Bronson , however, may be characterized as sounding in nuisance. See id. As we discuss more fully subsequently in this opinion, a municipality may be held liable for the creation of a nuisance even when the act that created the nuisance was, in the language of the older cases, governmental or, in the language of more recent cases, discretionary. Thus, Bronson may have conflated the notion that a municipality may be held liable for creating a nuisance while carrying out a statutory duty with the notion that a municipality may be held liable for the performance of nongovernmental acts. Suffice it to say that there are a myriad of cases in Connecticut and other jurisdictions addressing the issue of municipal liability for damages caused by the failure to maintain roads and sewers, and it is likely possible to find an isolated case to support any position. See 4 J. Dillon, Commentaries on the Law of Municipal Corporations (5th Ed. 1911) § 1740, p. 3051 ("[i]t is, perhaps, impossible to reconcile all of the cases" on subject of municipal liability for damage caused by municipal drains and sewers). Remnants of the construct set forth in Dyer and Jones survive in the principle that a municipality may be held liable for negligent acts that are proprietary in nature, as opposed to governmental. See Considine v. Waterbury , 279 Conn. 830, 844, 905 A.2d 70 (2006) ("municipalities are liable for their negligent acts committed in their proprietary capacity"); see also General Statutes § 52-557n (a) (1) ("a political subdivision of the state shall be liable for damages to person or property caused by . [B] negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit"). Although "the distinction between a municipality's governmental and proprietary functions has been criticized as being illusory, elusive, arbitrary, unworkable and a quagmire"; Considine v. Waterbury , supra, at 845, 905 A.2d 70 ; it is relatively clear that, under the more modern rule, not all duties that a municipality voluntarily assumes for the benefit of its inhabitants, as distinct from those that it performs for the benefit of the general public as the agent of the state, are proprietary or, in the language of the older cases, corporate, and, therefore, subject to liability. See id., at 846, 905 A.2d 70 ("functions that appear to be for the sole benefit of a municipality's inhabitants, but nevertheless provide indirect benefits to the general public because the activities were meant to improve the general health, welfare or education of the municipality's inhabitants" are governmental); id., at 848, 905 A.2d 70 ("a municipality is engaged in a proprietary function when it acts very much like private enterprise" [internal quotation marks omitted] ). The plaintiffs in the present case make no claim that the maintenance and repair of a storm sewer system is proprietary in nature. Cf. Platt Bros. & Co. v. Waterbury , 72 Conn. 531, 549, 45 A. 154 (1900) ("[w]hile sewers or drains for the disposition of surface waters collecting in highways may be considered as mere adjuncts of a highway, partaking of its nature as a governmental use . it is different with sewers for the disposition of refuse and filth accumulated on private property " [citation omitted; emphasis added] ); Brusby v. Metropolitan District , supra, 160 Conn. App. at 653, 127 A.3d 257 (concluding that there was genuine issue of material fact as to whether maintenance of sanitary sewer system, of which plaintiff was paying customer, was proprietary function). New York state courts continue to accept this distinction between duties that are imposed on municipalities and those that they voluntarily assume. See Fireman's Fund Ins. Co. v. Nassau , 66 App. Div. 3d 823, 824, 887 N.Y.S.2d 242 (2009) (municipality is immune from liability for negligent design of sanitary sewer, but maintenance of sewer is ministerial function); Biernacki v. Ravena , 245 App. Div. 2d 656, 657, 664 N.Y.S.2d 682 (1997) (following Johnston and concluding that, while municipality is not liable for defective sanitary sewer plan, construction and repair of sewer are ministerial functions). The plaintiffs have not cited any Connecticut cases to support their position that the construction of sewers is discretionary but that their maintenance and repair are ministerial. We note that Spitzer itself made no such distinction, but indicated that "[t]he work of constructing drains and sewers, as well as that of keeping them in repair, is ministerial ." Spitzer v. Waterbury , supra, 113 Conn. at 88, 154 A. 157. Spitzer also stated, however, that "the duty to provide . drains, authorized by the defendant's charter, is governmental in its nature." Id. Because, at that time, acts in furtherance of governmental or public duties were deemed to be immune from liability, i.e., not ministerial; see Gauvin v. New Haven , 187 Conn. 180, 184, 445 A.2d 1 (1982) (citing Spitzer for proposition that "[a] municipality is immune from liability for the performance of governmental acts, as distinguished from ministerial acts"); there would appear to be an inconsistency within Spitzer . This apparent inconsistency may reflect the somewhat confusing state of the law governing governmental immunity at the time. General Statutes § 13a-149 provides in relevant part: "Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair...." Dillon's treatise also relied on the now outmoded distinction between public duties, which are imposed on municipalities, and corporate duties, which municipalities voluntarily assume. See 4 J. Dillon, supra, § 1742, p. 3057 n.1. We note that Spitzer cited Judd and Mootry in support of its conclusion that a municipality is "bound to exercise due care in the construction of its storm water sewers, and would be liable for its failure to do so ." Spitzer v. Waterbury , supra, 113 Conn. at 88, 154 A. 157. This court stated in Elliott v. Waterbury , 245 Conn. 385, 421, 715 A.2d 27 (1998), that, "in order to overcome the governmental immunity of municipal defendants where it applies, the plaintiff must prove that the defendants, by some positive act, intentionally created the conditions alleged to constitute a nuisance." (Emphasis added.) In support of this statement, this court cited, among other cases, Keeney v. Old Saybrook , supra, 237 Conn. at 165-66, 676 A.2d 795, and Hoffman v. Bristol , supra, 113 Conn. at 390-92, 155 A. 499. See Elliott v. Waterbury , supra, at 421, 715 A.2d 27. In both Keeney and Hoffman , however, this court expressly recognized that a municipality may be held liable for negligently creating a nuisance. See Keeney v. Old Saybrook , supra, at 165, 676 A.2d 795 (municipality may be held liable for nuisance even if its conduct "constitutes negligence from which the municipality would be immune"); Hoffman v. Bristol , supra, at 389, 155 A. 499 (municipality may be held liable for nuisance "irrespective of whether the misfeasance or nonfeasance causing the nuisance also constituted negligence"); see also Judd v. Hartford , supra, 72 Conn. at 353, 44 A. 510 (municipality was liable when, "after planning and constructing an adequate sewer, [the municipality] left obstructions in it, placed there for temporary purposes, which its agents carelessly omitted to remove after those purposes had been accomplished" [emphasis added] ). It is clear, therefore, that, by using the word "intentionally," Elliott merely intended to emphasize that, for a municipality to be held liable for creating a nuisance, the nuisance must be the result of some positive act of the municipality, and that this court did not intend to suggest that only the intentional act of a municipality can create a nuisance. In other words, there is a difference between a positive act, which may be negligent, as was the act of the municipality in Judd , and an intentional act. The plaintiffs in the present case have made no claim that the defendants may be held liable for their failure to properly maintain and repair the storm sewer system under a nuisance theory because a positive act by the town caused damage to their property. Indeed, at oral argument before this court, counsel for the plaintiffs conceded that he did not believe that the facts of this case would support a nuisance claim. See Aerotec Corp. v. Greenwich , supra, 138 Conn. at 120, 82 A.2d 356 (noting that municipal liability for nuisance "exists . only for those nuisances which have been created by positive act" and that "[t]here is no liability where the condition of the highway which is dangerous has come into being simply because of the failure of the town to take remedial steps"); Karnasiewicz v. New Britain , 131 Conn. 691, 694, 42 A.2d 32 (1945) (when dangerous highway condition does not constitute defect under highway defect statute and does not constitute nuisance, "a municipality is not liable where its sole fault is a failure to take remedial steps"); see also footnote 18 of this opinion. These decisions lend support to our conclusion that the maintenance and repair of a storm drainage system are not ministerial functions. It would be odd to conclude that a city is not liable for harms caused by a dangerous condition on a highway unless the condition was created by a positive act of the municipality or constituted a defect under the highway defect statute, but the city may be held liable for harms caused by the failure to take steps to remedy a dangerous condition in a storm drainage system. We recognize that this court has held that, by enacting § 52-557n, the legislature eliminated common-law actions against municipalities arising from injuries for which § 13a-149, the highway defect statute, provides a remedy, including nuisance actions. See Sanzone v. Board of Police Commissioners , 219 Conn. 179, 192, 592 A.2d 912 (1991) (§ 52-557n provides that § 31a-149 "is a plaintiff's exclusive remedy against a municipality or other political subdivision 'for damages resulting from injury to any person or property by means of a defective road or bridge' "); see also General Statutes § 52-557n (a) (1) (providing that municipality may be held liable for its negligent acts and negligent acts of its employees acting within scope of official duties, for acts from which political subdivision derives corporate profit, and for creation of nuisance, "provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149"). As we have indicated herein, however, § 13a-149 does not provide a right of recovery to an abutting landowner for damage to the land caused by a defective highway. See Aerotec Corp. v. Greenwich , supra, 138 Conn. at 119, 82 A.2d 356. Moreover, a highway need not be defective to constitute a nuisance to abutting landowners. See Wright v. Brown , supra, 167 Conn. at 470, 356 A.2d 176 ("[l]iability in nuisance can be imposed on a municipality only if the condition constituting the nuisance was created by the positive act of the municipality"). Section 16-32 of the Naugatuck Code of Ordinances provides: "Except as otherwise provided in this article, the streets commission shall be responsible for the care and management of all streets, avenues, highways, alleys and bridges, and the opening, [grading, improving], repairing and cleaning of the same; of the construction, protection, repair, furnishing, cleaning, heating, lighting and general care of all public streets and appurtenances, except such as are by the express terms of the Charter under the control of some other officer or department; of the construction, repair, cleaning and general care of all drains, culverts, sluiceways and catch basins, and the collection and disposing of ashes, garbage and refuse. The streets commission shall make all suitable rules and regulations in regard to the department and the conduct of its business." The plaintiffs raised this claim for the first time in their reply brief. They contend that they did not raise this claim in their main brief because "the question certified by this [court] was not specific to the [town's] directives, but to storm water systems in general ." They point out that the defendants nevertheless addressed "the question more narrowly as it relates only to the [town]." The plaintiffs fail to recognize, however, that this court is required to reach the question of whether the defendants' own acts had created a ministerial duty only if it rejects their claim that a ministerial duty was created by statute and that our review of the former issue can only be to their benefit. By failing to address the issue in their main brief, the plaintiffs effectively abandoned it. See, e.g., State v. Jose G. , 290 Conn. 331, 341 n.8, 963 A.2d 42 (2009) ("[i]t is a well established principle that arguments cannot be raised for the first time in a reply brief" [internal quotation marks omitted] ). Nevertheless, because the plaintiffs cannot prevail on this claim, and because the defendants have briefed it, we review it. See Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc. , 311 Conn. 123, 157-58, 84 A.3d 840 (2014) (review of unpreserved claim may be appropriate when party who raised it cannot prevail). See also Wisniewski v. Darien , 135 Conn. App. 364, 374-75, 42 A.3d 436 (2012) (although no legal directive prescribed specific manner in which tree warden was required to perform duties, evidence that town's assistant director of public works had repeatedly provided same general direction to tree warden upon receiving complaints of unsafe trees and tree warden's testimony that he had nondiscretionary duty to perform inspection upon receipt of complaint were sufficient to establish ministerial duty); Kolaniak v. Board of Education , 28 Conn. App. 277, 281, 610 A.2d 193 (1992) (in case in which board of education had issued bulletin to all maintenance personnel directing that walkways were to be inspected and kept clean on daily basis, maintenance workers had no discretion to determine whether there was sufficient accumulation of snow before clearing walkways but had ministerial duty to clear walkways of snow and ice). The dissenting justice would conclude that, because "[o ]nly the municipality can construct a storm water drainage system and, once constructed, only the municipality can maintain the system and repair it to prevent property damage foreseeably resulting from its malfunction," and "[b]ecause storm water drainage systems are municipal property and subject to exclusive municipal control," a municipality should not be permitted to invoke municipal immunity to "escape liability." (Internal quotation marks omitted.) The very purpose of the doctrine of governmental immunity, however, is to bar liability for harmful negligent conduct by a municipality, and it is in the very nature of harmful negligent conduct that the harm was within the power of the tortfeasor to prevent. Thus, to create an exception to the doctrine in cases in which the dangerous condition was within the municipality's control and the municipality could have prevented the harm would eviscerate the doctrine, and would entirely disregard the underlying "value judgment that-despite injury to a member of the public-the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury." (Internal quotation marks omitted.) Violano v. Fernandez , supra, 280 Conn. at 319, 907 A.2d 1188.

12510730

John RAUSER v. PITNEY BOWES, INC., et al.

Rauser v. Pitney Bowes, Inc.

2019-06-11

AC 41025

124

134

211 A.3d 124

211

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:58:01.966564+00:00

Fastcase

John RAUSER v. PITNEY BOWES, INC., et al.

John RAUSER v. PITNEY BOWES, INC., et al. AC 41025 Appellate Court of Connecticut. Argued March 19, 2019 Officially released June 11, 2019 Michael Kerin, for the appellant (plaintiff). Michael M. Buonopane, for the appellee (named defendant). Alvord, Keller and Beach, Js.

4817

29583

KELLER, J. The plaintiff, John Rauser, appeals from the decision of the Compensation Review Board (board), affirming the decision of the Workers' Compensation Commissioner for the Third District (commissioner) dismissing the plaintiff's claim for workers' compensation benefits. The plaintiff claims that the board erred in affirming the commissioner's decision in light of the fact that the commissioner failed to set forth a factual determination with respect to whether, at the time he sustained the injuries for which he sought benefits, he was on the direct route of his business travel. We affirm the decision of the board. On the basis of the subordinate factual findings made by the commissioner, we set forth the relevant facts as follows. On or about June 11, 2014, the plaintiff was employed by the defendant Pitney Bowes, Inc., as a director of channel management. He had been employed by the defendant for twenty-eight years. Part of his work related duties required him to develop a rapport with members of the defendant's sales staff in order to understand and evaluate not only what they have sold to the defendant's customers, but to approve or disapprove of their sales methods. On June 8, 2014, the plaintiff and another coworker, both of whom resided in Connecticut, traveled to Spokane, Washington, to meet with local sales staff employed by the defendant. As with prior work related travel of this nature undertaken by the plaintiff to evaluate sales, the defendant paid for expenses related to airfare, lodging, car rental, food, and alcoholic drinks. The plaintiff had business meetings with Spokane sales staff on June 9 and 10, 2014. On June 11, 2014, a Spokane based sales representative, Trish Lopez, invited the plaintiff and other supervisory staff to a social gathering at a Spokane bar and restaurant named Fast Eddie's All Purpose Pub (Fast Eddie's). Lopez sent the invitations on behalf of Sean Johnson, who was employed by the defendant as a general financial sales specialist. There was no formal agenda for the event, as there would be for a business meeting, and attendance was considered to be voluntary. The invitation, which Lopez sent by e-mail, specified that the gathering at Fast Eddie's was scheduled to begin at 5:30 p.m. The plaintiff and several of his Spokane colleagues attended the gathering. The plaintiff began consuming alcoholic beverages immediately upon his arrival at or about 5:30 p.m. The plaintiff engaged in what he viewed as joking around with his colleagues, although he acknowledged that several of his jokes and comments were "inappropriate and beyond the bounds of what [the defendant] would say is acceptable." For example, the plaintiff offered to assist two of his female colleagues with work matters in exchange for "sexual favors." Only a small portion of the conversation at Fast Eddie's was devoted to discussing the defendant's interests. Lopez had been instructed by one of her superiors, Jonathan Allen, to keep an open tab at Fast Eddie's to cover expenses up to $500, but no later than 8 p.m., whichever occurred first. At 8 p.m., Lopez closed the tab incurred at Fast Eddie's, which totaled $304.78. Later, Lopez was reimbursed for this expenditure. After 8 p.m., the plaintiff and some of his colleagues left Fast Eddie's and went to a neighboring restaurant and bar named Borracho Tacos & Tequilera (Borracho). There, the plaintiff consumed even more alcoholic beverages and continued to make comments of a sexual nature to and in the presence of his coworkers. For example, the plaintiff stated to a female coworker that if she would expose her breasts to him, he would "approve anything" that she sent to him. While at Borracho, one of his coworkers overheard him making a comment of a sexual nature to at least one other patron who was not an employee of the defendant. By 9:30 p.m., the plaintiff was visibly intoxicated, and, by midnight, the plaintiff's blood alcohol content was estimated to be .202, which significantly impaired his judgment, control, memory, skills, ability to react, and ability to assess risk. Moreover, the plaintiff's blood alcohol content greatly exceeded the legal limit for purposes of operating a motor vehicle in Washington. Shortly after midnight on June 12, 2014, the plaintiff, accompanied by Johnson, exited Borracho. While walking outside in the vicinity of Borracho, several men, who were unknown to the plaintiff and Johnson, beat the plaintiff severely. The plaintiff sustained life threatening injuries for which he required immediate hospitalization. Following his release from the hospital, he underwent significant periods of rehabilitation both in Washington and Connecticut. Although the plaintiff's condition has improved, he continues to experience the effects of some of his injuries, including a diminished sense of taste and smell, as well as difficulty in per-forming some cognitive functions. The plaintiff sought workers' compensation benefits related to the injuries he sustained in Spokane. The commissioner held a hearing related to the claim, which the defendant disputed, during which the commissioner considered documentary evidence related to the events at issue, the plaintiff's employment, and his medical treatment following the assault. The commissioner also considered the testimony of the plaintiff and several other witnesses who observed the plaintiff during the events leading up to the assault, including Johnson, Lopez, Desiree Cimarrustti, and Peter Binder. The commissioner went on to consider the testimony of Kevin O'Brien and Robbie Narcisse, both of whom had investigated the relevant events in the course of their employment with the defendant. Additionally, the commissioner considered the testimony of Marc Bayer, a toxicologist who had analyzed the plaintiff's blood alcohol content and opined with respect to the degree to which the plaintiff's blood alcohol content likely affected him during the events at issue. Finally, the court considered the police reports related to the assault. In dismissing the claim for benefits, the commissioner found that any business purpose for which the plaintiff was present at Fast Eddie's ended by the time that Lopez paid the bar tab at 8 p.m., and that any food or drink consumed at Fast Eddie's or Borracho after that time was "purely social in nature and unrelated to the business interests of [the defendant]." The commissioner also found that "the intoxication, the sexual comments, and the drinking that continued until the midnight hour constitute a substantial deviation from work in furtherance of the employer's business ." The commissioner concluded that "the [plaintiff] failed in his burden of persuasion to show that the assault arose out of and in the course of his duties for the employer" and that the claim was not compensable. Following the commissioner's decision, the plaintiff appealed to the board. In relevant part, the plaintiff claimed that the commissioner had erred in his determination that the plaintiff's injuries did not arise out of and in the course of his employment. The plaintiff argued that "he was assaulted and sustained injuries . incidental to his work for [the defendant] and he would not have been where he was when he was assaulted if it was not for his business trip to Spokane, Washington and, more specifically, at the work event which was at Fast Eddie's on the night of June 11, 2014." Relying on the commissioner's factual findings, the board rejected the plaintiff's argument. It stated: "The fundamental question which must be answered here is whether, at the time of the injury, the [plaintiff] had deviated from his employment and was not doing something incidental to his employment. Pertinent to this inquiry, the . commissioner found that after 8 p.m. on June 11, 201[4], the [plaintiff] was no longer serving the business interests of the employer. The consumption of food, alcohol, and the nature of the discussions occurring after 8 p.m. on June 11, 201[4], constituted a substantial deviation from activities related to the [defendant's] business . Such factual determinations will not be disturbed unless they are contrary to law, without evidence, or based on unreasonable or impermissible factual inferences . On review, we are not persuaded that the trier's conclusion violates this appellate standard." (Citation omitted; footnote omitted.) The board also stated: "In the present matter, the [defendant's] encouragement of the [plaintiff's] social activities can only be inferred to support the time the claimant spent at Fast Eddie's. After 8 p.m. on the evening in question, the [plaintiff] no longer enjoyed the express consent or implied acquiescence of his employer for his social pursuits." Accordingly, the board affirmed the commissioner's dismissal of the plaintiff's claim. The plaintiff argues that it is unnecessary for this court to resolve the issue of whether the commissioner correctly determined that, during the four hours between 8 p.m. and midnight, he had substantially deviated from his work on behalf of the defendant. He relies on the legal proposition that, even after an employee has completed a substantial personal deviation from his work, once he has resumed the direct route of his business travel, any injury occurring on that business route is ordinarily compensable. See, e.g., 2 A. Larson, Larson's Workers' Compensation Law (2018) § 17.03 ("we may also set aside one clearly compensable type of case-that in which the personal deviation has been completed and the direct business route has been resumed"); 2 A. Sevarino, Connecticut Workers' Compensation After Reforms (7th Ed. 2017) § 4.22.9, p. 579 ("[a]ny identifiable and significant deviation from a business trip for personal reasons takes the injured worker out of the course of employment until s/he returns, if ever, to the pursuit of business matters"). Before this court, the plaintiff claims that the board erred in affirming the commissioner's decision in light of the fact that the commissioner failed to make a factual determination with respect to whether, at the time he sustained the injuries for which he sought benefits, he was on the direct route of his business travel. The plaintiff argues that the evidence demonstrates that he was "on the direct business route of travel from Fast Eddie's . to [his] employer provided automobile" when he sustained the injuries underlying his claim. He argues in relevant part: "As the undisputed documentary evidence in the present case demonstrates, the [plaintiff] at the commencement of his being attacked by unknown assailants was returning to the rental car provided for his transportation during his business trip in Spokane, in order to return to his employer provided hotel to begin work the next morning. He fled away from his vehicle, eastward back along his direct business route, for about thirty yards in his attempt to evade his attackers, but was caught and brutally beaten and kicked." The plaintiff further argues: "At the time of his attack, he was in the direct route of his business travel, in the alley serving both the restaurant where his business meeting had occurred and the second restaurant where he had gone with fellow employees to socialize following the business meeting." Additionally, the plaintiff argues that the facts of the present case are similar to the facts at issue in prior decisions in which our Supreme Court determined that claimants were entitled to workers' compensation benefits after they deviated from a business purpose but sustained injury after they later had returned to business activities. See, e.g., Carroll v. Westport Sanitarium , 131 Conn. 334, 339, 39 A.2d 892 (1944) ; Ohmen v. Adams Bros ., 109 Conn. 378, 385-86, 146 A. 825 (1929) ; and Carter v. Rowe , 92 Conn. 82, 85, 101 A. 491 (1917). The plaintiff argues that "[w]hether or not [he] was on the direct business route back to his rental car and hotel was . a key finding of subordinate fact which the commissioner should have made in order properly to apply the law to the facts." Thus, the plaintiff urges us to conclude that the commissioner and the board improperly applied the governing legal principles to the facts of the present case. Furthermore, he urges us to conclude that, in light of the undisputed facts that appear in the record, the commissioner and the board erred in concluding that the injury was not compensable. "The principles that govern our standard of review in workers' compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them . Neither the . board nor this court has the power to retry facts . "The standard of review to be used by the board when reviewing a commissioner's findings is set forth in Regulations of Connecticut State Agencies § 31-301-8.1 That section directs the board not to retry the case before it, but to determine whether evidence supports the commissioner's finding . [T]he . [board's] hearing of an appeal from the commissioner is not a de novo hearing of the facts . [I]t is oblig[ated] to hear the appeal on the record and not retry the facts . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts . [T]he conclusions drawn by [him] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them." (Citations omitted; footnote omitted; internal quotation marks omitted.) Sellers v. Sellers Garage, Inc ., 92 Conn. App. 650, 650-51, 887 A.2d 382 (2005). "It is an axiom of [workers'] compensation law that awards are determined by a two-part test. The [claimant] has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment. There must be a conjunction of [these] two requirements . to permit compensation . An injury is said to arise out of the employment when (a) it occurs in the course of the employment and (b) [it] is the result of a risk involved in the employment or incident to it or to the conditions under which it was required to be performed . [C]ases have held that an injury [occurs] in the course of the employment when it takes place (a) within the period of the employment, (b) at a place where the employee may reasonably be and (c) while he is reasonably fulfilling the duties of the employment or doing something incidental to it . There must be a conjunction of [these] two requirements [of the test] . to permit compensation . The former requirement [of arising out of the employment] relates to the origin and cause of the accident, while the latter requirement [of occurring in the course of employment] relates to the time, place and [circumstance] of the accident . Whether an injury arose out of and in the course of employment is a question of fact to be determined by the commissioner . If supported by competent evidence and not inconsistent with the law, the commissioner's inference that an injury did or did not arise out of and in the course of employment is, thus, conclusive." (Internal quotation marks omitted.) Mleczko v. Haynes Construction Co ., 111 Conn. App. 744, 748-49, 960 A.2d 582 (2008). The plaintiff does not make any significant attempt to undermine the commissioner's determination that, between 8 p.m. and midnight, he was no longer at a place he reasonably may have been expected to be in the course of his employment and he was no longer fulfilling the duties of his employment or doing something incidental to his employment. Although the plaintiff attempts to depict his conduct between 8 p.m. and midnight in an employment related light by characterizing it as "[a] period of personal socialization with his fellow employees," he nonetheless acknowledges that "there was sufficient evidence for the . commissioner here to have found that there was a substantial deviation from the original business purpose (attending a business function at Fast Eddie's .) that caused [him] to leave his hotel and drive to the parking lot adjacent to the scene of the assault." Indeed, the weight of the evidence reflects that, after 8 p.m., the defendant was no longer supporting financially any type of social gathering involving the plaintiff and the defendant's business interests were no longer being discussed by the plaintiff. During the course of the evening, the plaintiff became highly intoxicated and engaged in conduct that led to his reprimand by the defendant. Moreover, the evidence suggests that, during the latter part of the evening, the plaintiff, due to alcohol consumption, lacked the capacity to engage in any type of productive work related pursuits. The plaintiff may have continued to socialize with some of his coworkers after 8 p.m., but that fact is not dispositive with respect to the issue of whether he was acting in the course of his employment. This is not a close issue; the evidence amply supports the commissioner's determination that for several hours, between 8 p.m. and midnight, the plaintiff was engaged in a substantial deviation from his employment activities. Cf. McMorris v. New Haven Police Dept ., 156 Conn. App. 822, 833, 115 A.3d 491 ("[a]t the time he was injured, the plaintiff was where he would have been expected to be in the course of his employment as a police officer" and his deviation from his normal route to work "was so inconsequential relative to his job duties, which includes driving into work, that it did not remove him from the course and scope of his employment" [internal quotation marks omitted] ), cert. denied, 317 Conn. 911, 115 A.3d 1106 (2015) ; Kish v. Nursing & Home Care, Inc ., 248 Conn. 379, 391, 727 A.2d 1253 (1999) ("plaintiff's decision to momentarily [stop] to mail a personal card was so inconsequential . so as to not remove her from acting in the course and scope of her employment" [internal quotation marks omitted] ). We now turn to the plaintiff's primary contention in this appeal, namely, that "the uncontradicted evidence clearly and unequivocally demonstrates" that, following his personal deviation from work related activities between 8 p.m. and midnight, he resumed his business activities and sustained injury while on his direct business route of travel. Specifically, the plaintiff argues that the police reports and crime scene photographs reflect that he was assaulted in an alley between the building that housed Fast Eddie's and the building that housed Borracho. The alley is connected to a rear parking area. It suffices to observe that the evidence on which the plaintiff relies in support of this claim demonstrates the location at which the assault occurred. There is no dispute as to this fact. The police reports and crime scene photographs, however, are far from dispositive with respect to the issue of whether the plaintiff was at that precise location at the time of the assault because, as he argues presently, he was returning to his rental automobile in order to return to his hotel. It is plausible that the plaintiff was in the parking lot or the alley near Borracho for any number of reasons that were unrelated to his returning to his automobile or his returning to his hotel. For instance, he may have exited Borracho merely to make a telephone call or to engage in a private conversation with a third party outside of the restaurant. He may have been in the area because he was asked to leave Borracho and, perhaps, was headed to another bar. The plaintiff's mere presence at the scene of the attack in and of itself does not demonstrate, as the plaintiff suggests, that he had completed his deviation and had resumed his business travel. "The determinative question is whether the plaintiff, at the time of [his] injury, was engaged in the line of [his] duty in the business affairs of [his] employer." Luddie v. Foremost Ins. Co. , 5 Conn. App. 193, 196, 497 A.2d 435 (1985). We reiterate that "the claimant in a workers' compensation case bears the burden of proving that the employee's employment proximately caused the claimed injury." DiNuzzo v. Dan Perkins Chevrolet GEO, Inc ., 294 Conn. 132, 147 n.11, 982 A.2d 157 (2009). In our careful review of the record, we observe that the only other relevant evidence before the commissioner with respect to this narrow factual issue, i.e., whether the plaintiff had returned to his direct business route of travel, came in the form of the hearing testimony of the plaintiff, as well as deposition testimony of Johnson. At the hearing, the plaintiff testified that he had "very little memory" of the events of June 11, 2014 through "almost August" of 2014. He described his recollection of relevant events from the evening in question as being "spotty." Nonetheless, he testified that the alley in which he was assaulted was the fastest route between Borracho and his automobile that was in the parking lot behind the restaurants. He testified that he "was told" by one or more other persons that the assault occurred while he was walking back to his automobile. The plaintiff testified that he did not know or could not recall if he had planned on driving back to his hotel after leaving Borracho. He testified: "I was going towards the car. I don't know if, as we were walking, if we had discussions about whether or not we would drive home." Johnson testified that he and the plaintiff made a decision to leave Borracho together, that they utilized the alley that led to the parking lot behind Fast Eddie's, and that they were "headed to [their] vehicles" that were parked in the parking lot when the assault occurred. Even if we were to view the testimony of the plaintiff and Johnson as dispositive evidence with respect to the issue of whether, at the time of the assault, the plaintiff was returning to his automobile for the purpose of returning to his hotel and, thus, as evidence that he was assaulted while on the direct business route of travel, the plaintiff is unable to rely on his testimony or Johnson's testimony in support of his claim. In his findings, the commissioner expressly stated in relevant part: "I find the [plaintiff] was candid and that his testimony was credible [with respect to] the reason for the trip to Spokane and the occurrences during the early part of the evening at Fast Eddie's. I find the [plaintiff] not credible concerning what occurred in the latter portion of the evening at Fast Eddie's and at Borracho because his head trauma and inability to remember much of the evening renders the testimony unreliable." Moreover, the commissioner stated: "I find the testimony of . Johnson not to be credible." The plaintiff has not demonstrated that the factual findings that resulted from the commissioner's credibility determinations were unreasonable. We reiterate that "[i]t is within the discretion of the commissioner alone to determine the credibility of witnesses and the weighing of the evidence." Ayna v. Graebel/CT Movers, Inc. , 133 Conn. App. 65, 71, 33 A.3d 832, cert. denied, 304 Conn. 905, 38 A.3d 1201 (2012). It appears that the commissioner did not make any express finding with respect to whether the plaintiff sustained a compensable injury while on the direct business route of travel because the plaintiff failed to present any persuasive evidence in support of that theory of recovery. In light of the foregoing, we conclude that the plaintiff has not demonstrated that either the commissioner or the board misapplied the law in evaluating the claim for workers' compensation benefits. The decision of the Compensation Review Board is affirmed. In this opinion the other judges concurred. The plaintiff's statement of the issues sets forth two distinct issues. The first issue, which we resolve in this opinion, is whether the commissioner erroneously failed to make a factual finding with respect to whether the plaintiff was on the direct route of his business travel at the time he sustained the injury at issue and, in light of that error on the part of the commissioner, whether the board erroneously affirmed the commissioner's dismissal of his claim for benefits. The second issue is whether the board erroneously "failed to find" that he was on the direct route of his business travel at the time he sustained the injury at issue. Setting aside the fact that the plaintiff's second claim is legally untenable on its face, as the board is not a trier of fact, we observe that the plaintiff has failed to set forth an independent analysis of the second claim in his brief. Accordingly, we deem the second claim to be abandoned. See, e.g., Tonghini v. Tonghini , 152 Conn. App. 231, 239, 98 A.3d 93 (2014) (assignments of error not briefed beyond statement of claim will be deemed abandoned and not reviewed by this court). Sedgwick Claims Management Services, Inc., which is identified in the record as the defendant's workers' compensation insurer, also is named as a defendant in this action. For ease of reference, references to the defendant are to Pitney Bowes, Inc. Following the events of June 11, 2014, the defendant reprimanded the plaintiff for both sexual harassment and excessive alcohol consumption. Johnson sustained physical injuries as well. As the plaintiff correctly observes, the commissioner did not find that the injuries for which he sought workers' compensation benefits "were caused by his misconduct, intoxication, or by his participation in a social or recreational event; nor was there testimony or other evidence in the record to support such a finding." Neither the commissioner nor the board relied on these theories in determining that the claim should be dismissed. Consistent with his appellate argument, the plaintiff, in his proposed findings submitted to the commissioner, asked the commissioner to find that, at the time of the assault, he and Johnson were "in the parking lot behind Fast Eddie's and planning on heading to their hotels and homes, respectively." The plaintiff also asked the commissioner to find that "[t]he [plaintiff] was heading back to his rental car which was furnished to him by [the defendant] when he was attacked by unknown assailants" and "in a place he was reasonably expected to be." In the plaintiff's motion to correct the commissioner's finding and dismissal, he asked the commissioner to find that at the time of the assault, "[t]he plaintiff was in a place that he was reasonably expected to be, to wit, in the parking lot where he parked to go to Fast Eddie's for business entertainment that was not only condoned but also encouraged by his employer. He was heading toward his vehicle with . Johnson with the intent of returning back to the hotel (which was all paid for by [the defendant] )." The court denied this ground set forth in the motion to correct. The plaintiff, correctly referring to the principle that Connecticut has established a no-fault workers' compensation system that imposes a form of strict liability on employers; see, e.g., Sapko v. State , 305 Conn. 360, 377, 44 A.3d 827 (2012) ; urges this court not to focus solely on the issue of whether a work related injury occurred and not to consider whether his conduct at the time of the injury was socially proper or moral. Thus, the plaintiff argues that "in the present case [his] intoxication and reportedly offensive behavior are irrelevant: there is no evidence in the record nor finding of fact below to suggest that the injuries [he] sustained in this assault were due to his intoxication or wilful misconduct ." In affirming the decision of the commissioner, the board aptly observed on the basis of the evidence presented that the plaintiff had made comments that were "inappropriate and offensive" during the events at issue. The board then stated: "We presume that this testimony was offered so as to support an inference as to the [plaintiff's] intoxication level and that the nature of discussions was not in furtherance of the [defendant's] business. If the purpose of the testimony was to cast the character of the [plaintiff] in a bad light, we remind all that workers' compensation is a no-fault remedy. The character of a claimant neither assures nor bars entitlement to the remedy." This court fully agrees with the board's succinct explanation in this regard and, likewise, has evaluated the plaintiff's conduct solely for the purpose of evaluating whether he is entitled to benefits according to law. We observe that, although the plaintiff argues that the evidence demonstrated that he was attacked while on the direct business route of travel between Fast Eddie's and his automobile , the evidence on which the plaintiff relies, which includes, but is not limited to, his own testimony, demonstrates that he was attacked after exiting Borracho, not Fast Eddie's. As the plaintiff recognizes, Borracho and Fast Eddie's are distinct businesses, and although Borracho is located near Fast Eddie's, they are located in separate buildings that are separated by an alley.

12510724

STATE of Connecticut v. Albert Edward NALEWAJK

State v. Nalewajk

2019-06-11

AC 39195

122

124

211 A.3d 122

211

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:58:01.966564+00:00

Fastcase

STATE of Connecticut v. Albert Edward NALEWAJK

STATE of Connecticut v. Albert Edward NALEWAJK AC 39195 Appellate Court of Connecticut. Argued March 6, 2019 Officially released June 11, 2019 Daniel M. Erwin, Bethany, assigned counsel, for the appellant (defendant). Rocco A. Chiarenza, assistant state's attorney, for the appellee (state). Alvord, Keller, Elgo, Bright and Moll, Js.

894

5472

PER CURIAM. This opinion follows oral argument on this court's own motion to determine whether the present appeal should be dismissed as moot because the defendant, Albert Edward Nalewajk, died during the pendency of his appeal from the dismissal of his motion to correct an illegal sentence. We conclude that we lack subject matter jurisdiction and, accordingly, dismiss the appeal. The relevant facts are not disputed. The defendant pleaded guilty to the charges of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes (Rev. to 2009) § 21a-278 (b) and failure to appear in the first degree in violation of General Statutes (Rev. to 2009) § 53a-172, and the court imposed a total effective sentence of ten years of incarceration, execution suspended after five years, followed by five years of probation. The defendant subsequently filed a motion to correct an illegal sentence, which the trial court dismissed. On May 10, 2016, the defendant filed this appeal from the court's dismissal of his motion to correct an illegal sentence. The appeal was stayed pending our Supreme Court's decisions in State v. Allan , 329 Conn. 815, 190 A.3d 874 (2018), cert. denied, - U.S. -, 139 S. Ct. 1233, 203 L. Ed. 2d 247 (2019), and State v. Evans , 329 Conn. 770, 189 A.3d 1184 (2018), cert. denied, - U.S. -, 139 S. Ct. 1304, 203 L. Ed. 2d 425 (2019). On November 16, 2018, this court lifted the appellate stay and ordered the parties to submit memoranda on or before December 17, 2018, addressing the impact of those decisions. The case was marked ready for argument on December 17, 2018. Defense counsel thereafter notified this court, by letter dated January 3, 2019, that the defendant had died and that a formal suggestion of death would follow. On February 6, 2019, defense counsel filed a suggestion of death, accompanied by a copy of the defendant's death certificate. Although defense counsel in that filing acknowledged that "the issues presented in this appeal from a motion to correct an illegal sentence are likely moot" in light of the defendant's passing, counsel did not withdraw the appeal. In response, this court ordered the parties "to appear and give reasons, if any, why this appeal should not be dismissed as moot because the defendant has died. See State v. Bostwick , 251 Conn. 117, [740 A.2d 381] (1999) ; State v. Trantolo , 209 Conn. 169, [549 A.2d 1074] (1988)." We heard argument from the parties on March 6, 2019. It is well established that "[m]ootness implicates [this] court's subject matter jurisdiction and is thus a threshold matter for us to resolve." (Internal quotation marks omitted.) Burbank v. Board of Education , 299 Conn. 833, 839, 11 A.3d 658 (2011). "When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.... [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow." (Citation omitted; internal quotation marks omitted.) State v. Bostwick , supra, 251 Conn. at 118-19, 740 A.2d 381. In State v. Bostwick , supra, 251 Conn. at 119, 740 A.2d 381, State v. Corbeil , 237 Conn. 919, 920, 676 A.2d 1374 (1996), and State v. Trantolo , supra, 209 Conn. at 171, 549 A.2d 1074, our Supreme Court dismissed the respective criminal appeals as moot because the defendants had died during the pendency of those appeals. In the present case, the defendant's death undoubtedly makes any claim regarding the legality of the sentence he was serving moot because there is no practical relief that we can afford the defendant through resolution of this appeal. In fact, we do not understand why counsel did not withdraw this appeal upon the defendant's death. Practice Book § 63-9 permits the filing of a withdrawal of an appeal prior to oral argument as of right. We therefore disagree with the suggestion made at oral argument by defense counsel that counsel was precluded from withdrawing the appeal because the defendant could not communicate whether he wished to withdraw his appeal in light of his death. Although rule 1.4 of the Rules of Professional Conduct provides that a lawyer is obligated to communicate with his or her client, and states in subsection (b) that a lawyer "shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation," the death of a client challenging the legality of his sentence necessarily ends the lawyer's obligation under the rule. Furthermore, we believe that a withdrawal of the appeal pursuant to Practice Book § 63-9 would have been much more consistent with counsel's obligations under rules 3.1 and 3.2 of the Rules of Professional Conduct, in that it would have conserved the resources expended by the state on what was an unnecessary hearing. The appeal is dismissed.

12489147

David HECK v. COMMISSIONER OF CORRECTION

Heck v. Comm'r of Corr.

2016-11-17

AC 38246

298

305

155 A.3d 298

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

DiPentima, C.J., and Keller and Bear, Js.

David HECK v. COMMISSIONER OF CORRECTION

David HECK v. COMMISSIONER OF CORRECTION AC 38246 Appellate Court of Connecticut. Submitted on briefs November 17, 2016 Officially released February 7, 2017 Walter C. Bansley IV filed a brief, New Haven, for the appellant (petitioner). Gail P. Hardy, state's attorney, Sarah Hanna, assistant state's attorney, and Lisa Maria Proscino, former special deputy assistant state's attorney, filed a brief for the appellee (respondent). DiPentima, C.J., and Keller and Bear, Js.

3614

22814

PER CURIAM. The petitioner, David Heck, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly concluded that counsel who represented him in two criminal trials involving town hall burglaries provided ineffective assistance. We affirm the judgment of the habeas court. On June 25, 2009, in connection with a burglary of the Suffield town hall, in Docket No. CR-08-0148136-S (Enfield case), a jury found the petitioner guilty of burglary in the third degree in violation of General Statutes § 53a-103 (a), criminal mischief in the first degree in violation of General Statutes § 53a-115 (a) (5), and larceny in the second degree in violation of General Statutes § 53a-123 (a) (2). The court, Dubay, J. , sentenced the petitioner to a total effective term of ten years incarceration, suspended after nine years, with five years of probation. On November 18, 2010, in connection with a burglary of the Ashford town hall, in Docket No. CR-08-0136011-S (Danielson case), a jury found the petitioner guilty of burglary in the third degree in violation of § 53a-103 (a), criminal mischief in the first degree in violation of § 53a-115 (a) (5), and attempt to commit larceny in the sixth degree in violation of General Statutes § 53a-49 and 53a-125b. The court, Swords, J ., sentenced the petitioner to a total effective term of seven years and three months incarceration, followed by three years of special parole, consecutive to his sentence in the Enfield case. On direct appeal, this court affirmed the petitioner's conviction in the Enfield case. State v. Heck , 128 Conn.App. 633, 635, 18 A.3d 673, cert. denied, 301 Conn. 935, 23 A.3d 728 (2011). The petitioner did not appeal from the judgment of conviction in the Danielson case. On December 16, 2014, the petitioner filed an amended petition for a writ of habeas corpus. Relevant to the present appeal, in count one, the petitioner alleged ineffective assistance of trial counsel, Jean-Paul Garcia Lewis, in connection with his convictions in both the Enfield and Danielson cases. He alleged that trial counsel had been ineffective in failing to move to suppress certain evidence, namely, a global positioning system (GPS) device, that had been seized from a vehicle that the defendant was using at the time that he was arrested by police in Hillsborough, New Hampshire, for having burglarized the town hall in that municipality, and in failing to alert the trial court that a New Hampshire court had ordered that the GPS device be returned to him. The GPS device was transferred to the state's attorneys in Enfield and Danielson, and the state utilized it in the presence of the jury during both of the petitioner's criminal trials. Because the GPS device reflected that the Hillsborough, Suffield, and Ashford town halls were among several addresses that recently had been accessed on it, the state used information stored on the GPS device as evidence that the petitioner was implicated in the burglaries of the Suffield and Ashford town halls. In characterizing the nature of the defendant's claim, the habeas court aptly stated that, although trial counsel unsuccessfully had moved to suppress the GPS device on the ground that it had been illegally seized, the petitioner claimed that counsel "was professionally deficient for failing to include as an alternative ground for exclusion the purportedly illegal transfer of the GPS device to Connecticut despite the assumed lawfulness of the seizure of the [GPS device] by New Hampshire police." More precisely, the petitioner criticized the performance of trial counsel in failing to argue that the physical transfer of the GPS device to Connecticut and its subsequent use at his two trials were constitutionally impermissible because once the petitioner's burglary case in New Hampshire was annulled under New Hampshire law sometime after November 12, 2008, any police and court records contained in his case were not disclosable to the public, including Connecticut law enforcement officials. The petitioner argued that he was prejudiced by the use of the GPS device at both trials. Following a trial held on March 17, 2015, the habeas court, Sferrazza, J. , denied the petition for a writ of habeas corpus. Judge Sferrazza subsequently granted the petition for certification to appeal. In setting forth its findings of fact, the habeas court adopted the summary of facts underlying the Enfield case that were set forth by this court in State v. Heck , supra, 128 Conn.App. at 635-37, 18 A.3d 673. In relevant part, those facts are as follows: "During the overnight hours of August 29, 2007, a burglary was committed at the town hall in Suffield.... The burglar entered the building, which did not have an alarm system, through a basement storm window that had been pried off its track and dislodged. Once inside, the perpetrator broke open the door to the tax office, pried open the cash register and safe, and left with both cash and checks. During the burglary, the perpetrator rifled through various cabinets, desks and papers in the office, causing considerable property damage . "On September 7, 2007, Christopher Burns, a detective with the Connecticut state police, received a telephone call from police officers in Hillsborough, New Hampshire, stating that they had apprehended the [petitioner] for the burglary of two town halls in New Hampshire. At around 4 a.m. that morning, police in Hillsborough had received a telephone call concerning the [petitioner's] rented pickup truck, which was parked in a driveway . in Hillsborough. David Roarick, a captain with the Hillsborough Police Department arrived at the scene two minutes later to investigate. As he approached, he saw a 2007 Dodge pickup truck with a Massachusetts license plate in the driveway with a person sitting in the passenger seat. He saw someone run from across the street toward the property where the truck was parked and then walk behind the house into a wooded area. Roarick called police dispatch, who reported that the truck was registered to Carmac, Inc. He then approached the vehicle and spoke to the passenger, Justin Douglas, who informed Roarick that the driver was visiting a friend nearby but that Douglas did not know the driver's name or where he had gone. Because Douglas' answers were evasive and Roarick believed that the truck may have been stolen, he asked Douglas to exit the vehicle. "After Douglas exited the vehicle, Roarick noticed a GPS device on the dashboard of the truck. In an attempt to determine the location of the missing driver, Roarick pressed the recent entry button on the [GPS] device to scroll through the recently entered addresses. Among the first addresses displayed were those of the Hillsborough and Windsor, New Hampshire town halls, which had been burglarized. He also found a driver's license and business card in the center console with the [petitioner's] name on it, although he did not know if they belonged to the driver of the vehicle.... Michael Martin, a Henniker, New Hampshire police officer, arrived on the scene and walked over to the Hillsborough town hall to investigate and determined that it had been burglarized. Eventually, Douglas provided to Roarick the number for the [petitioner's] cellular telephone. The [petitioner] failed to answer when Roarick called him from his own telephone, however, when Roarick called him using Douglas' telephone, the [petitioner] answered. Roarick informed the [petitioner] that he knew about the burglary at the Hillsborough town hall and that he should turn himself in to the police. The [petitioner] subsequently turned himself in and was placed under arrest. He admitted that he had burglarized the town halls in Hillsborough and Windsor because he had lost his house and was having financial difficulties." (Footnotes altered; internal quotation marks omitted.) The habeas court went on to find that, after Burns received the call from police officers in Hillsborough on September 7, 2007, he drove that day to New Hampshire. At that time, he "personally reviewed each of the many destinations entered into the [GPS] device, and he recorded the same in a written document at that time.... [T]he Suffield and Ashford town hall locations were among the destinations entered into the system previously." The habeas court indicated in its memorandum of decision that "in order to clarify the petitioner's claim of ineffective assistance, the following chronology is important.... [T]he New Hampshire police seized the [GPS device] on September 7, 2007, and the petitioner was arrested for a New Hampshire burglary shortly thereafter. Before his indictment in New Hampshire, the petitioner's defense counsel in that case, Attorney Robin Melone, filed a blanket motion for the return to the petitioner of all tangible items seized by the New Hampshire police. That motion never specifically referenced the [GPS device]. "On November 19, 2007, a New Hampshire court ordered the return of several other seized articles, which the petitioner retrieved, but not the [GPS device]. On June 19, 2008, Judge [Kathleen A. McGuire] granted a motion to exclude certain evidence against the petitioner but denied suppression of the [GPS device]. The New Hampshire prosecutor nolled the charges against the petitioner on June 19, 2008. "Because of the similarity of the alleged burglary in New Hampshire to certain burglaries in Connecticut and because of information garnered from the GPS device as to the travels of the petitioner's rented truck, on September 5, 2008, the state's attorney's offices for G.A. 13 and G.A. 11 requested that New Hampshire authorities temporarily transfer the [GPS device] to Connecticut law enforcement for possible prosecution of criminal charges for offenses committed in this state. On September 11, 2008, an assistant county attorney in New Hampshire moved for the New Hampshire court to approve the transfer. Attorney Melone opposed that request and, on November 12, 2008, moved to compel the return of the [GPS] device to the petitioner. "No evidence was adduced at the habeas hearing regarding any rulings by the New Hampshire court on these motions. However, the New Hampshire authorities did, in fact, transfer possession of the [GPS device] to the Connecticut prosecutors for use at the petitioner's criminal trials in this state." (Footnote added.) As stated previously, prior to the commencement of both trials, trial counsel unsuccessfully moved to suppress use of the GPS device on the basis of the allegedly illegal seizure of that item by the New Hampshire police. The petitioner alleges in the present habeas petition that trial counsel was deficient in failing to include as an alternative ground for exclusion the purportedly illegal transfer of the GPS device to Connecticut, despite the assumed lawfulness of its seizure by the New Hampshire police. The petitioner argues that the physical transfer of the GPS device to Connecticut and its subsequent use at his two trials were constitutionally impermissible because once the petitioner's burglary case in New Hampshire was annulled under New Hampshire law sometime after November 12, 2008, any police and court records contained in his case were not disclosable to the public, including to Connecticut law enforcement officials. Our standard of review is well established. "[T]he right to counsel is the right to the effective assistance of counsel.... There are two components of a claim of ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient.... Second, the [petitioner] must show that the deficient performance prejudiced the defense." (Citation omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction , 218 Conn. 403, 424, 589 A.2d 1214 (1991). "A failure to establish either prong will be fatal to a claim of ineffectiveness of counsel." Alterisi v. Commissioner of Correction , 145 Conn.App. 218, 223, 77 A.3d 748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013). "Judicial scrutiny of counsel's performance must be highly deferential.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction , 285 Conn. 556, 577, 941 A.2d 248 (2008). "The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous.... Historical facts constitute a recital of external events and the credibility of their narrators. So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense.... Whether the representation a [petitioner] received at trial was constitutionally inadequate is a mixed question of law and fact.... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard." (Internal quotation marks omitted.) Crawford v. Commissioner of Correction , 285 Conn. 585, 597-98, 940 A.2d 789 (2008). After thoroughly examining the record on appeal and the briefs and arguments of the parties, we agree with the habeas court that the petitioner's claim fails for several reasons. The petitioner was not prejudiced by trial counsel's failure to move to suppress on the basis of the transfer of the GPS device. This is because it was Burns' review of the contents of the GPS device's record of past destinations, rather than any physical attributes of the GPS device itself, that linked the petitioner to the burglaries of the Suffield and Ashford town halls. The incriminatory evidence related to the GPS device was admitted in the form of Burns' testimony. Burns testified at both criminal trials that in response to notification by law enforcement officials in New Hampshire of the GPS device entries involving Connecticut municipal building addresses, he traveled to Hillsborough, New Hampshire, on September 7, 2007, the same day the petitioner was arrested. When Burns arrived in Hillsborough, he personally reviewed each of the many destinations entered into the GPS device and recorded the same in a written document at that time. He testified that he recalled that the Suffield and Ashford town hall locations were among the destinations entered into the GPS device previously. This information was obtained before the petitioner requested the return of the GPS device and months before his New Hampshire arrest records were sealed by the New Hampshire court. Moreover, the seizure of the GPS device and search of its entries was held to be constitutionally valid by both the New Hampshire and Connecticut criminal courts, and consequently, the motions to suppress such information were denied. Therefore, Burns' testimony as to his observations and recording of that information on September 7, 2007, was admissible against the petitioner in Connecticut despite the eventual sealing of his New Hampshire file at a later date, as his testimony was based on personal knowledge and not based on his review of erased records. "[W]e have recognized the legitimacy of the distinction between testimony based on independent personal knowledge and testimony based on inadmissible records, permitting the former while barring the latter." State v. Morowitz , 200 Conn. 440, 450, 512 A.2d 175 (1986). An erasure "statute does not and cannot insulate [an individual] from the consequences of his prior actions ." (Emphasis in original.) Id., at 451, 512 A.2d 175 ; see also Rado v. Board of Education , 216 Conn. 541, 550, 583 A.2d 102 (1990) (erasure act not intended to obliterate memory). The petitioner has not demonstrated that Connecticut law enforcement and prosecutors would have been constrained by any New Hampshire court order or New Hampshire's annulment statute when investigating and pursuing a criminal case in Connecticut. Having acquired the inculpatory information from the GPS device lawfully under Connecticut law, Burns' testimony and his display of the device to the jurors was clearly proper. Even assuming some violation of the law by New Hampshire authorities, where the seizure and search of evidence satisfied the laws of the forum jurisdiction, Connecticut, it is not subject to exclusion based on a violation of the law by the procurement jurisdiction, New Hampshire. See State v. Boyd , 295 Conn. 707, 727-28, 992 A.2d 1071 (2010), cert. denied, 562 U.S. 1224, 131 S.Ct. 1474, 179 L.Ed.2d 314 (2011). The petitioner's claim is based on trial counsel's failure to move to exclude evidence obtained from the GPS device on the ground that New Hampshire authorities may have breached New Hampshire's annulment statute in relinquishing the GPS device to Connecticut law enforcement officials. The habeas court correctly concluded that this was not a legally viable ground. For purposes of the petitioner's fourth amendment claim, the material issue is whether the police and prosecutors in Connecticut violated applicable Connecticut law. See id. Because the petitioner has not set forth a legally viable ground on which to support a motion to suppress regarding the transfer of the GPS device, he has failed to demonstrate that trial counsel acted unreasonably in failing to file such a motion. As the petitioner failed to demonstrate that a motion to suppress contesting the transfer of the GPS device would have been successful, the habeas court determined that he failed to demonstrate prejudice related to the failure to move to suppress on this ground. Without such a showing, there was no reasonable probability that the result of his trial would have been different. In addition, proof of prejudice is lacking because the petitioner acknowledges that even if the GPS device would have been suppressed, none of Burns' damaging testimony would have been excluded concerning what his search of the petitioner's GPS device and documentation in New Hampshire revealed-namely, recent address entries that matched the locations of the town hall burglaries in Suffield and Ashford, as well as addresses for burglary locations in New Hampshire, two similar burglaries that the petitioner had admitted committing. Accordingly, because the petitioner has not demonstrated that he had a viable fourth amendment claim, the habeas court, in denying the petition, properly determined that the petitioner failed to meet his burden of proving that his trial counsel was ineffective in failing to raise such a claim challenging the transfer of the GPS device from New Hampshire to Connecticut. The judgment is affirmed. The petitioner alleged in count two of his amended petition that his right to be free from unreasonable searches and seizures as afforded by the federal and state constitutions was violated when Connecticut state officials "seized [his GPS device] from him in New Hampshire, without a warrant and in an unreasonable manner" and then "unreasonably seized and then improperly used [the GPS device] against him at his trial." In count three, the petitioner alleged that his due process rights were violated when Connecticut state officials "searched and seized [his GPS device] without a hearing or warrant" and "utilized [the GPS device] against him at trial, without property hearing or due process." Prior to trial, the habeas court dismissed the due process claims in the third count on the ground of procedural default, and, following trial, the habeas court denied the fourth amendment claim in the second count on the same ground. In the present appeal, the petitioner does not challenge these rulings. There was evidence that, pursuant to an agreement between the Hillsborough Police Department and the Suffield Police Department dated June 4, 2009, Detective Mark Sargent of the Suffield Police Department retrieved the GPS device before it was marked as an exhibit for identification in the Enfield case on June 25, 2009. The record reflects that the GPS device was not introduced as a full exhibit in either the Enfield or Danielson trials. During his direct examination by the state in both cases, however, Detective Christopher Burns of the Connecticut State Police utilized the GPS device in the presence of the jury to demonstrate the presence of the damning entries on it. This evidence was cumulative of Burns' personal recollection and written notes of his observations on September 7, 2007, in Hillsborough. The circumstantial evidence that the GPS device contained the petitioner's requests for directions to the Suffield and Ashford town halls at or about particular times and dates tended to prove his guilt at both trials. There was evidence that the burglary of the Windsor town hall was discovered by New Hampshire State Trooper Thomas Forsley after he learned that the address of the Windsor town hall was an entry on the GPS discovered in the truck. Similar evidence of the two New Hampshire burglaries was admitted in the Enfield and Danielson cases as uncharged misconduct. In the Enfield case, it was used to demonstrate the petitioner's intent, the identity of the person who committed the crime, a motive for the crime, a common plan or scheme, a system of criminal activity, and to corroborate crucial prosecution testimony. In the Danielson case, it was used to demonstrate the petitioner's intent, motive, common plan or scheme, and to corroborate crucial prosecution testimony. The habeas court noted that the petitioner secured an annulment of his arrest records following the nolle entered by the New Hampshire prosecutor sometime after November 12, 2008, and that an "annulment" under New Hampshire law is akin to Connecticut's statutory erasure procedure, embodied in General Statutes § 54-142a, in that an annulment imposes a duty of nondisclosure to the public of police and court records. At the request of the petitioner, Burns' documentation of the locations recorded on the GPS device was admitted as a full exhibit in the Danielson case.

12489138

STATE of Connecticut v. John William DAVIS, Jr.

State v. Davis

2017-03-14

SC 19511

221

233

155 A.3d 221

155

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

STATE of Connecticut v. John William DAVIS, Jr.

STATE of Connecticut v. John William DAVIS, Jr. SC 19511 Supreme Court of Connecticut. Argued November 15, 2016 Officially released March 14, 2017 Jonathan M. Sousa, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, former state's attorney, and Lisa D'Angelo, assistant state's attorney, for the appellant (state). Laila M. G. Haswell, senior assistant public defender, with whom, on the brief, was Lauren Weisfeld, chief of legal services, for the appellee (defendant). Rogers, C. J., and Palmer, McDonald, Espinosa and Robinson, Js.

6015

36383

ESPINOSA, J. In this certified appeal, the state appeals from the judgment of the Appellate Court, which reversed in part the judgment of the trial court convicting the defendant, John William Davis, Jr., of, inter alia, carrying a pistol without a permit in violation of General Statutes § 29-35 (a) and unlawful possession of a weapon in a vehicle in violation of General Statutes (Rev. to 2011) § 29-38 (a). State v. Davis , 156 Conn.App. 175, 195, 111 A.3d 567 (2015). The state contends that the Appellate Court improperly concluded that the evidence presented at trial was insufficient to support the defendant's conviction of those offenses because the state failed to offer direct evidence to prove that the defendant lacked a temporary state pistol permit issued by a town in the first instance. Id. at 180-81, 111 A.3d 567. We agree and, accordingly, reverse in part the judgment of the Appellate Court. The jury reasonably could have found the following facts. On July 24, 2011, while assisting another officer during a motor vehicle stop on Poplar Street in New Haven, Officer Juan Ingles of the New Haven Police Department observed a grey Nissan traveling down the street with no front license plate in violation of General Statutes § 14-18. As the Nissan approached his position, Ingles also observed that the Nissan had two occupants: a driver, who was later identified as the defendant, and a passenger. Ingles observed that the defendant was not wearing a seat belt. After noticing the two violations, Ingles decided to initiate a motor vehicle stop and backed his patrol car into a driveway in order to position himself to view the number on the rear license plate of the Nissan. Ingles entered the license plate number into his patrol car's mobile data terminal and discovered that the plate was registered to a vehicle of a different make and model. Ingles then pulled his patrol car behind the Nissan and activated his emergency lights in order to conduct a motor vehicle stop. The defendant did not immediately stop the vehicle and proceeded to drive for a number of blocks before pulling the Nissan over. Once the Nissan stopped, Ingles, suspecting that the occupants might flee, remained in his patrol car but opened and slammed shut the door to his patrol car so that the occupants might believe that he was out of his vehicle. After the door was slammed shut, the defendant, still operating the Nissan, fled. Ingles pursued the Nissan, and the defendant led him on a high speed chase through New Haven. The defendant drove through red lights, drove on the wrong side of the road, and failed to yield to traffic. The defendant eventually entered the highway, Interstate 91, and traveled for a distance before exiting via an entrance ramp-traveling the wrong way. With more patrol cars joining Ingles in the pursuit, the defendant drove onto sidewalks, over lawns, and directly toward at least one patrol car, whose operator narrowly avoided the collision by leaving the road. When the Nissan struck a curb and became immobilized, the defendant and his passenger exited the vehicle and fled on foot. Ingles pursued the defendant on foot and observed that immediately upon exiting the Nissan and intermittently throughout the pursuit, the defendant held the waistband of his pants. Another officer pursued the passenger. The defendant ran toward the rear of a nearby restaurant and scaled a dumpster, where Ingles observed the defendant reach into his waistband, withdraw a black handgun, raise it above his head, and throw it into the dumpster. The defendant jumped off the dumpster and ran through a busy intersection onto residential properties. After running through a number of yards, the defendant attempted to jump a fence, but was blocked by debris, causing him to be cornered by Ingles and other police officers. The defendant again attempted to flee, did not comply with the officers' orders, and continued holding his waistband, which prompted Ingles to use a Taser on the defendant twice. As Ingles and the other officers attempted to lift the defendant to his feet, he attempted to bite Ingles, causing Ingles to use his Taser a third time. Ingles used his Taser on the defendant a fourth time after the defendant pushed him. Once the defendant was subdued, Ingles identified the defendant by a Connecticut identification card found on his person. A police canine unit trained in evidence recovery was brought to the dumpster where Ingles had observed the defendant discarding the handgun. After the police dog alerted to the dumpster, the officers searched and discovered a Smith & Wesson, Model SW 40F, .40 caliber handgun, which matched the description of the gun that Ingles had observed the defendant remove from his waistband and discard in the dumpster. The handgun, which was loaded and had a round in the chamber, was later transported to the forensic science laboratory of the Department of Emergency Services and Public Protection (department), where James Stephenson, a member of the firearm and tool mark section, determined that it was fully operable and had a partially obliterated serial number. Stephenson determined that the serial number had been damaged intentionally. Utilizing an undamaged bar code on the gun, Stephenson ascertained its serial number. After searching for that serial number in the NCIC database, Stephenson discovered that the gun had been stolen in Hamden. Ingles also testified that after the firearm was recovered, he determined that the defendant was lawfully unable to carry a firearm. The defendant was arrested and charged with criminal possession of a firearm in violation of General Statutes (Rev. to 2011) § 53a-217 (a) (1), carrying a pistol without a permit in violation of § 29-35 (a), altering a firearm identification mark in violation of General Statutes (Rev. to 2011) § 29-36, unlawfully carrying a weapon in a vehicle in violation of § 29-38, criminal attempt to assault a police officer in violation of General Statutes § 53a-49 (a) (2), reckless endangerment in the first degree in violation of General Statutes § 53a-63, interfering with an officer in violation of General Statutes § 53a-167a, and reckless driving in violation of General Statutes § 14-222. The defendant pleaded not guilty to all charges and elected a trial to the court on the charge of criminal possession of a firearm, and a jury trial on all other charges. During the jury trial, Detective Vincent Imbimbo of the firearms licensing unit of the department testified that he determined that the defendant did not possess a valid state pistol permit. He briefly described the permitting process: "[O]nce you get your temporary permit from the town you come to the state and get your state permit.... We have databases and everyone that has a pistol registered, a pistol permit, a gun registered, security guards, we have everyone in one database." On redirect examination, Imbimbo clarified the permitting process, noting that applicants must first apply to their local police department for a temporary state pistol permit, which is valid for sixty days. Imbimbo explained that if the local authority, after conducting a background investigation, grants a temporary pistol permit, the application "comes up to" the department, which runs further background investigations before issuing a renewable state pistol permit. Imbimbo testified that he conducted a search of the state database-which he agreed was an "accurate representation of those citizens who possess a valid pistol permit"-using the defendant's name and date of birth. Imbimbo determined that according to the database, the defendant never possessed a state pistol permit. On cross-examination, defense counsel inquired as to whether Imbimbo's research included both temporary state pistol permits issued by local authorities and renewable state pistol permits. The following colloquy between defense counsel and Imbimbo ensued: "Q.... So is it possible that there would be a town permit issued separate and distinct from the state permit which would be issued after one had obtained a town permit? "A. Correct. "Q. So, indeed, [the defendant] may have in fact possessed a town permit and never in fact went to the next step to evolve to a state level; is that correct? "A. Right. If he did have a temporary permit from the town it would be valid for [sixty] days from the issuance from the town. "Q.... And did you check the possibility of him having a town permit? "A. I cannot check the possibility of him having a town permit. . "Q. So there is a possibility that at one point, perhaps even at this point during the time in question that he may have in fact possessed a valid town permit? "A. Possibility , yes. If it never came to our office to get a valid state permit it's a possibility ." (Emphasis added.) Officer Manmeet Colon of the firearms unit of the New Haven Police Department also testified for the state regarding the defendant's lack of a pistol permit. Colon stated that he checked the files of the New Haven Police Department, which issues temporary state pistol permits for residents of New Haven, and verified that there were no temporary state pistol permits for anyone with the defendant's name or date of birth in New Haven at the time of the arrest. Colon also testified that a search of the state firearms log-which would note permits issued by the state-yielded no results for the defendant's name. On cross-examination, Colon stated that although his search of the state firearms log displays pistol permit information from throughout the state, he would be unable to ascertain from this search whether the defendant had a temporary state permit issued by any municipality other than New Haven. The jury found the defendant guilty of all charges except altering a firearm identification mark and criminal attempt to assault a police officer and the court found the defendant guilty of criminal possession of a firearm. As to the charge of criminal possession of a firearm, the defendant stipulated that he previously had been convicted of a felony, but the trial court excluded that evidence from the jury trial to avoid potential prejudice to the defendant. The court rendered judgment in accordance with the verdict and the finding, and sentenced the defendant to a total effective term of twelve years of incarceration, execution suspended after nine years, and three years of probation. The defendant appealed to the Appellate Court, which reversed the judgment of the trial court in part and affirmed it in part. State v. Davis , supra, 156 Conn.App. at 195, 111 A.3d 567. The Appellate Court held that the evidence was insufficient to sustain the defendant's conviction of carrying a pistol without a permit and unlawful possession of a weapon in a vehicle because the state failed to prove beyond a reasonable doubt that the defendant did not possess a valid pistol permit, which is an element of both crimes. Id. at 180-81, 111 A.3d 567. Specifically, the Appellate Court determined that the state presented insufficient evidence that the defendant lacked a temporary state permit because the state did not prove that he resided or owned a business in New Haven. Id. at 188-89, 111 A.3d 567. The Appellate Court also held that the jury could not infer that the defendant did not possess a permit from evidence of the defendant's flight from the police because consciousness of guilt evidence cannot be relied on to prove a required substantive element of a crime. Id. at 189, 111 A.3d 567. Lastly, the Appellate Court rejected the state's argument that Imbimbo's testimony alone, without a jury instruction on the permitting process pursuant to General Statutes (Rev. to 2011) § 29-28 (b), was sufficient to establish that applications for temporary state pistol permits must be forwarded to the state for further review and therefore would be discovered in a search of those records. Id. at 189-91, 111 A.3d 567. This appeal by the state, following our grant of certification, followed. State v. Davis , 317 Conn. 921, 118 A.3d 62 (2015). The state claims that the Appellate Court erred in reversing the defendant's conviction of carrying a pistol without a permit and unlawful possession of a weapon in a vehicle because the evidence was sufficient to prove that the defendant did not lawfully possess a valid pistol permit. Specifically, the state contends that the Appellate Court's decision was based on an improper application of the sufficiency of the evidence standard because it focused its analysis on the absence of direct evidence rather than the cumulative effect of both direct and circumstantial evidence to prove this element of the offenses. The defendant counters that the state failed to present evidence sufficient for the jury to find beyond a reasonable doubt that the defendant did not possess a pistol permit because it did not present evidence that the defendant was a resident of New Haven or lacked a temporary permit from any other town in the state, and the evidence did not establish that records of temporary pistol permits are automatically forwarded to the state. As an alternative ground for affirmance, the defendant claims that the state did not present sufficient evidence to prove the charge of unlawful possession of a weapon in a vehicle because it did not present evidence that the other occupant of the Nissan lacked a pistol permit. We conclude that the state presented sufficient evidence to establish beyond a reasonable doubt that the defendant did not possess a state pistol permit and we reject the defendant's alternative grounds for affirming the judgment of the Appellate Court. Accordingly, we reverse in part the judgment of the Appellate Court. "The standard of review we apply to a claim of insufficient evidence is well established. 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 [finder of fact] 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 whether the 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 [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... "Finally, [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 [finder of fact], 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 [finder of fact's] verdict of guilty." (Internal quotation marks omitted.) State v. Ledbetter , 275 Conn. 534, 542-43, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 (2006). We first examine the elements of the offenses at issue. To establish that a defendant is guilty of carrying a pistol without a permit in violation of § 29-35 (a), the state must prove that the defendant: (1) carried a pistol or revolver upon his or her person; (2) did so without the proper permit; and (3) was not within his or her dwelling house or place of business. See State v. Knight , 266 Conn. 658, 667, 835 A.2d 47 (2003). In a prosecution of unlawful possession of a weapon in a vehicle in violation of § 29-38 (a), the state must prove that the defendant: (1) owned, operated or occupied the vehicle; (2) had a weapon in the vehicle; (3) knew the weapon was in the vehicle; and (4) had no permit or registration for the weapon. See State v. Delossantos , 211 Conn. 258, 273, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S.Ct. 188, 107 L.Ed.2d 142 (1989). Both § 29-35 and 29-38 require the state to prove beyond a reasonable doubt that a defendant did not possess a pistol permit at the time of the offense. The permitting process and qualifications for obtaining a pistol permit are codified in General Statutes (Rev. to 2011) § 29-28 and incorporated by reference into § 29-35 and 29-38. Specifically, General Statutes (Rev. to 2011) § 29-28 (b) sets forth a two step process for obtaining a pistol permit. An applicant must first submit an application for a temporary state pistol permit to the municipality where he or she resides or owns a business. General Statutes (Rev. to 2011) § 29-28 (b). If the applicant is not disqualified for any of the reasons enumerated in General Statutes (Rev. to 2011) § 29-28 (b) (1) through (10)-such as for a prior felony conviction-the local authority issues a nonrenewable temporary state pistol permit valid for sixty days. See General Statutes § 29-30 (c). Next, once the temporary state pistol permit is issued, the local authority is required to forward the application to the state licensing authority; General Statutes (Rev. to 2011) § 29-28 (b); which subsequently issues a renewable state pistol permit valid for five years. See General Statutes § 29-30 (c). In the present case, when construing the evidence in the light most favorable to sustaining the guilty verdict, the cumulative impact of the evidence presented at trial reasonably and logically supported the jury's conclusion that the defendant was guilty beyond a reasonable doubt of carrying a pistol without a permit and unlawful possession of a weapon in a vehicle. From the testimony of Ingles, Stephenson, Imbimbo, and Colon, along with the reasonable and logical inferences to be drawn from that testimony, the jury reasonably could have concluded that the defendant did not possess a valid pistol permit. Imbimbo testified that the defendant did not possess a renewable state issued pistol permit because his name and date of birth were not in the state permit database. Colon testified that the defendant never applied for a temporary pistol permit in New Haven and his name was not listed in the state firearms log. This testimony constitutes uncontroverted direct evidence that the defendant did not possess a renewable state pistol permit at the time of the offense or a temporary state pistol permit issued by New Haven, the city where all events leading up to and including the defendant's arrest took place. Additionally, there is ample circumstantial evidence in the present case from which the jury could have inferred that the defendant did not possess a temporary pistol permit. We have long held that a conviction can be sustained by circumstantial evidence alone. See State v. Buhl , 321 Conn. 688, 713, 138 A.3d 868 (2016) ("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" [internal quotation marks omitted] ); see also State v. Gary , 273 Conn. 393, 405, 869 A.2d 1236 (2005) ; State v. Perez , 183 Conn. 225, 227, 439 A.2d 305 (1981) ; State v. Cari , 163 Conn. 174, 179, 303 A.2d 7 (1972). Ingles testified that the defendant fled from the police, discarded the handgun into a dumpster, and that, at the scene of the arrest, he determined that the defendant was not lawfully permitted to carry a firearm. Stephenson testified that the serial number on the handgun had been intentionally obliterated, in a likely attempt to conceal its origin, and, therefore, that the handgun was stolen. The jury reasonably could infer that this circumstantial evidence establishes that the defendant did not possess a valid pistol permit because a pistol permit holder, whether it be a temporary state permit or a renewable state permit, likely would not: (1) flee from police officers; (2) discard his handgun in a public place in an effort to distance himself from it while being pursued by police officers; (3) possess a handgun with an obliterated serial number; (4) possess a stolen handgun; and (5) be deemed to be unable to lawfully carry a firearm by a police officer at the scene of the crimes. When viewed cumulatively with the direct evidence that the defendant lacked a renewable state pistol permit and a temporary state pistol permit from New Haven, the testimony provided sufficient circumstantial evidence from which the jury may have reasonably and logically inferred beyond a reasonable doubt that the defendant did not possess a valid temporary state pistol permit. When construing the evidence presented by the state in the light most favorable to sustaining the guilty verdict-and with our focus on the evidence presented, not the evidence that the state failed to present-we hold that the jury reasonably could have concluded that the cumulative force of all the evidence-both direct and circumstantial-established that the defendant did not possess any pistol permit beyond a reasonable doubt, and therefore was guilty of carrying a pistol without a permit and unlawful possession of a weapon in a vehicle. Notwithstanding the abundant direct and circumstantial evidence tending to prove that the defendant lacked a pistol permit, the defendant cites this court's decision in State v. Beauton , 170 Conn. 234, 239, 365 A.2d 1105 (1976), to support the proposition that the prosecution must have introduced direct evidence of the defendant's lack of both a temporary and renewable state permit in order for the evidence to be sufficient to support the jury's verdict. This argument ignores the fact that in 2001, General Statutes (Rev. to 2001) § 29-28 (b) was heavily amended by No. 01-130, § 4, of the 2001 Public Acts (P.A. 01-130). The previous statute provided for a dual permit system, whereby an applicant first would obtain a local permit from the town where he or she maintained a residence or a place of business. General Statutes (Rev. to 2001) § 29-28 (b). This local permit allowed the holder to carry a handgun within that particular jurisdiction. General Statutes (Rev. to 2001) § 29-28 (b). The holder of a local permit would then have to obtain a separate state permit in order to carry a handgun within the state. General Statutes (Rev. to 2001) § 29-28 (b). Unlike the current two step, one permit system, the local and the state permits were two separate and distinct licenses, each valid for five years, and each fully renewable. General Statutes (Rev. to 2001) § 29-30 (b) and (c). Further, a licensee could allow the local permit to expire while maintaining the state permit. General Statutes (Rev. to 2001) § 29-30 (c). Essentially, prior to P.A. 01-130, a person may have held only a local permit indefinitely and would have been lawfully able to carry a handgun within his or her town. Additionally, that same person could have held a state permit only, and would have been lawfully able to carry a handgun in any town in Connecticut. We find the defendant's reliance on State v. Beauton , supra, 170 Conn. 234, 365 A.2d 1105, unpersuasive given the changes in permitting procedures made by P.A. 01-130. In Beauton , a case this court decided in 1976, the state presented evidence that the defendant lacked only a local permit, without presenting any evidence as to the absence of a state permit. Id. at 238-39, 365 A.2d 1105. This court found that the evidence was insufficient to support the defendant's conviction for violation of General Statutes (Rev. to 1975) § 29-38. Id. at 240-41, 365 A.2d 1105. The present case, in contrast to Beauton , involves the updated two step, unified permitting procedure as enumerated in General Statutes (Rev. to 2011) § 29-28 and as explained to the jury by the testimony of Imbimbo and Colon. Thus, unlike the permitting procedure prior to P.A. 01-130, the state in the present case was required to prove that the defendant lacked only a state permit, because there are no longer two separate and distinct pistol permits, but instead two steps in one unified permitting procedure. A person who lacks a renewable state pistol permit now is much less likely to possess a temporary permit than if he possessed a temporary permit prior to the 2001 amendments because temporary permits are not renewable, valid for only sixty days, and automatically evolve into a renewable permit if approved by the state. To the extent that the defendant relies on Imbimbo's testimony that there was a "possibility" that the defendant may have possessed a valid temporary pistol permit despite Imbimbo's search of the state database, that statement could have been discounted by the jury or merely credited as evidence that a remote possibility existed that through some malfunction of the permitting process the temporary permit was never forwarded to the state. See State v. Ledbetter , supra, 275 Conn. at 543, 881 A.2d 290 ("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 [finder of fact], would have resulted in an acquittal" [internal quotation marks omitted] ). The defendant also urges us to affirm the judgment of the Appellate Court on the alternative ground that the state did not present sufficient evidence to prove the charge of unlawful possession of a weapon in a vehicle in violation of § 29-38 because it did not present evidence that the other occupant of the Nissan lacked a pistol permit. The defendant concedes that this alternative ground for affirmance was not preserved and therefore asks for review pursuant to State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review the defendant's unpreserved claim because "any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right and is entitled to review whether or not the claim was preserved at trial." State v. Coleman , 83 Conn.App. 672, 679, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004), cert. denied, 544 U.S. 1050, 125 S.Ct. 2290, 161 L.Ed.2d 1091 (2005). As noted earlier, the essential elements of § 29-38 (a) are that the defendant: (1) owned, operated or occupied the vehicle; (2) had a weapon in the vehicle; (3) knew the weapon was in the vehicle; and (4) had no permit or registration for the weapon. See State v. Delossantos , supra, 211 Conn. at 273, 559 A.2d 164. In addition to these elements, the defendant, citing State v. Holloway , 117 Conn.App. 798, 820, 982 A.2d 231 (2009), cert. denied, 297 Conn. 925, 998 A.2d 1194 (2010), State v. Mebane , 17 Conn.App. 243, 246, 551 A.2d 1268, cert. denied, 210 Conn. 811, 556 A.2d 609, cert. denied, 492 U.S. 919, 109 S.Ct. 3245, 106 L.Ed.2d 591 (1989), and State v. Smith , 9 Conn.App. 330, 338-39, 518 A.2d 956 (1986), contends that if there are other passengers in the vehicle, the state must additionally prove that those passengers similarly did not possess a pistol permit. The present case is clearly distinguishable from each of the cases cited by the defendant because the gun here was discovered by police outside of the Nissan rather than inside the Nissan. In the present case, the evidence clearly indicates that the defendant was in exclusive control of the handgun from the moment he exited the Nissan until he discarded the handgun in the dumpster. Given Ingles' testimony that the defendant was driving at a very high rate of speed during the pursuit and exited the Nissan once it became immobilized-and the lack of evidence that anyone other than the defendant possessed the gun in the vehicle-it would be reasonable and logical for the jury also to conclude that the gun did not change hands while the defendant and the passenger were inside the Nissan. Therefore, there is little question that the defendant was in exclusive control of the handgun both inside and outside the Nissan. Accordingly, the facts of the present case more closely resemble those of State v. Gonzalez , 25 Conn.App. 433, 445, 596 A.2d 443 (1991), aff'd, 222 Conn. 718, 609 A.2d 1003 (1992), in which the Appellate Court held that the state need not prove whether other occupants of a vehicle possessed pistol permits when the evidence clearly shows that a defendant possessed the gun inside and outside of the vehicle. Accordingly, we reject the defendant's alternative grounds for affirmance. The judgment of the Appellate Court is reversed only as to that court's reversal of the defendant's conviction of the crimes of carrying a pistol without a permit and unlawful possession of a weapon in a vehicle, and the case is remanded to that court with direction to affirm the judgment of the trial court; the judgment of the Appellate Court is affirmed in all other respects. In this opinion the other justices concurred. General Statutes § 29-35 (a) provides in relevant part: "No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28...." General Statutes (Rev. to 2011) § 29-38 (a) provides in relevant part: "Any person who knowingly has, in any vehicle owned, operated or occupied by such person, any weapon, any pistol or revolver for which a proper permit has not been issued as provided in section 29-28 or any machine gun which has not been registered as required by section 53-202, shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon, pistol or revolver, or machine gun in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof...." All references herein to § 29-38 (a) are to the 2011 revision of the statute unless otherwise indicated. Stephenson did not elaborate on the meaning of NCIC during his testimony. The NCIC is the National Crime Information Center, which is a database maintained by the Federal Bureau of Investigation containing aggregated criminal justice information from a variety of sources. Commissioner of Correction v. Freedom of Information Commission, 307 Conn. 53, 58 n.4, 52 A.3d 636 (2012). Some files in the database contain information about individuals, other files contain records regarding stolen property. Id. The transcript reflects that the prosecutor initially asked Imbimbo whether he searched the database with the defendant's name and a date of birth of November 29, 1998. The court later engaged in this colloquy with the prosecutor: "The Court: . [W]hat was the date of birth, you inquired, I might have wrote it down wrong? "[The Prosecutor]: November 29, 2008-I mean, I'm sorry, 1988. "The Court: 1988. Okay. I'm sorry. I misheard." On the basis of this colloquy, it is reasonable for the jury to infer that Imbimbo searched for the correct date of birth of November 29, 1988. The Appellate Court reversed the judgment of the trial court only as to the charges of carrying a pistol without a permit and unlawful possession of a weapon in a vehicle. State v. Davis, supra, 156 Conn.App. at 195, 111 A.3d 567. The Appellate Court rejected the defendant's claim that the trial court improperly intervened and assisted the prosecution at trial and, accordingly, affirmed the judgment in all other respects. Id. at 191-92, 111 A.3d 567. The defendant also claims as an alternative ground for affirmance that the trial court violated his federal and state due process rights when it failed to instruct the jury that the state must prove that: (1) the defendant did not have a temporary state pistol permit issued by a municipality; and (2) none of the occupants of the Nissan had a pistol permit. Because we conclude that the evidence was sufficient to support the jury's verdict that the defendant violated § 29-35 and 29-38, we reject this alternative ground for affirmance. We note that the third element of § 29-35 was not placed at issue by the defendant. See State v. Tinsley, 181 Conn. 388, 402, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981), overruled on other grounds by State v. Pinnock, 220 Conn. 765, 788, 601 A.2d 521 (1992). It is unclear from the record whether the database searched by Imbimbo is the same list as the firearms log searched by Colon. This court has repeatedly held that a jury may infer guilt based on consciousness of guilt evidence in conjunction with other evidence, as in the present case. The Appellate Court interpreted the principle in State v. Bell, 113 Conn.App. 25, 50, 964 A.2d 568, cert. denied, 291 Conn. 914, 969 A.2d 175 (2009), that "[a] consciousness of guilt instruction is . not so directly related to an essential element of the crime that an improper flight instruction raises constitutional implications"; (internal quotation marks omitted); to mean that "consciousness of guilt evidence cannot be relied on to prove the required substantive elements of a crime" and determined, therefore, that the defendant's flight from the police officers and the discarding of the handgun cannot support an inference that he did not possess a pistol permit. State v. Davis, supra, 156 Conn.App. at 189, 111 A.3d 567. We disagree. See State v. Morelli, 293 Conn. 147, 154, 976 A.2d 678 (2009) (evidence of consciousness of guilt, along with other evidence, provided sufficient evidence to prove that defendant was under influence of intoxicating liquor, essential element of operating motor vehicle while under influence of intoxicating liquor in violation of General Statutes [Rev. to 2003] § 14-227a [a] ); State v. Groomes, 232 Conn. 455, 473-74, 656 A.2d 646 (1995) (holding that trial court properly instructed jury that it may use defendant's flight as consciousness of guilt and as independent circumstantial evidence of defendant's guilt); State v. Gray, 221 Conn. 713, 722-24, 607 A.2d 391 (consciousness of guilt evidence manifested both before and after fire provided sufficient evidence for jury to conclude defendant was guilty of arson), cert. denied, 506 U.S. 872, 113 S.Ct. 207, 121 L.Ed.2d 148 (1992) ; State v. Marra, 215 Conn. 716, 729, 579 A.2d 9 (1990) (consciousness of guilt evidence supported jury's reasonable inference that defendant aided in abduction); State v. Weinberg, 215 Conn. 231, 255, 575 A.2d 1003 ("consciousness of guilt is strong evidence that [a defendant] is indeed guilty" [internal quotation marks omitted] ), cert. denied, 498 U.S. 967, 111 S.Ct. 430, 112 L.Ed.2d 413 (1990).

12489137

STATE of Connecticut v. Tajah MCCLAIN

State v. McClain

2017-03-14

SC 19532

209

221

155 A.3d 209

155

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Rogers, C.J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

STATE of Connecticut v. Tajah MCCLAIN

STATE of Connecticut v. Tajah MCCLAIN SC 19532 Supreme Court of Connecticut. Argued November 10, 2016 Officially released March 14, 2017 Daniel J. Krisch, assigned counsel, for the appellant (defendant). Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, C. Robert Satti, Jr., supervisory assistant state's attorney, and Katherine Donoghue, deputy assistant state's attorney, for the appellee (state). Rogers, C.J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

6679

41446

ROBINSON, J. The principal issue in this certified appeal is whether an implied waiver of a claim of instructional error pursuant to State v. Kitchens , 299 Conn. 447, 482-83, 10 A.3d 942 (2011), precludes review of that claim under the plain error doctrine. The defendant, Tajah McClain, appeals, upon our grant of his petition for certification, from the judgment of the Appellate Court affirming the judgment of conviction, rendered after a jury trial, of, inter alia, murder with a firearm in violation of General Statutes § 53a-54a and 53-202k. See State v. McClain , 154 Conn.App. 281, 283, 105 A.3d 924 (2014). On appeal, the defendant contends that the Appellate Court improperly determined that a Kitchens waiver precluded plain error review of his claim of instructional error because the implied acquiescence of counsel cannot waive an error of such magnitude. Further, the defendant claims that the trial court's failure to instruct the jury on consciousness of guilt resulted in manifest injustice necessitating reversal under the plain error doctrine. Although we agree with the defendant that a Kitchens waiver does not necessarily foreclose plain error review of that same claim, we conclude that the trial court's decision not to instruct the jury on consciousness of guilt in the present case was not plain error. Accordingly, we affirm the judgment of the Appellate Court. The record and the Appellate Court opinion reveal the following facts and procedural history. The state charged the defendant with, inter alia, murder with a firearm in violation of § 53a-54a and 53-202k, in connection with the shooting death of Eldwin Barrios. On the first day of his jury trial, "the court provided counsel with a copy of the proposed jury instructions, indicated it received requests to charge from both parties, and stated it would review each accordingly. On the sixth day of trial, the court and counsel discussed the upcoming charge conference and issues relating to the jury instructions. The state reminded the court that it had requested a consciousness of guilt instruction.... Defense counsel did not object to the state's arguments, and responded, 'No, Your Honor,' when the court asked if there was anything further from either side relating to the instructions. "On the next day of trial, the court stated that it would not give the state's requested instruction, provided counsel with a copy of the proposed instructions, and asked if counsel were ready to proceed. Defense counsel did not take exception to the court's decision not to charge on consciousness of guilt. "During its rebuttal case, the state introduced the [defendant's] uniform arrest report into evidence and elicited testimony related thereto. Defense counsel did not object. The state also elicited testimony that, three months before the murder, the defendant stated he was living on Wood Avenue in Bridgeport. Defense counsel did not object. After the state rested its rebuttal case, the court held a charge conference on the record. There was no further discussion about the consciousness of guilt instruction, and, when the court asked if there was '[a]nything further on the instructions,' defense counsel responded, 'No, Your Honor.' " (Footnote omitted.) Id., at 289-91, 105 A.3d 924. The parties then gave closing arguments, during which the prosecutor argued that a discrepancy between two statements made by the defendant demonstrated his consciousness of guilt. Specifically, the prosecutor contrasted the information that the defendant provided for the uniform arrest report that he was homeless, with a statement that he gave to the police with respect to an unrelated incident, that he had a residential address on Wood Avenue. Defense counsel did not object to this argument. After closing arguments, the court instructed the jury, but did not include an instruction on consciousness of guilt. The court then asked the parties if they had any issues with the charge, and both stated that they did not. The jury found the defendant guilty of all charges. The trial court then rendered a judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of sixty-five years incarceration. Id., at 284, 105 A.3d 924. The defendant then appealed from the judgment of conviction claiming, inter alia, that the trial court's failure to instruct on consciousness of guilt was manifestly unjust, and that the judgment of conviction should be reversed under the plain error doctrine. Id., at 288-89, 105 A.3d 924. In its decision, the Appellate Court relied on State v. Rosado , 147 Conn.App. 688, 701-704, 83 A.3d 351, cert. denied, 311 Conn. 928, 86 A.3d 1058 (2014), a case in which that court declined to review the defendant's claim of plain error because it determined that defense counsel waived review of the claim under State v. Kitchens , supra, 299 Conn. at 447, 10 A.3d 942, by raising no objection, and affirmatively agreeing to, the court's proposal to take the jury's verdict before responding to a jury note requesting a clarifying instruction. See State v. McClain , supra, 154 Conn.App. at 292-93, 105 A.3d 924. The court reiterated the statement in Rosado that a valid waiver precludes plain error review because, "if there has been a valid waiver, there is no error for us to correct." (Internal quotation marks omitted.) Id., at 292, 105 A.3d 924. Applying the principles from Rosado , the Appellate Court concluded that "the representations of defense counsel reflected acquiescence in the proposed jury instructions" because defense counsel did not raise an objection to the state's request for the consciousness of guilt instruction or to the court's denial of the request, and when asked by the court, represented that he had no concerns about the charge. Id., at 293, 105 A.3d 924. Accordingly, the Appellate Court held that the defendant's actions constituted a waiver under Kitchens , which precluded plain error review. Id. This certified appeal followed. See footnote 1 of this opinion. Additional relevant facts will be set forth as necessary. I The first issue before us is whether a Kitchens waiver forecloses plain error reversal. On appeal, the defendant makes the policy argument that if a fundamental, manifest injustice amounting to plain error exists in a case, it does so regardless of whether counsel remained silent, failed to object, or affirmatively stated that he had no objection to the proposed jury instruction and, as such, a defendant's claim of plain error should not fail on the basis of counsel's implied acquiescence to the instructional error. In response, the state argues that a Kitchens waiver should foreclose relief under the plain error doctrine because a Kitchens waiver encompasses an inference that the defendant knowingly and voluntarily relinquished the right in question and, as such, that waiver precludes a claim of plain error. The state then makes the policy argument that permitting appellate review of waived claims under the plain error doctrine would invite an ambuscade of the trial courts, and would encourage sandbagging by counsel at trial. Finally, the state claims that it would be inconsistent with our recent decision in State v. Bellamy , 323 Conn. 400, 147 A.3d 655 (2016), for us to conclude that a Kitchens waiver precludes review of unpreserved constitutional claims under State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989), but permits appellate review of claims of plain error. We agree with the defendant, and conclude that a Kitchens waiver does not preclude appellate relief under the plain error doctrine. The question of whether a Kitchens waiver precludes plain error review is one of law; thus, this court's review is plenary. Moye v. Commissioner of Correction , 316 Conn. 779, 784, 114 A.3d 925 (2015). To answer this question requires a brief review of our recent waiver jurisprudence. In Kitchens , we considered whether a defendant was entitled to appellate review of his claim of instructional error pursuant to State v. Golding , supra, 213 Conn. at 239-40, 567 A.2d 823, when defense counsel failed to object or correct the given instruction. State v. Kitchens , supra, 299 Conn. at 462-63, 10 A.3d 942. The court reiterated that, with respect to Golding and the concept of waiver, "[a] constitutional claim that has been waived does not satisfy the third prong of the Golding test because, in such circumstances, we simply cannot conclude that injustice [has been] done to either party . or that the alleged constitutional violation . exists and . deprived the defendant of a fair trial ." (Internal quotation marks omitted.) Id., at 467, 10 A.3d 942. The court then analyzed whether the defendant's claim had been waived under the third prong of Golding . Id., at 468-73, 10 A.3d 942. In its discussion of the waiver doctrine in Connecticut, the court explained that "[w]aiver is an intentional relinquishment or abandonment of a known right or privilege.... It involves the idea of assent, and assent is an act of understanding.... The rule is applicable that no one shall be permitted to deny that he intended the natural consequences of his acts and conduct.... In order to waive a claim of law . [i]t is enough if he knows of the existence of the claim and of its reasonably possible efficacy." (Internal quotation marks omitted.) Id., at 469, 10 A.3d 942. Additionally, "Connecticut courts have consistently held that when a party fails to raise in the trial court the constitutional claim presented on appeal and affirmatively acquiesces to the trial court's order, that party waives any such claim [under Golding ]." (Internal quotation marks omitted.) Id. In determining whether counsel could impliedly waive a claim of instructional error for purposes of Golding , we considered the presumption of competent counsel, in that an implied waiver may well signify a strategic decision on the part of the attorney. Id., at 489-92, 10 A.3d 942. Accordingly, we concluded in Kitchens that allowing counsel to claim instructional error once waived would result in an ambuscade on the court, which could encourage sandbagging in the future. Id., at 470, 480, 10 A.3d 942. We then established a framework under which we review claims of waiver of instructional error, holding that: "[W]hen the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal. Such a determination by the reviewing court must be based on a close examination of the record and the particular facts and circumstances of each case." Id., at 482-83, 10 A.3d 942. More recently, in State v. Bellamy , supra, 323 Conn. at 403, 147 A.3d 655, we reaffirmed the Kitchens waiver rule. In Bellamy , the defendant claimed that the trial court's instruction on eyewitness identification witnesses was deficient, and that the Appellate Court had incorrectly concluded that he waived his claim of instructional error. Id., at 407-409, 147 A.3d 655. After determining that the defendant's instructional claim had been impliedly waived, we considered whether to overturn the waiver rule in Kitchens . Id., at 410, 414, 147 A.3d 655. By a narrow margin, we declined to do so. Id., at 416, 423, 439, 147 A.3d 655. We began our discussion "by noting that this court adopted the waiver rule in Kitchens in order to clarify the law and to encourage the formation of accurate jury instructions consistent with the principles of fundamental fairness and the finality of judgments." Id., at 416, 147 A.3d 655. We held that the implied waiver rule set forth in Kitchens was fair "because it is based on the presumption that counsel was aware of, and rejected as a matter of trial strategy , every conceivable challenge to the jury instructions." (Emphasis added.) Id., at 417, 147 A.3d 655. We further reaffirmed the four policy grounds upon which the court in Kitchens relied, including "(1) the presumption that counsel is competent, (2) the rules of practice that provide for counsel's participation in the crafting of instructions, (3) the rules of fairness that place responsibility with the trial court and counsel to ensure that the instructions are correct, and (4) the existence of habeas review as a potential safety net." Id., at 423, 147 A.3d 655. We note that it is undisputed that defense counsel's actions in the present case constituted a Kitchens waiver. See State v. McClain , supra, 154 Conn.App. at 289-93, 105 A.3d 924. Nevertheless, the nature of the plain error doctrine illustrates why a Kitchens waiver does not preclude plain error review. "An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily [discernible] on the face of a factually adequate record, [and] also . obvious in the sense of not debatable. . This determination clearly requires a review of the plain error claim presented in light of the record. Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application." (Internal quotation marks omitted.) State v. Jamison , 320 Conn. 589, 596, 134 A.3d 560 (2016). "[T]he plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Internal quotation marks omitted.) State v. Myers , 290 Conn. 278, 289, 963 A.2d 11 (2009). "[I]n addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.... [Previously], we described the two-pronged nature of the plain error doctrine: [An appellant] cannot prevail under [the plain error doctrine] . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Jamison , supra, at 596-97, 134 A.3d 560. It is axiomatic that, "[t]he plain error doctrine . is not . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment . for reasons of policy." (Internal quotation marks omitted.) State v. Ruocco , 322 Conn. 796, 803, 144 A.3d 354 (2016). Put another way, plain error review is reserved for only the most egregious errors. When an error of such a magnitude exists, it necessitates reversal. See id. (failure to give statutorily mandated instruction is plain error); see also, e.g., Mueller v. Tepler , 312 Conn. 631, 645-46, 95 A.3d 1011 (2014) (plain error for Appellate Court to affirm judgment of trial court granting motion to strike on alternative ground rather than remanding to afford party opportunity to amend pleading); Ajadi v. Commissioner of Correction , 280 Conn. 514, 522-25, 911 A.2d 712 (2006) (failure of trial judge to remove himself from presiding over defendant's habeas petition plain error when judge had represented defendant at his guilty plea); Belcher v. State , 99 Conn.App. 353, 354-58, 913 A.2d 1117 (2007) (judge's failure to disqualify himself based on his appearance as counsel on brief filed on behalf of defendant on direct appeal was plain error); State v. Cotton , 69 Conn.App. 505, 506, 794 A.2d 1116 (2002) (complete failure to instruct jury as to meaning of term "drug dependency" is plain error); State v. Hair , 68 Conn.App. 695, 706, 792 A.2d 179 (plain error for court to instruct jury on offense with which defendant was not charged and then accept jury's guilty verdict for offense on which jury had not been instructed), cert. denied, 260 Conn. 925, 797 A.2d 522 (2002) ; State v. Thornton , 55 Conn.App. 28, 33-34, 739 A.2d 271 (1999) (plain error to require defendant to pay money into fund for future treatment or counseling of victim, as special condition of probation). In contrast, however, Golding review is a rule of reviewability, focused not on the magnitude of the error, but rather, on the type of error alleged, with the ultimate goal of determining whether the court may review such error. State v. Golding , supra, 213 Conn. at 239-40, 567 A.2d 823 (review of unpreserved claim only when "the claim is of constitutional magnitude alleging the violation of a fundamental right"). Reversal is secondary upon the demonstrating of a harmful error. Additionally, the presumption of competent counsel upon which the waiver rule in Kitchens relies is inapplicable to plain error review-there simply is no reason why competent counsel would intentionally relinquish the right to review an error dire enough to be contemplated by the plain error rule. Thus, the policy behind the waiver rule in Kitchens is inapposite in the context of claims of plain error and, as such, a Kitchens waiver does not foreclose claims of plain error. Accordingly, the Appellate Court improperly held that a Kitchens waiver foreclosed review of a plain error claim. II We next consider whether the trial court's decision not to give a consciousness of guilt instruction in the present case constitutes plain error requiring reversal. The defendant contends that it was plain error for the trial court not to instruct the jury on consciousness of guilt, when there was a factual basis for applicability of that doctrine. The defendant argues that, because the state offered evidence on consciousness of guilt and argued that concept to the jury to discredit the defendant's sole defense of alibi, the jury needed instruction on the doctrine in order to apply it to the facts of the case. Relying on the complexities of the doctrine of consciousness of guilt, the defendant claims that without the instruction, the jury heard an incomplete and inaccurate discussion of the doctrine. Finally, the defendant contends that there is no assurance that the trial court's error was harmless in light of the weakness of the state's case. In response, the state relies on Appellate Court authority holding that a claim of error in a consciousness of guilt instruction does not warrant plain error review. See, e.g., State v. Houle , 105 Conn.App. 813, 821, 940 A.2d 836 (2008). It contends, in the alternative, that even if the failure to give a consciousness of guilt instruction warrants plain error review, such failure is not so clear and obvious an error as to be beyond debate because, in most cases, it is the defendant who would benefit from a court's failure to give such an instruction, as the instruction typically emphasizes a defendant's false statements to the police. Further, the state claims that the defendant has not demonstrated that the failure to give the instruction constituted a manifest injustice requiring plain error reversal because he failed to explain why the alleged error constituted a "truly extraordinary" situation, given that the only reference to the consciousness of guilt doctrine was a single comment in the prosecutor's closing argument, to which the defendant did not object. See State v. Myers , supra, 290 Conn. at 289, 963 A.2d 11. Finally, relying on this court's decision in State v. Payne , 303 Conn. 538, 565-66, 34 A.3d 370 (2012), the state argues that if the situation in Payne -in which a prosecutor suggested consciousness of guilt in violation of an order from the court-did not require reversal, then certainly, the present facts before us do not require plain error reversal. We agree with the state. We turn to the first prong of the plain error doctrine, namely, whether the trial court's decision not to give a consciousness of guilt instruction, is so clear an error that a failure to reverse the judgment would result in manifest injustice. See, e.g., State v. Jamison , supra, 320 Conn. at 596-97, 134 A.3d 560. The record reveals the following additional relevant facts. On the sixth day of trial, the trial court asked both parties if they had any issues relating to the jury instructions. See State v. McClain , supra, 154 Conn.App. at 289, 105 A.3d 924. The state indicated to the court that its request for a consciousness of guilt instruction was based on the following: (1) the uniform arrest report, which indicated that the defendant had stated to police shortly after the murder that he was homeless; (2) testimony from a police officer, Detective Keith Bryant, indicating that the defendant had informed police that he was living on Wood Avenue approximately three months before the murder; and (3) the testimony of the defendant's alibi witness, his sister, stating that the defendant lived with her at 430 Ogden Street in Bridgeport for six months prior to, and on the night of, the murder. Id., at 289-90, 105 A.3d 924. On the following day of trial, the trial court held a charge conference on the record. Id., at 290, 105 A.3d 924. After considering the state's request for a consciousness of guilt instruction, the trial court declined to give the instruction, stating that, it understood the state's argument to be that the information provided in the uniform arrest report was false, but the court believed that information was not information necessarily related to the events under investigation. As such, because the allegedly false information was subject to interpretation, the court declined to give an instruction describing such interpretations. The defendant did not object. During the state's rebuttal case, it introduced into evidence the defendant's uniform arrest report, in which the defendant had stated that he was homeless when he was arrested three days after the murder. Id. The state also called Detective Bryant, who testified that the defendant told him on March 4, 2010, just three months prior to the murder, that he lived on Wood Avenue. Id. After the close of evidence, the trial court held another charge conference on the record. Id. The trial court reviewed with the parties the changes it had made to the instructions, which did not include the state's requested consciousness of guilt instruction. Id. The defendant did not raise any concerns about the need for an instruction on consciousness of guilt. Id., at 290-91, 105 A.3d 924. At the end of the charge conference, both parties stated that they had no further concerns with the instructions. Id. During closing arguments, with respect to consciousness of guilt, the state argued the following: "The defendant is arrested for a crime, and you'll see [in] the [uniform arrest report] that you have, what he was arrested for; it was a murder. And at the time that he's arrested, he tells the police that he was homeless. Now, why would he tell the police he was homeless; you have a right to consider that. Can you use that as circumstantial evidence of a consciousness of guilt. Think about it. If I tell them I'm living at 430 Ogden Street, they're gonna be able to go over and find out the truth in this case. If you're thinking about this yourself; just yourself thinking about things. [The defendant] gets shot at on [March 4, 2010] . [a]nd he says, I live [on] Wood Avenue . What's the import of that; well, [the defendant's sister said] that the defendant lived at [430] Ogden Street." After closing arguments, the trial court instructed the jury on the applicable law, but did not include an instruction on consciousness of guilt. State v. McClain , supra, 154 Conn.App. at 291, 105 A.3d 924. The court then asked the parties whether they had any issues with the charge, and both stated that they did not. Id. The defendant's claim asserts, somewhat paradoxically, that he suffered manifest injustice because the trial court omitted an instruction that ordinarily is sought by the state and opposed by the defendant. A consciousness of guilt instruction is intended to draw the jury's attention to indirect evidence of the defendant's guilt, including, for example, false statements made to the police. See Connecticut Criminal Jury Instructions (4th Ed. 2008) § 2.6-3, available at http://www.jud.ct.gov/ji/criminal/Criminal.pdf (last visited March 1, 2017) (pattern instruction). The instruction then permits the jury to infer from the evidence that the defendant was acting from a guilty conscience. Id. Tellingly, the pattern jury instruction on consciousness of guilt states in part that: "In any criminal trial it is permissible for the state to show that conduct or statements made by a defendant after the time of the alleged offense may have been influenced by the criminal act; that is, the conduct or statements show a consciousness of guilt.... The state claims that the following conduct is evidence of consciousness of guilt ." (Footnotes omitted.) Id. Thus, the pattern instruction anticipates the state , not a defendant, pursuing a consciousness of guilt instruction. Contrary to the defendant's position that the trial court's decision not to instruct on consciousness of guilt was manifestly unjust, in challenging a trial court's consciousness of guilt instruction, defendants often contend that the instruction is improper because it improperly shifts the burden of proof from the state to the defendant; State v. Banks , 194 Conn. 617, 622, 484 A.2d 444 (1984) ; and inserts the court's imprimatur on the state's version of the events. State v. Johnson , 288 Conn. 236, 285, 951 A.2d 1257 (2008). As such, defendants typically object to a consciousness of guilt instruction because the instruction is detrimental to their credibility and, ultimately, to their case. Additionally, "[t]he decision to give a consciousness of guilt instruction is left to the sound discretion of the trial court." State v. Hinds , 86 Conn.App. 557, 565, 861 A.2d 1219 (2004), cert. denied, 273 Conn. 915, 871 A.2d 372 (2005) ; see also, e.g., State v. Banks , supra, 194 Conn. at 622, 484 A.2d 444. Although we cannot foreclose the possibility that a trial court's failure to exercise its discretion to give a requested, but not required, instruction could rise to the level of plain error, we observe that the fact that the decision is discretionary makes that eventuality less likely. Given the typicality of the state pursuing a consciousness of guilt instruction and the potential benefits to the defendant from the trial court's decision not to give the instruction, the trial court's decision in the present case is not so clearly and obviously an error that it undermines the integrity and fairness of the judicial proceeding necessitating reversal. Accordingly, we conclude that the trial court's decision not to provide the instruction on consciousness of guilt, requested by the state, was not plain error requiring reversal. The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred. I agree with and join in the conclusions of the majority opinion that an implied waiver of Golding review pursuant to State v. Kitchens , 299 Conn. 447, 10 A.3d 942 (2011), does not preclude an appellate court from holding that there was plain error in a trial court's jury instruction, but that the instructions in this case were proper. I write separately to express my continued disagreement with the rule of Kitchens and my belief that that case was decided incorrectly and, therefore, should be overruled. See State v. Bellamy , 323 Conn. 400, 454-66, 147 A.3d 655 (2016) (Rogers, C.J. , concurring). Although today's decision provides an important safeguard against convictions obtained with egregiously mischarged juries, the availability of plain error reversal is an inadequate substitute for regular appellate review of claims of constitutional error in jury instructions. As I explained in my concurrence in Bellamy , such review provides important benefits to criminal defendants and society as a whole, and it is questionable whether the efficiencies sought by Kitchens outweigh those benefits or even will be effectively achieved. Id., at 458-60, 147 A.3d 655. Moreover, it is much more difficult for a defendant to prevail within the narrow confines of the plain error doctrine than under Golding , and that doctrine, unlike Golding , does not appear to provide a hospitable framework for the advancement of claims that are novel or whose success is dependent on the overruling of existing precedent. See id., at 458, 147 A.3d 655 n.6 (Rogers, C.J. , concurring). Accordingly, I concur in the judgment. We initially granted the defendant's petition for certification to appeal limited to the following question: "Did the Appellate Court properly determine that an implied waiver of a claim of instructional error that satisfies State v. Kitchens , [supra, 299 Conn. at 447, 10 A.3d 942], also forecloses plain error review?" State v. McClain , 319 Conn. 902, 122 A.3d 637 (2015). We subsequently granted the defendant's motion to add the following certified question: "If the answer to [the first question is] 'no,' was the trial court's failure to instruct the jury on consciousness of guilt plain error requiring reversal of the judgment?" We note that the Appellate Court did not reach the merits of this issue, however, because it affirmed the judgment of the trial court on the ground that an implied waiver of a claim of instructional error under Kitchens also forecloses plain error review. We granted the defendant's motion to modify the certified question in the interest of judicial economy in order to avoid an unnecessary remand of a single issue appeal to the Appellate Court. The state also charged the defendant with assault in the first degree with a firearm in violation of General Statutes § 53a-59 (a) (5) and 53-202k, and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). See State v. McClain , supra, 154 Conn.App. at 283, 105 A.3d 924. For a detailed recitation of the facts underlying this murder charge, see State v. McClain , supra, 154 Conn.App. at 283-84, 105 A.3d 924. The defendant's appeal from the trial court's judgment of conviction was originally filed in this court. State v. McClain , supra, 154 Conn.App. at 292 n.4, 105 A.3d 924. Following an order of this court transferring the case to the Appellate Court pursuant to Practice Book § 65-1, the defendant filed a motion requesting that the Appellate Court hear that appeal en banc "because the court would need to overrule Rosado [in order to] reverse the judgment for plain error." Id. We note that the Appellate Court denied that request. Id. Under Golding , it is well settled that a defendant may prevail on an unpreserved claim when: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Footnote omitted.) State v. Golding , supra, 213 Conn. at 239-40, 567 A.2d 823 ; see In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding ). In adopting the standard set forth in Kitchens , we relied on, inter alia, "the widely recognized presumption that counsel is competent and capable of acting on behalf of the defendant in matters concerning trial management, including waiver of the defendant's right to challenge a jury instruction ." State v. Kitchens , supra, 299 Conn. at 486-88, 10 A.3d 942. To that end, we concluded "first, that trial courts expect significant participation by counsel in formulating jury instructions because there would be no reason for our rules to provide such guidance if little or no participation was anticipated. We also conclude[d] that competent counsel, being cognizant of our rules, is aware that there are multiple opportunities to request specific instructions, that exceptions or objections to the instructions proposed or given may be taken or raised at various times, and that a charge conference may be requested to consider the instructions and any changes or modifications thereto that counsel deems necessary to ensure that they are correct. Accordingly, reviewing courts in Connecticut have good reason to conclude that counsel knowingly and intentionally waived the right to challenge a jury instruction when the trial court has provided the parties with a meaningful opportunity to review and discuss the instructions, to request changes or modifications before and after the instructions are given, and to comment on the instructions while there is still time to correct them." (Emphasis in original.) Id., at 494, 10 A.3d 942. Although the main question before us in Bellamy was whether to overrule Kitchens , justices in the majority and concurring opinions noted the uncertainty in the law as to whether a Kitchens waiver precludes plain error review, but left that question for another day. See State v. Bellamy , supra, 323 Conn. at 433 n.22, 147 A.3d 655 ; see also, id., at 458, 147 A.3d 655 n.6 (Rogers, C.J. , concurring). The defendant also argues that, because Connecticut modeled the plain error doctrine codified in Practice Book § 60-5 on the federal plain error rule, federal cases are persuasive in this context. According to the defendant, the rule embraced by the Appellate Court-that trial counsel's acquiescence waives review for plain error-is followed by only a minority of jurisdictions. He explains that most federal courts of appeal refuse to find waiver of instructional plain error on the basis of a defendant's failure to object to a court's proposed jury instruction, or even on the basis of counsel's affirmative statement of no objection to the proposed instruction. Additionally, the defendant relies on the United States Supreme Court decision in United States v. Olano , 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), for the proposition that a defendant only waives his right to claim plain error when he does so purposefully and freely, and as such, an implied Kitchens waiver should not preclude his claim of plain error. In response, the state claims that United States v. Olano , supra, 507 U.S. at 725, 113 S.Ct. 1770, stands for the proposition that if a defendant has intentionally relinquished or abandoned a known right, he is barred from seeking reversal under the plain error doctrine and, as such, because Kitchens treats implicit and express waivers in the same manner, a valid, implied Kitchens waiver forecloses claims of plain error. As we explain subsequently, federal case law is inapposite and unpersuasive on the basis of the fundamental differences between the federal and state plain error and waiver doctrines. Specifically, although we acknowledge the federal case law cited by both parties, we find it unpersuasive because of the fundamental differences between federal case law and post-Kitchens case law in the context of reviewing unpreserved claims. Under federal law, "an appellate court may, in its discretion , correct an error not raised at trial only where the appellant demonstrates that (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." (Emphasis added; internal quotation marks omitted.) United States v. Marcus , 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010). By contrast, however, Connecticut's plain error doctrine is a rule of reversibility, mandating reversal when plain error is found. See State v. Sanchez , 308 Conn. 64, 78-81, 60 A.3d 271 (2013) (overruling previous case law that applied abuse of discretion standard when reviewing Appellate Court's decision whether to reverse judgment under plain error doctrine because plain error review is not discretionary). Additionally, federal courts do not recognize the concept of implied waiver, in that counsel's acquiescence cannot constitute a waiver. See, e.g., United States v. Ramirez-Castillo , 748 F.3d 205, 212 (4th Cir. 2014) ; United States v. Harris , 695 F.3d 1125, 1130 n.4 (10th Cir. 2012) ; United States v. Brown , 352 F.3d 654, 663 and n.8 (2d Cir. 2003) ; United States v. Dennis , 271 F.3d 71, 73 (2d Cir. 2001). This is in stark contrast to our implied waiver rule in Kitchens , recently reaffirmed in State v. Bellamy , supra, 323 Conn. at 416, 423, 439, 147 A.3d 655, in which we held that counsel's acquiescence can in some instances constitute a waiver. Accordingly, because federal courts do not recognize the concept of implied waiver at all, they are inapposite to our post-Kitchens waiver case law and the present case. Because plain error review is fundamentally different from Golding review, we are unpersuaded by the state's argument that it would be inconsistent for this court to conclude that a Kitchens waiver precludes Golding review, but permits claims of plain error. In its decision in the present case, the Appellate Court extensively relied on State v. Rosado , supra, 147 Conn.App. at 688, 83 A.3d 351. See State v. McClain , supra, 154 Conn.App. at 291-93, 105 A.3d 924. To the extent that State v. Rosado , supra, at 704, 83 A.3d 351, holds that a Kitchens waiver precludes claims of plain error, we overrule it. See footnote 1 of this opinion. Few instances have arisen before this court in which it was the defendant challenging the trial court's failure to give a consciousness of guilt instruction. See, e.g., State v. Shannon , 212 Conn. 387, 409, 563 A.2d 646 (defendant claimed trial court should have given consciousness of guilt instruction because consciousness of guilt evidence implicated third party), cert. denied, 493 U.S. 980, 110 S.Ct. 510, 107 L.Ed.2d 512 (1989). This is in stark contrast to State v. Ruocco , supra, 322 Conn. at 796, 144 A.3d 354, a case relied upon by the defendant at oral argument and brought to our attention after briefing pursuant to Practice Book § 67-10 for the proposition that it was plain error for the trial court not to give the consciousness of guilt instruction. We are unpersuaded. Contrary to the present case, in Ruocco , the instruction at issue was an adverse inference instruction, which pertained to the defendant's fundamental right not to testify at trial, and the jury's subsequent responsibility not to draw any adverse inference's from the defendant's decision not to testify. Id., at 801, 144 A.3d 354. Such instructions are mandatory pursuant to General Statutes § 54-84 (b), as opposed to consciousness of guilt instructions, which are discretionary . Whereas the trial court's failure to give a mandatory instruction in Ruocco was an obvious error, on its face, satisfying the first prong of the plain error doctrine, the same cannot be true of the present case. Thus, Ruocco is inapposite to the present case. Here, because the decision whether to give the consciousness of guilt instruction is discretionary, it follows that the trial court's decision not to give the instruction was not so obvious an error that it was not debatable, resulting in plain error necessitating reversal. We leave for another day the question of whether a trial court's exercise of its discretion to give that charge ever can amount to plain error-that is, an error so obvious on its face that it is undebatable. Although the defendant claims that without the pattern instruction, the jury heard an incomplete and inaccurate discussion of the doctrine, we disagree. As noted previously in this opinion, it is within the discretion of the trial court to determine whether to instruct the jury on consciousness of guilt, and given the likely potential benefits to the defendant from the court declining to give this instruction requested by the state, we find this argument to be unavailing. See State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

12489136

STATE of Connecticut v. Erick BENNETT

State v. Bennett

2017-03-14

SC 18862

188

209

155 A.3d 188

155

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

STATE of Connecticut v. Erick BENNETT

STATE of Connecticut v. Erick BENNETT SC 18862 Supreme Court of Connecticut. Argued November 8, 2016 Officially released March 14, 2017 Erick Bennett, self-represented, with whom was James B. Streeto, senior assistant public defender, for the appellant (defendant). Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, former state's attorney, and Elizabeth Baran, former senior assistant state's attorney, for the appellee (state). Rogers, C. J., and Palmer, McDonald, Espinosa and Robinson, Js.

10399

63691

McDONALD, J. The defendant, Erick Bennett, directly appeals to this court following his conviction of murder in violation of General Statutes (Rev. to 2009) § 53a-54a. The defendant claims that there were numerous defects in his trial, the principal of which was that the trial court violated his constitutional right to present a defense by improperly refusing either to issue a summons to secure the attendance of a material witness in support of a theory of third-party culpability, or to allow the defendant to introduce that witness' statement to the police in lieu of her live testimony. We conclude that defense counsel's failure to locate the out-of-state witness with any reasonable degree of certainty precludes relief regarding the issuance of a summons for the witness and that none of the defendant's remaining claims warrant reversal of the trial court's judgment of conviction. The jury reasonably could have found the following facts. On the evening of July 10, 2009, the victim, Willie Brown, and his girlfriend, Veronica Arroyo, attended a social gathering. Around 9 p.m., the defendant and his sister, who were casual friends with Arroyo, picked up Arroyo to go to Raffy's Café Bar in Meriden. Upon arriving outside the bar, Arroyo saw Christopher Benjamin, a close friend of Brown's, and greeted him. Brown called Arroyo on her cell phone, and after she told him that Benjamin was at the bar, Brown prevailed upon Benjamin to pick him up and bring him there despite Arroyo's plea to Benjamin that he not do so because she was concerned that Brown had been drinking and would get into trouble. After Brown arrived, he and Arroyo began to argue while they and others stood in the parking lot behind the bar. When they first started to argue, the defendant came over and told Brown to "chill out," which made Brown angry. Benjamin stepped in between the two men and the situation deescalated, but not before Benjamin saw the defendant holding a pocketknife at his side. After Arroyo and Brown recommenced arguing, Benjamin walked over to the couple. Arroyo then began hitting and cursing at Benjamin for bringing Brown to the bar. Brown pried Arroyo away from Benjamin, but then began arguing with Arroyo again in the vicinity of the defendant. Benjamin heard the defendant state: "I'm not here for this . I don't give a fuck. I'm going [to] kill him. I don't care." The defendant then held a knife up to Benjamin's neck, threatening: "[I]f I really wanted to kill you, I can right now." Benjamin walked away, and Arroyo and Brown momentarily stopped arguing. After a third argument commenced between Arroyo and Brown, the defendant and Brown exchanged words. The two men came face-to-face, and the defendant pushed Brown to the ground. When Brown stood up, the defendant stabbed him in the chest several times, inflicting mortal wounds. Brown initially was able to get to his feet, but stumbled around and then collapsed to the ground. Benjamin heard a woman screaming and ran over to Brown, becoming hysterical when he saw how badly Brown was injured. The defendant and his sister fled the scene in his vehicle. He spent the night at his sister's home and left for New York City the following day, returning to Meriden several weeks later. The police obtained evidence inculpating the defendant shortly after the crime. Arroyo and Benjamin gave statements identifying the defendant as the person who had stabbed Brown. Another witness to the incident, Brandon Hogue, described the person who stabbed Brown as a man in a red or purple polo shirt, which was consistent with the clothing worn by the defendant that night. Although the police did not recover the entire knife, they found two thumb studs-the part of a folding knife used to open the blade-in the defendant's vehicle with blood on them that was consistent with Brown's DNA profile. The defendant testified at trial. He denied stabbing Brown and claimed not to know who had done so because he had been walking to his vehicle when the stabbing occurred. The defendant suggested through the testimony of the mother of several of his children that the police had planted the knife thumb studs in his vehicle. The defendant attempted unsuccessfully to obtain and introduce certain evidence in support of a theory that Benjamin or some unidentified Spanish speaking man or men had stabbed Brown, as well as evidence of police bias against him. Following the jury's verdict of guilty on the murder charge, the defendant also unsuccessfully sought permission to file a late motion for a new trial on the basis of a newly published report finding certain defective procedures in the state forensic laboratory. Those rulings, as well as challenges to the propriety of certain statements made by the prosecutor during cross-examination and closing arguments, are the subject of the present appeal. I The defendant's principal claim is that he was deprived of his constitutional rights to present a defense and to compulsory process insofar as he was unable to offer testimony from Jennifer Matias, a witness in support of his defense of third-party culpability, or Matias' statement she made to the police. Specifically, the defendant contends that the trial court improperly (1) denied his request for a material witness warrant to obtain Matias' appearance from out of state, and (2) denied admission of a recorded statement that Matias had given to the police. We disagree. The record reveals the following additional undisputed facts. Matias made a 911 call to the police regarding the incident at Raffy's Café Bar. When the police arrived thereafter, she gave them a statement about what had prompted the call. She went to the police station approximately one hour later and gave a second statement, which was recorded. In her recorded statement, Matias provided the following account. Matias was visiting her mother's apartment, located across the street from the bar, when she heard people yelling. She went to the window and observed approximately twenty people standing around behind the bar watching a fistfight. Matias could not make out any features of the people fighting because the only light was from the bar, but she could see that there were three black men involved in the fight: a man in a red shirt, a man in a yellow shirt, and a man in a white shirt. Those descriptions matched the clothing worn that night by the defendant (red shirt), Benjamin (yellow shirt), and Brown (white shirt). Matias heard one or more women yelling, "Don't do it.... Gun. Oh, my God. A gun." After seeing the man in the yellow shirt push the man in the white shirt to the ground, Matias left the window to call 911. She then heard one or more gunshots, which brought her back to the window. She observed the man in the red shirt flee and drive away, while the man in the yellow shirt knelt next to the man in the white shirt on the ground. The man in the yellow shirt was hysterical, and stated, " 'Oh, I killed him. I killed him.' " Defense counsel first alerted the trial court to concerns about his ability to proffer Matias as a witness as jury selection was about to commence. He explained that Matias had called him after she learned that he had mailed a subpoena to her residence, and had stated "that she had been contacted by several people over the past few months and she did not want to take any part in this case. She was told by a woman by the name of "Beth"-the name of the prosecutor-"that she did not have to do so if she didn't want to. Also . she [stated] that . [t]he Meriden Police Department indicated that if anybody had called her or had spoken to her about this case that they would take care of it." Matias hung up without telling defense counsel where she was. Defense counsel stated his intent to file a motion on this matter. Shortly thereafter, the defendant filed a motion in limine seeking to admit the recorded interview that Matias had given to the police. The defendant argued therein that, because the police had failed to preserve Matias' 911 call, he should be permitted to introduce the only recording preserving her version of the incident-i.e., the interview. In his memorandum in support of the motion, dated May 31, 2011, defense counsel noted that Matias had informed him that she would not be returning to Meriden until June 6, 2011. On June 9, 2011, the trial court informed counsel that it was deferring a ruling on the motion in limine, noting that defense counsel was still seeking to serve a subpoena on Matias. Defense counsel then requested that the court "consider giving an order that the state issue a material witness warrant" for Matias. He noted that he had attempted to serve Matias with a subpoena at her residence and at her mother's residence, but was unsuccessful because she was not in Connecticut. He added that, without personally serving Matias, "[t]he only other remedy at the defense's disposal would be to ask the court for a material witness warrant which falls pursuant to, I believe, it's [General Statutes §] 54-84j and the state has the ability to ask for [one]. I do not have that ability. So, I would request that the court order the state to issue a material witness warrant for . Matias." (Footnote added.) The trial court declined to rule on that request, noting that defense counsel had indicated in his motion in limine that Matias would be returning to Meriden on June 6, 2011, and that he still had time to serve her with a subpoena, but suggesting that counsel could renew his request if his efforts were unsuccessful. During the state's case-in-chief, defense counsel brought to the court's attention that he had received information from Matias and another person that Matias was then in Puerto Rico and did not anticipate returning to the state. Several days later, defense counsel renewed his request for the court to order the state to issue a material witness warrant for Matias. The trial court then asked: "[T]hat is pursuant to [General Statutes §] 54-82j. Is that correct, counsel?" Defense counsel answered, "That's correct, Your Honor." In response to questioning from the court, defense counsel conceded that he knew of no case in which a court had ordered the detention of a witness for a defendant pursuant to § 54-82j, but claimed that fundamental fairness required that he should have access to the same discovery tool available to the state. The trial court read the text of § 54-82j on the record and then denied counsel's request on the following ground: "We don't have an address for [Matias]. There's no case law that this court is aware of and the statute is clear on its face that it is a written complaint from the state's attorney addressed to the clerk. So this court does not have authority pursuant to the statute to grant the request of defense counsel ." Shortly before the close of the state's case-in-chief, the court heard argument on the defendant's motion in limine seeking admission of Matias' recorded statement to the police. Defense counsel argued that the defendant's right to present a defense would be violated unless the trial court admitted Matias' statement inculpating Benjamin-the only evidence of her version of events because of the state's failure to preserve the 911 call and its fault in encouraging Matias' absence at trial. Defense counsel asserted that the statement was admissible under the residual hearsay exception. In response, the prosecutor explained that she had not told Matias that she did not have to appear at trial, but instead had only told her she did not have to speak with anyone who was harassing her about the case. The prosecutor argued that the statement was inadmissible under the residual hearsay exception and contained many layers of hearsay. After the prosecutor also suggested that Matias should not be deemed unavailable because defense counsel could have taken greater efforts to travel out of state to serve her, counsel responded that he "ha[d] no address for this witness in Puerto Rico" and that she was unwilling to provide such information. The trial court denied the defendant's motion on the ground that the statement did not satisfy the residual hearsay exception. The court put aside the issue of reasonable necessity, resting its ruling on the ground that her statement was not sufficiently trustworthy. The court reasoned that Matias had not appeared at a probable cause hearing and, thus, her account had never been subjected to cross-examination. The court also noted that Matias' statement was not corroborated by the testimony of any of the other three eyewitnesses. A We begin with the defendant's claim that he was deprived of his right to present a defense insofar as the trial court declined to issue a material witness warrant to obtain Matias' appearance. On appeal, the defendant concedes that the proper statute for a defendant to invoke to seek the court's issuance of a certificate for procuring out-of-state witnesses is General Statutes § 54-82i, and that § 54-82j, which was invoked before the trial court, addresses the state's right to have a warrant issued on its behalf by the clerk of the court. The defendant nevertheless contends that he preserved his claim under § 54-82i because his request was sufficiently clear to invoke the procedures of that statute, a proposition that the state vigorously disputes. The defendant alternatively seeks to prevail on an unpreserved claim under State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. We conclude that the defendant's inability to provide a location for Matias with any reasonable degree of certainty is fatal to his claim that his right to present a defense was violated by the court's failure to issue a certificate to summon her from out of state. At the outset, we note that, contrary to the defendant's contention, he did not make a generalized request for the trial court to issue a material witness warrant. Rather, defense counsel repeatedly affirmed in response to unambiguous questions from the court that he was asking the court to order the state to seek the issuance of a material witness warrant under § 54-82j . Although this court has recognized that it can be plain error for a trial court to fail to apply a clearly applicable statute, even if the parties do not bring it to the court's attention; see Genovese v. Gallo Wine Merchants, Inc. , 226 Conn. 475, 480 n.6, 628 A.2d 946 (1993) ; the situation here is a step removed from that case law. In the present case, the defendant repeatedly invoked the wrong statute and asked the court to take a different action (ordering action by the state), but to achieve an end that a different statute plainly authorized-the court's issuance of a certificate summoning the out-of-state witness. We conclude that, irrespective of whether we assume that our clear error case law extends to such circumstances and that the trial court had adequate notice of the defendant's claim to render it preserved for appellate review, his claim fails. We agree with the defendant that the record is adequate for review. Although the state correctly points out that the trial court never made a predicate factual finding that Matias would be a "material" witness, no reasonable trier of fact could conclude otherwise. For the reasons that follow, we further agree with the defendant that the improper denial of the use of the procedures set forth in § 54-82i for procuring out-of-state material witnesses states a cognizable constitutional claim. The sixth amendment to the United States constitution provides in relevant part that "[i]n all criminal prosecutions, the accused shall enjoy the right . to have compulsory process for obtaining witnesses in his favor ." The sixth amendment right to secure the compulsory attendance of witnesses on one's behalf and the more general right to present a defense is applicable to the states through the due process clause of the fourteenth amendment. Washington v. Texas , 388 U.S. 14, 17-19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). It is well settled, however, that a state court's subpoena power is limited to the state's borders. See Minder v. Georgia , 183 U.S. 559, 562, 22 S.Ct. 224, 46 L.Ed. 328 (1902) ("it is not within the power of the Georgia courts to compel the attendance of witnesses who are beyond the limits of the [s]tate"). For this reason, several state courts have recognized that the sixth amendment right to compulsory process does not give a defendant the right to compel the attendance of witnesses from beyond the court's jurisdiction. See People v. Cavanaugh , 69 Cal.2d 262, 265, 444 P.2d 110, 70 Cal.Rptr. 438 (1968), cert. denied, 395 U.S. 981, 89 S.Ct. 2139, 23 L.Ed.2d 768 (1969) ; Commonwealth v. Edgerly , 6 Mass.App.Ct. 241, 255 and n.6, 375 N.E.2d 1 (1978) ; State v. Closterman , 687 S.W.2d 613, 620 (Mo. App. 1985) ; State v. Smith , 87 N.J.Super. 98, 102, 208 A.2d 171 (1965) ; People v. McCartney , 38 N.Y.2d 618, 621, 345 N.E.2d 326, 381 N.Y.S.2d 855 (1976) ; State v. Blount , 200 Or. 35, 50, 264 P.2d 419 (1953), cert. denied, 347 U.S. 962, 74 S.Ct. 711, 98 L.Ed. 1105 (1954). It was to fill in this gap that the 1936 Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings was adopted in all fifty states, as well as the Virgin Islands and the District of Columbia. Unif. Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, 11 U.L.A. 1-2 (West 2003) (table of jurisdictions wherein 1936 uniform act has been adopted); see also footnote 4 of this opinion (Puerto Rico has adopted similar reciprocal statute). Nevertheless, "[n]either the requirements of compulsory process nor of the [f]ourteenth [a]mendment . demand that [a] state enact such legislation.... The operation of the [u]niform [a]ct depends upon the principles of comity, and it has no efficacy except through the adoption of the same act by another state." (Citation omitted.) State v. Blount , supra, at 50, 264 P.2d 419 ; accord People v. Cavanaugh , supra, at 266 n.3, 70 Cal.Rptr. 438, 444 P.2d 110. Other courts have recognized, properly in our view, that when a defendant has the right to secure the attendance of out-of-state witnesses through the uniform act, the improper denial of the use of such procedures can result in a violation of the defendant's constitutional rights to due process and to present a defense. See Preston v. Blackledge , 332 F.Supp. 681, 684 (E.D.N.C. 1971) ; State v. Brady , 122 Ariz. 228, 230, 594 P.2d 94 (1979) ; Rivera v. District Court of Comanche County , 851 P.2d 524, 527 (Okla. 1993). Accordingly, we agree with the defendant that, if he were improperly denied the procedures in § 54-82i for compelling the attendance of a material out-of-state witness, his constitutional rights under the sixth and fourteenth amendments were violated. Nonetheless, the defendant cannot establish that the trial court improperly failed to grant his request to summon Matias from out of state under § 54-82i. Although we have not previously addressed this question, other jurisdictions have considered the defendant's ability to locate the witness in assessing whether the trial court abused its discretion in refusing to issue process for an out-of-state witness. In the seminal case on this issue, Lancaster v. Green , 175 Ohio St. 203, 205, 192 N.E.2d 776 (1963), the court observed: "Inasmuch as a state's process cannot extend beyond its borders, and, thus, the state cannot as a matter of right compel the attendance of a witness beyond its borders but can only procure such witnesses by the voluntary cooperation of another state, clearly the accused must be able to designate the witness and his location with exactitude before any duty devolves on the court to initiate the complex judicial process necessary under these acts to procure the attendance of out-of-state witnesses." Other jurisdictions have followed suit, requiring the defendant to adequately designate the witness' location. See, e.g., People v. Williams , 114 Mich.App. 186, 201, 318 N.W.2d 671 (1982) ; State v. Smith , supra, 87 N.J. Super. at 105, 208 A.2d 171 ; State v. Tindall , 294 N.C. 689, 700, 242 S.E.2d 806 (1978). When setting forth its reasons for denying the defense request in the present case, the trial court first stated that there was no address available for Matias. The defendant previously had conceded to the court not only that he lacked this information, but also that Matias was unwilling to provide it. The only information known to the defendant was that Matias was in Puerto Rico. We do not intend to suggest that the defendant necessarily was required to provide a residential street address. The defendant, however, should have indicated to the trial court that he had, or had some means by which he would be able to obtain, information to ascertain Matias' location with a reasonable degree of specificity that would allow service of the summons. He did not so do. Cf. State v. Smith , supra, 87 N.J. Super. at 105, 208 A.2d 171 ("general reference to 'Royer Run, Pennsylvania,' without any designation of where the witness might be found therein, was not enough"); State v. Green , Docket No. 1997CA00382, 1998 WL 347092, *4 (Ohio App. June 22, 1998) (defendant failed to satisfy burden when deputy could not locate witnesses at address given and defendant was unable to offer additional information regarding their location). Nor did the defendant make any representation to this court that he would have been able to locate Matias had the certificate been issued. Accordingly, the defendant cannot establish that the trial court improperly failed to issue a certificate summoning Matias. B The defendant alternatively claims that the trial court infringed on his right to present a defense by improperly denying admission of Matias' recorded statement. The defendant contends that the trial court should have admitted the statement: (1) as a spontaneous utterance because Matias provided the statement approximately one hour after her 911 call; or (2) under the residual hearsay exception because it bore the requisite indicia of reliability and trustworthiness insofar as she was a neutral, disinterested witness. We conclude that the trial court did not abuse its discretion in declining to admit this statement. A defendant has a constitutional right to present a defense, but he "is [nonetheless] bound by the rules of evidence in presenting a defense.... Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes." (Internal quotation marks omitted.) State v. Andrews , 313 Conn. 266, 275, 96 A.3d 1199 (2014). Accordingly, "[i]f the proffered evidence is not relevant [or constitutes inadmissible hearsay], the defendant's right to confrontation is not affected, and the evidence was properly excluded." (Internal quotation marks omitted.) State v. Devalda , 306 Conn. 494, 516, 50 A.3d 882 (2012) ; see also State v. Hedge , 297 Conn. 621, 634-36, 1 A.3d 1051 (2010) (defendant has constitutional right to introduce evidence of third-party culpability if it is relevant and directly connects third party to crime); State v. Tutson , 278 Conn. 715, 746-51, 899 A.2d 598 (2006) (no violation of constitutional right to present defense when trial court properly excluded evidence on hearsay grounds). We can quickly dispose of the defendant's first evidentiary basis for admitting the statement. We agree with the state that the defendant's argument that Matias' recorded statement should have been admitted as a spontaneous utterance is not entitled to review because he did not seek admission of that statement on that basis. Rather, he sought admission of Matias' earlier statement to the police at the scene under that hearsay exception. The defendant does not challenge the exclusion of Matias' earlier statement or claim that he is entitled to review of an unpreserved evidentiary claim as to her later recorded statement. "Appellate review of evidentiary rulings is ordinarily limited to the specific legal [ground] raised by the objection of trial counsel. . To permit a party to raise a different ground on appeal than [that] raised during trial would amount to trial by ambuscade, unfair both to the trial court and to the opposing party." (Citation omitted; internal quotation marks omitted.) State v. Sandoval , 263 Conn. 524, 556, 821 A.2d 247 (2003). Accordingly, the defendant is not entitled to review of his claim that Matias' recorded statement should have been admitted as a spontaneous utterance. The defendant, however, is entitled to review of his claim that the trial court improperly precluded admission of the statement under the residual hearsay exception, the ground on which he did seek its admission. We review that decision for an abuse of discretion, making every reasonable presumption in favor of upholding the trial court's ruling. See State v. Andrews , supra, 313 Conn. at 276, 96 A.3d 1199 ; see also State v. Myers , 126 Conn.App. 239, 247, 11 A.3d 1100 ("[a] court's conclusion as to whether certain hearsay statements bear the requisite indicia of trustworthiness and reliability necessary for admission under the residual exception to the hearsay rule is reviewed for an abuse of discretion" [internal quotation marks omitted] ), cert. denied, 300 Conn. 923, 14 A.3d 1006 (2011). The legal principles guiding the exercise of the trial court's discretion regarding the admission of hearsay evidence under the residual exception are well established. "An [out-of-court] statement is hearsay when it is offered to establish the truth of the matters contained therein.... As a general rule, hearsay evidence is not admissible unless it falls under one of several well established exceptions.... The purpose behind the hearsay rule is to effectuate the policy of requiring that testimony be given in open court, under oath, and subject to cross-examination.... The residual, or catchall, exception to the hearsay rule allows a trial court to admit hearsay evidence not admissible under any of the established exceptions if: (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions." (Citations omitted; internal quotation marks omitted.) State v. Oquendo , 223 Conn. 635, 664, 613 A.2d 1300 (1992) ; accord Conn. Code Evid. § 8-9. We have recognized that "[t]he residual hearsay exceptions [should be] applied in the rarest of cases ." (Internal quotation marks omitted.) State v. McClendon , 248 Conn. 572, 585, 730 A.2d 1107 (1999), overruled in part on other grounds by State v. Guilbert , 306 Conn. 218, 246-53, 49 A.3d 705 (2012). The trial court rested its decision solely on the ground that Matias' statement lacked sufficient reliability and trustworthiness. One factor supporting that conclusion was that Matias had never been subjected to cross-examination regarding the circumstances surrounding her observations of the incident. A declarant's availability for cross-examination has been deemed particularly significant in determining whether hearsay evidence is supported by guarantees of trustworthiness and reliability. Compare State v. Sharpe , 195 Conn. 651, 665, 491 A.2d 345 (1985) (concluding that residual hearsay exception satisfied when, among other reasons, declarant was available for cross-examination), with State v. McClendon , supra, 248 Conn. at 583-84, 730 A.2d 1107 (concluding that exception was not satisfied when, among other reasons, declarant was not available for cross-examination), State v. Oquendo , supra, 223 Conn. at 668, 613 A.2d 1300 (same), and State v. Outlaw , 216 Conn. 492, 499, 582 A.2d 751 (1990) (same). Matias conceded in her statement that the lighting was too limited to make out any distinguishing features of the people at the scene. Matias was never subject to cross-examination to further explore her ability to properly observe the events that she reported or her ability to accurately hear the sounds and statements that she had reported (i.e., how far she was from the incident, whether she has any visual or hearing impairments, whether there were obstructions or distractions at the time). Cf. State v. Sharpe , supra, at 665, 491 A.2d 345 (citing, in addition to facts demonstrating that declarant was disinterested witness with no reason to make false statement to police regarding license plate number of strange car observed at victim neighbor's house, that declarant "was a witness at the trial and available for cross-examination as to his ability to perceive the license plate and whether he wrote the number down and related it accurately to [the police]"). Additionally, the evidence at trial not only failed to materially corroborate Matias' statement, it contradicted her statement in part. See, e.g., State v. McClendon , supra, 248 Conn. at 584, 730 A.2d 1107 (report unreliable for these reasons); State v. Heredia , 139 Conn.App. 319, 331, 55 A.3d 598 (2012) (offered testimony properly deemed unreliable when it "constituted hearsay within hearsay and was corroborated only by other hearsay statements rather than established facts"), cert. denied, 307 Conn. 952, 58 A.3d 975 (2013). None of the witnesses reported hearing any gunshots, and Brown's injuries were inflicted by a knife. Matias' report that a man in a yellow shirt was kneeling beside the victim stating, "Oh, I killed him. I killed him," was consistent with the other witnesses only insofar as they reported that Benjamin wore a yellow shirt as he knelt by Brown; no one reported that anyone had made statements remotely consistent with that statement or any others recounted by Matias. Given that Matias' report of this inculpatory statement constituted hearsay within hearsay, the lack of corroboration bore significantly on its indicia of reliability. See State v. Heredia , supra, at 331, 55 A.3d 598. Accordingly, the trial court did not abuse its discretion in concluding that Matias' statement was not imbued with guarantees of reliability and trustworthiness sufficient to support its admission under the residual exception. Because the trial court's evidentiary ruling was not improper, the defendant's claim of an infringement on his constitutional right to present a defense on this basis must fail. See State v. Davis , 298 Conn. 1, 11, 1 A.3d 76 (2010) ("[i]f . we conclude that the trial court properly excluded the proffered evidence, then the defendant's constitutional claims necessarily fail"). II The defendant next claims that the trial court infringed on his right to present a defense when it denied the admission of a statement made by Arroyo to defense counsel's investigator, offered as a prior inconsistent statement under State v. Whelan , 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986). The defendant asserts that the trial court improperly concluded that the statement to the investigator was (1) unreliable because it had been given to a person other than a police officer fourteen months after the murder occurred, and (2) not sufficiently inconsistent with Arroyo's testimony and her statement to the police. The state concedes that it was improper for the trial court to deny admission of Arroyo's statement to the investigator as unreliable, but asserts that it was proper to exclude it on the ground that it was not sufficiently inconsistent with her testimony. We agree with the state that the statement to the investigator was not sufficiently inconsistent to satisfy Whelan . The record reveals the following additional undisputed facts and procedural history. On the afternoon following the murder, Arroyo voluntarily came to the Meriden Police Department to be interviewed. Arroyo offered the following account in that interview, which was videotaped. Arroyo stated: "I walked in the bar with the guy . who did the stabbing; I was with him and his sister." She indicated that the defendant ended up arguing with Brown because Brown was telling Arroyo to stop hitting Benjamin, which prompted the defendant to urge Brown to "be cool." A crowd started to form and "five guys" surrounded the defendant, but they "backed away . [with] enough distance [such] that it was just [Brown], [Arroyo], and [the defendant]." Once Brown and the defendant started arguing face-to-face, Arroyo intervened, the defendant shoved her, and she fell to the ground. Although she saw no weapons, Arroyo said that the defendant was the closest person to Brown when he began stumbling. As she observed Brown collapse on the ground, Arroyo saw the defendant get into his car with his sister. She ran up to the car and asked the defendant, "What the hell did you do?" Despite Arroyo's subsequent reluctance to cooperate with the state, the state called her as a witness during its case-in-chief. In her trial testimony, Arroyo offered an account of the incident that departed substantively from her statement to the police. On direct examination, she testified that after her physical confrontation with Benjamin, she saw Brown surrounded by and arguing with several men. Arroyo testified that she then pushed Brown behind her, "telling the other guy to back up and don't even dare, because I don't know who the other guy was coming behind him." Once the crowd began to "move away," she saw Brown stumbling toward a car and then suddenly fall to his knees. She denied seeing Brown and the defendant engaged in any arguments or altercations, although she acknowledged that she got in between the two "to try to break things up." She also indicated that the defendant was not near Brown when he began stumbling, asserting that the defendant was already making his way to his car. Arroyo did not recall approaching the defendant after Brown fell to the ground. The state confronted Arroyo with inconsistencies between her testimony and the recorded statement she had given to the police the day after the murder. Arroyo admitted that she remembered going to the police station, but claimed that she had no recollection of what she had told the police officers because she had been intoxicated. She also testified that she had identified the defendant as the person who committed the murder because that was what she had "heard around the streets" and who the detectives were saying committed the murder. The state was then permitted, without objection, to introduce Arroyo's statement to the police as a prior inconsistent statement under Whelan . On cross-examination, Arroyo gave an account of the incident that tended to inculpate Benjamin or other unidentified third parties. Arroyo testified that Benjamin was outside the bar with a man wearing a red T-shirt when she arrived. Benjamin made "romantic passes" at Arroyo before he knew that Brown would be joining them. She saw Benjamin holding a "carrier knife." After Brown arrived, he "had a problem" with "[t]he guy at the juke box" who was wearing a red polo shirt. When Arroyo confronted Benjamin about bringing Brown to the bar, she overheard a "Spanish guy saying stuff in Spanish and people just arguing ." Arroyo then observed Brown arguing with four or five men, none of whom was the defendant. During the argument, Brown fell to the ground, got back up, and then started hyperventilating and "making fists." When another argument ensued, the defendant walked Arroyo away from the fight and stated that he was leaving. Turning back to the crowd, Arroyo saw Brown stumble and fall to the ground. Although Arroyo did not see who stabbed Brown, she denied that the defendant did it. She further testified that when Brown was bleeding out, she asked Benjamin for help but he walked away. On redirect, the state asked Arroyo why she had never told the police about "this alleged Spanish man" or "group of guys" with whom Brown was arguing. She testified that she was not lying when she told the police that the defendant was the person Brown stumbled away from because that was what she thought at the time. Arroyo stated that she realized one year later that the defendant did not stab Brown and that he was not the only person wearing a red shirt on the night of the murder. Thereafter, the defendant sought to admit a portion of the statement Arroyo gave to the investigator fourteen months after the homicide as a prior inconsistent statement under Whelan . The signed transcript of the relevant excerpt of that statement provides: "[Brown] was a little bit out of control because he even, like pushed me away to the ground because I seen another guy coming like behind him. So I grabbed him and pushed him toward me and told the guy don't even get involved. I didn't know who he was, I don't remember who he is, I know he was like Spanish looking but he could've just been a light skinned-he was light skinned. By this time everything was really crazy, I know I fell to the ground like twice. While down on the ground I don't know what happened, I know I remember seeing [Benjamin] screaming and, um, I remember [Brown] half fell to the ground. And when [Brown] was on the ground I seen [Benjamin] over him, I don't know what he was doing but after that Brown still got up and on my left I can see [the defendant] and his sister walking toward the car to leave, he was like, 'I'm out of here, I don't want to deal with this mess.' So he left. I was there now alone. I see [Brown] walking toward me . and he just . fell. He just fell to the floor ." Following the state's objection, the court ruled, inter alia, that the statement to the investigator was not sufficiently inconsistent with Arroyo's testimony to satisfy Whelan . The following principles guide our analysis of the defendant's claims. "In State v. Whelan , supra, 200 Conn. at 753, 513 A.2d 86... we adopted a hearsay exception allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination. This rule has also been codified in § 8-5(1) of the Connecticut Code of Evidence, which incorporates all of the developments and clarifications of the Whelan rule that have occurred since Whelan was decided." (Internal quotation marks omitted.) State v. Simpson , 286 Conn. 634, 641-42, 945 A.2d 449 (2008). "The admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan , is a matter within the . discretion of the trial court. . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court's ruling." (Citation omitted; internal quotation marks omitted.) State v. Pierre , 277 Conn. 42, 56, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S.Ct. 2873, 165 L.Ed.2d 904 (2006) ; see also State v. Bruno , 236 Conn. 514, 554, 673 A.2d 1117 (1996) (whether prior statement is in fact inconsistent is matter to be determined within trial court's discretion); State v. Whelan , supra, 200 Conn. at 748 n.4, 513 A.2d 86 (same). "In determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined.... Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement . A statement's inconsistency may be determined from the circumstances and is not limited to cases in which diametrically opposed assertions have been made." (Citations omitted; internal quotation marks omitted.) State v. Whelan , supra, 200 Conn. at 748-49 n.4, 513 A.2d 86. "Inconsistencies may be shown not only by contradictory statements, but also by omissions." Id., at 748 n.4, 513 A.2d 86 ; see also Falls v. Loew's Theatres, Inc. , 46 Conn.App. 610, 615, 700 A.2d 76 (1997). Finally, "the inconsistency must be substantial and relate to a material matter." State v. Piskorski , 177 Conn. 677, 710, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed. 2d 194 (1979), superseded by statute on other grounds as stated in State v. Canady , 187 Conn. 281, 283-84, 445 A.2d 895 (1982) ; accord State v. Christian , 267 Conn. 710, 756, 841 A.2d 1158 (2004), superseded by statute on other grounds as stated in State v. Davalloo , 320 Conn. 123, 140, 128 A.3d 492 (2016). Insofar as the defendant claims that the relevant comparison is between Arroyo's statement to the investigator and her statement to the police, he has cited no legal authority for the proposition that Whelan permits the admission of a statement that is inconsistent with another statement made by the declarant that was admitted pursuant to Whelan . To the contrary, we have always analyzed whether the prior statement is inconsistent with the declarant's testimony at trial. See State v. Whelan , supra, 200 Conn. at 748 n.4, 513 A.2d 86 ("[i]n determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined" [emphasis added] ). Moreover, the defendant's proposed application of Whelan would subvert long-standing rules regarding the limited admissibility of prior consistent statements. If, for example, the declarant's proffered prior statement is inconsistent with another prior statement previously admitted but is largely consistent with the declarant's trial testimony, admitting the former pursuant to Whelan would, in effect, be admitting a prior consistent statement for substantive purposes. "As a general rule, a witness' prior consistent statements are inadmissible at trial.... Such statements clearly are barred by the hearsay rule if sought to be used to prove the truth of the matters asserted therein ." (Citations omitted; internal quotation marks omitted.) State v. Valentine , 240 Conn. 395, 412, 692 A.2d 727 (1997) ; accord Conn. Code Evid. § 6-11(a). Even when a prior consistent statement is admitted under an exception to the general rule, the statement is admitted to affect credibility only and not to establish its truth. State v. Valentine , supra, at 413, 692 A.2d 727. Thus, the trial court properly limited its comparison to Arroyo's testimony at trial in determining if her statement to the investigator was sufficiently inconsistent to permit its admission pursuant to Whelan . We consider in turn the inconsistencies identified by the defendant to the trial court as the basis for the admission of Arroyo's statement to the investigator. The defendant identified Brown's behavior as one such inconsistency. In her statement to the investigator, Arroyo described him as "a little bit out of control ." In her trial testimony, Arroyo acknowledged that she had expressed a concern about Brown getting into trouble if he came to the bar because he had been drinking. Arroyo testified that after Brown arrived, he became upset with a man standing near the juke box and engaged in arguments with both Benjamin and a group of men. Finally, according to Arroyo, after Brown got up from the ground amid his argument with the group of men, he was hyperventilating and "making fists." Thus, we conclude that the statement to the investigator was not materially inconsistent with Arroyo's testimony on this matter. The defendant also identified Arroyo's description of the location of a "light skinned," "Spanish looking" man. In her statement to the investigator, Arroyo indicated that a man with those features came up behind Brown, at which point she "grabbed [Brown] and pushed him toward [her] and told the guy don't even get involved." At trial, Arroyo testified that she heard a "Spanish guy saying stuff in Spanish and people just arguing" right before she observed Brown arguing with four or five men. She further testified that she "remember[ed] pushing [Brown] behind [her] and telling the other guy to back up and don't even dare, because [she did not] know who the other guy was coming behind him." On redirect, she acknowledged that Brown had gotten into an argument with a Spanish man. Although there are a few nonmaterial distinctions, there is not a material inconsistency with regard to this aspect of her statement to the investigator. The defendant also pointed to Arroyo's description of Benjamin's behavior at or near the time of the stabbing. In her statement to the investigator, Arroyo described Benjamin as "screaming" near Brown, Brown "half" falling to the ground, and Benjamin standing over Brown before Brown initially got up. Arroyo did not identify where Benjamin was after Brown got up. Arroyo did not testify to any of these facts at trial. Nevertheless, we do not agree that this omission alone required admission of the statement to the investigator. First, it is unclear what significance this portion of Arroyo's statement to the investigator has to determining whether the defendant or another person committed the murder. See State v. Piskorski , supra, 177 Conn. at 710, 419 A.2d 866 ("inconsistency must be substantial and relate to a material matter"). It does not tend to establish that Benjamin had caused Brown to fall to the ground, or more importantly, that Benjamin was next to Brown when he was stabbed and fell the final time. Second, Arroyo's statement to the investigator was not inconsistent with her testimony that several people were standing next to Brown before he was stabbed. Although her testimony did not indicate who was there, she testified that the defendant was not one of them. Consequently, the overarching effect of her testimony and her statement to the investigator was the same-although she did not know who stabbed Brown, she was certain that the defendant was not in Brown's vicinity when it occurred and, therefore, could not have stabbed him. Finally, to the extent defense counsel asserts that Arroyo's statement to the investigator "critically" noted that Benjamin was trying to hit on her prior to Brown's arrival at the bar, that portion of Arroyo's statement was not included in the proffer to the trial court. See footnote 5 of this opinion. In any event, because Arroyo testified that Benjamin was making "romantic passes" at her, that part of her statement was not inconsistent with her testimony. On the basis of the foregoing, we conclude that the trial court did not abuse its discretion in deeming Arroyo's statement to the investigator insufficiently inconsistent with her trial testimony to be admitted pursuant to Whelan . Accordingly, the defendant's claim that the failure to admit this statement violated his right to present a defense necessarily fails. See State v. Davis , supra, 298 Conn. at 11, 1 A.3d 76. III The defendant next claims that the trial court abused its discretion in failing to disclose the personnel files of several police officers who were involved in the murder investigation and who testified at trial. Specifically, the defendant contends that the trial court abused its discretion in concluding, after reviewing the confidential records in camera, that no information contained therein was probative of those officers' ability to know and correctly relate the truth. Our review of the record reveals, however, that the defendant misconstrues the basis of the trial court's decision. The trial court concluded that an in camera review was not warranted because the defendant had failed to make the requisite preliminary showing that the records would shed some light on the officers' ability to testify truthfully. The defendant has not challenged the trial court's conclusion that he failed to meet this preliminary burden for in camera review. Accordingly, the defendant is not entitled to review of this claim. IV The defendant also claims that the trial court improperly limited his cross-examination of Officer Constantina Benzi of the Meriden Police Department concerning the defendant's past interactions with that police department that may have biased Benzi or other police witnesses against the defendant. We disagree. At trial, Benzi testified that on the morning after the murder, Arroyo entered the Meriden police station while Benzi was working at the front desk. She further testified that Arroyo gave her a photograph and identified the person therein as the defendant's sister, which in turn prompted Benzi to put Arroyo in contact with one of the detectives working on the investigation. Benzi had no other involvement with the case, and Arroyo corroborated Benzi's testimony. Prior to Benzi's cross-examination, defense counsel informed the court that he intended to question Benzi about a complaint, later deemed unsubstantiated, that the defendant had filed against Benzi three years before the murder regarding her response to a complaint of dog fighting in the defendant's yard that ultimately resulted in an injury to one of the dogs. The trial court allowed defense counsel to inquire on cross-examination whether Benzi was biased against the defendant, but denied counsel's request to inquire whether other police officers were aware of the complaint from news coverage, or otherwise, on the ground that those inquiries were not relevant to establish the bias of other officers. We conclude that the trial court did not abuse its discretion in limiting cross-examination of Benzi. Neither the existence of the complaint nor its publication gave rise to a reasonable factual basis to inquire of Benzi whether a department wide bias against the defendant existed. See, e.g., State v. Isabelle , 107 Conn.App. 597, 607, 946 A.2d 266 (2008) (explaining proffering party's obligation to establish relevancy of impeachment evidence by laying proper foundation, and noting that "[n]one of the evidence in the defendant's proffer, or in the record as a whole, provided a factual basis to conclude that a [department wide] bias against the defendant had existed among the Bethel police, and the defendant failed to state a good faith belief that such bias had existed"). Moreover, the introduction of such testimony potentially would have confused the issues of the case, creating a trial within a trial on the collateral issue of the propriety of Benzi discharging her firearm during the incident. See id. ("[i]t is a reasonable exercise of judicial discretion to exclude . evidence the relevancy of which appears to be so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case" [internal quotation marks omitted] ). V The defendant next claims that the trial court improperly denied his request for an evidentiary hearing on his motion for permission to file a late motion for a new trial. We disagree. On June 29, 2011, the jury returned its verdict. In August, 2011, the defendant filed a motion for permission to file a late motion for a new trial on the basis of a report issued by the National Institute of Justice and National Forensic Science Technology Center on July 13, 2011. That report was issued after an external audit was conducted of the state forensic science laboratory on July 11 through July 13, 2011, which concluded, among other findings, that the state laboratory was not using "validated methods for DNA analyses." The defendant argued that he properly sought relief via a motion for a new trial, not a petition for a new trial, because the results of the external audit constituted "recently disclosed," not newly discovered, evidence. Counsel then requested an evidentiary hearing on this matter, asserting that "[t]here's been several reports out there that information was disclosed to the state's [a]ttorney's office [and] the governor's office" before the verdict was returned. The trial court declined to order an evidentiary hearing, denying the motion on the ground that the report of the audit results constituted newly discovered evidence that must be presented by way of a petition for a new trial pursuant to Practice Book § 42-55. Initially, we reject the defendant's attempt to recast his claim on appeal as a violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See id., at 87, 83 S.Ct. 1194 (requiring new trial if state fails to disclose material exculpatory evidence). The defendant neither raised a Brady claim in his motion for a new trial nor advanced it at oral argument on the motion. The defendant also has not briefed a Brady claim as an unpreserved issue under Golding . Accordingly, we review the trial court's denial of the defendant's request for an evidentiary hearing for an abuse of discretion. See State v. Nguyen , 253 Conn. 639, 653, 756 A.2d 833 (2000). We discern no error in the trial court's conclusion that the defendant's purported offer of proof was insufficient to trigger the need for an evidentiary hearing. The defendant sought a new trial on the basis of the issuance of a report containing findings made from an audit, all of which occurred after the verdict was returned, not on the basis of the state's purported knowledge during trial that an external audit was going to be conducted. Indeed, nothing in the report indicates that the procedural defects identified therein were known or suspected at the time of trial. Accordingly, once the court properly concluded that the external audit results constituted newly discovered evidence, it lacked authority to consider the relief sought by the defendant in his motion pursuant to Practice Book § 42-53. See generally State v. Gonzalez , 106 Conn.App. 238, 261-62, 941 A.2d 989 (distinguishing procedures required to initiate petition for new trial from those for motion for new trial), cert. denied, 287 Conn. 903, 947 A.2d 343 (2008). VI Finally, we address the defendant's claim that prosecutorial improprieties in cross-examination and closing arguments deprived him of a fair trial. Having undergone a thorough review of the record in light of the parties' arguments, we conclude that only one of the defendant's claimed improprieties merits discussion. Specifically, the defendant contends that the prosecutor's closing argument improperly characterized defense counsel's strategy in a manner suggesting that he was attempting to mislead the jury. The state acknowledges that the comments identified are similar to ones that we deemed improper in State v. Albino , 312 Conn. 763, 776-78, 97 A.3d 478 (2014), but nevertheless argues that the circumstances are distinguishable. We agree with the state and take this opportunity to explain the distinction. The record reveals the following additional facts. Two police officers watched over the defendant's vehicle while a warrant was being procured to search it. The defendant elicited testimony from the mother of several of his children that she had observed those two police officers open the door and enter the vehicle before the warrant was issued. The defendant attempted to use this testimony to support his theory that the police officers had planted the knife thumb studs in his vehicle. In her rebuttal argument, the prosecutor described this evidence as "just another thing to throw at you [the jury] in a case where the evidence against the defendant is overwhelming." She added: "Do you notice those detectives that sat on the car were never asked about that when they were on the stand. Now, if there were really, really something you want to air out and get out in the open, wouldn't you vigorously go after them? Not if you don't want to hear the answer. You want to be able to boom, pop it on the jury and see what sticks ." (Emphasis added.) It is well settled that "the prosecutor, as a public official seeking impartial justice on behalf of the people of this state, has a heightened duty to avoid argument [or questioning] that strays from the evidence or diverts the jury's attention from the facts of the case." (Internal quotation marks omitted.) State v. Albino , supra, 312 Conn. at 772, 97 A.3d 478. Nonetheless, "in evaluating claims of impropriety during summation, we recognize that the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered ." (Internal quotation marks omitted.) State v. O'Brien-Veader , 318 Conn. 514, 548, 122 A.3d 555 (2015). "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. . Moreover, [i]t does not follow . that every use of rhetorical language or device [by the prosecutor] is improper.... The occasional use of rhetorical devices is simply fair argument." (Internal quotation marks omitted.) State v. Ciullo , 314 Conn. 28, 37, 100 A.3d 779 (2014). In Albino , we concluded that the prosecutor improperly had characterized defense counsel's strategy in a manner to suggest that he employed tactics intended to mislead the jury by (1) analogizing the strategy to an octopus' defense mechanism of shooting ink into the water to attempt to muddy the waters, and (2) referring to the strategy as a " 'shotgun approach. You shoot it against the wall and you hope that something will stick.' " State v. Albino , supra, 312 Conn. at 776-77, 97 A.3d 478. Notably, in deeming the argument improper, we focused principally on the first comment and noted its similarity in effect to language we deemed improper in State v. Maguire , 310 Conn. 535, 557, 78 A.3d 828 (2013), in which the prosecutor described the defense strategy as using "smoke and mirrors." State v. Albino , supra, at 777-78, 97 A.3d 478. In Maguire , that phrase, like the improper octopus analogy, "was compounded by, inter alia, statements that defense counsel . had attempted to sidetrack the jury through misdirection and by all of the stuff that he tried to throw against the wall during his closing remarks to the jury." (Internal quotation marks omitted.) Id., at 778, 97 A.3d 478. We underscored that there is a distinction between improper argument that disparages the integrity or role of defense counsel and proper argument that disparages a theory of defense. See id., at 776, 97 A.3d 478, citing State v. Orellana , 89 Conn.App. 71, 101, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005). The comments we deemed improper in Albino and Maguire fell into the former category, constituting a broad disparagement of the defense strategy untethered to any specific facts or evidence. Conversely, in the present case, the prosecutor's comment did not imply that defense counsel had employed some artifice to deceive the jury. Rather, the prosecutor's statements were directed at evidence that the defendant claimed lent support to his theory that the officers had planted the thumb studs. It was fair argument for the prosecutor to point out, albeit with rhetorical flourish, that defense counsel had declined to question the officers about their conduct because such questioning might have yielded testimony that contradicted his witness or otherwise undermined his theory. The judgment is affirmed. In this opinion the other justices concurred. The defendant has asserted various claims under both the state and federal constitutions, but he has not provided an independent analysis of the former in accordance with State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992). Therefore, we deem abandoned any state constitutional claims. See, e.g., Barros v. Barros, 309 Conn. 499, 507 n.9, 72 A.3d 367 (2013) ("we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue" [internal quotation marks omitted] ). The parties stipulated that the failure to preserve the 911 call was due to the fact that the Meriden Police Department's telephone monitoring system had suffered "a complete shutdown" for several days, including the night of the murder, causing the loss of recordings for all incoming and outgoing calls. It is evident that the defendant meant General Statutes § 54-82j, not § 54-84j, a point that the trial court later clarified. General Statutes § 54-82i(c) provides in relevant part: "If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions . is a material witness in a prosecution pending in a court of record in this state . a judge of such court may issue a certificate under the seal of the court, stating such facts and specifying the number of days the witness will be required. Such certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure the attendance of the witness in this state. Such certificate shall be presented to a judge of a court of record in the judicial district in which the witness is found...." Puerto Rico has adopted a reciprocal statute allowing for the summoning of witnesses to testify in another state or territory in pending criminal prosecutions. See P.R. Laws Ann. tit. 34, § 1471 (2016). General Statutes § 54-82j provides in relevant part: "Upon the written complaint of any state's attorney addressed to the clerk of the superior court for the judicial district wherein such state's attorney resides, alleging (1) that a person named therein is or will be a material witness in a criminal proceeding then pending before or returnable to the superior court for such judicial district, and in which proceeding any person is or may be charged with an offense punishable by death or imprisonment for more than one year, and (2) that the state's attorney believes that such witness is likely to disappear from the state, secrete himself or otherwise avoid the service of subpoena upon him, or refuse or fail to appear and attend in and before such superior court as a witness, when desired, the clerk or any assistant clerk of the court shall issue a warrant addressed to any proper officer or indifferent person, for the arrest of the person named as a witness, and directing that such person be forthwith brought before any judge of the superior court for such judicial district, for examination. ." The defendant argues for the first time in his reply brief that the entire statement to the investigator was offered to contradict Arroyo's testimony regarding Benjamin's behavior. The record is clearly to the contrary. Defense counsel specifically requested "a portion" of that statement be admitted under Whelan, and identified the beginning and ending points of the portion of that statement that he sought to be admitted: "[T]he sixth line down, beginning [Brown] was a little bit out of control. I'm claiming down to the end of that answer in response where [she] says he just fell on the floor."

12489134

Jason MILLER v. COMMISSIONER OF CORRECTION

Miller v. Comm'r of Corr.

2017-02-17

No. 38086

1282

1282

155 A.3d 1282

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Jason MILLER v. COMMISSIONER OF CORRECTION

Jason MILLER v. COMMISSIONER OF CORRECTION No. 38086 Appellate Court of Connecticut. Submitted on briefs February 17, 2017 Officially released March 14, 2017

29

195

Per Curiam. The appeal is dismissed.

12489133

Richard A. LEGG v. Eileen RYAN

Legg v. Ryan

2017-02-17

No. 38951

1282

1282

155 A.3d 1282

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Richard A. LEGG v. Eileen RYAN

Richard A. LEGG v. Eileen RYAN No. 38951 Appellate Court of Connecticut. Submitted on briefs February 17, 2017 Officially released March 14, 2017

29

184

Per Curiam. The judgment is affirmed.

12489132

Earl AKPAN v. COMMISSIONER OF CORRECTION

Akpan v. Comm'r of Corr.

2017-02-17

No. 38589

1282

1282

155 A.3d 1282

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

Earl AKPAN v. COMMISSIONER OF CORRECTION

Earl AKPAN v. COMMISSIONER OF CORRECTION No. 38589 Appellate Court of Connecticut. Submitted on briefs February 17, 2017 Officially released March 14, 2017

29

194

Per Curiam. The judgment is affirmed.

12489117

AMARAL BROTHERS, INC. v. DEPARTMENT OF LABOR

Amaral Bros., Inc. v. Dep't of Labor

2017-04-04

SC 19622

1255

1268

155 A.3d 1255

155

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

AMARAL BROTHERS, INC. v. DEPARTMENT OF LABOR

AMARAL BROTHERS, INC. v. DEPARTMENT OF LABOR SC 19622 Supreme Court of Connecticut. Argued December 12, 2016 Officially released April 4, 2017 Melinda A. Powell, with whom was Robin B. Kallor, for the appellant (plaintiff). Gregory T. D'Auria, solicitor general, with whom were Krista D. O'Brien and Thomas P. Clifford III, assistant attorneys general, and, on the brief, George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (defendant). Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

7697

49123

McDONALD, J. General Statutes § 31-60 (b) carves out certain exceptions to Connecticut's minimum wage laws. Among other things, § 31-60 (b) directs the Labor Commissioner, acting through the defendant, the Department of Labor, to adopt regulations that recognize that employers may include gratuities as part of the minimum fair wage for employees in the restaurant and hotel industries who customarily and regularly receive gratuities (tip credit). The primary question raised by this appeal is whether the department's regulations, which limit the tip credit to bartenders and traditional waitstaff and do not allow employers to count gratuities toward the minimum wage for other employees such as restaurant delivery drivers, conflict with the enabling statute. Because we conclude that the regulations are not incompatible with § 31-60 (b), we affirm the judgment of the trial court dismissing the appeal of the plaintiff, Amaral Brothers, Inc., from the commissioner's declaratory ruling that the plaintiff's drivers are not subject to a tip credit. The following undisputed facts and procedural history are relevant to our disposition of this appeal. The plaintiff is a Connecticut corporation that operates Domino's pizza franchises in Groton and Mystic. The plaintiff employs approximately forty drivers who deliver food items to customers' homes. The drivers own and maintain their vehicles, but the plaintiff reimburses them for travel expenses. The drivers commonly receive gratuities from customers and are required to report their gratuities on an electronic system that the plaintiff maintains. In 2013, the plaintiff filed a petition for a declaratory ruling with the commissioner seeking a determination that it could pay a reduced minimum wage to its delivery drivers because they regularly receive gratuities that, on average, result in the drivers earning in excess of the minimum wage. The plaintiff relied on § 31-60 (b), which provides in relevant part that the commissioner "shall adopt such regulations . as may be appropriate to carry out the purposes of this part. Such regulations . shall recognize, as part of the minimum fair wage, gratuities in an amount . equal to [a] per cent of the minimum fair wage per hour for persons, other than bartenders, who are employed in the hotel and restaurant industry . who customarily and regularly receive gratuities ." The plaintiff also challenged the validity and application of department regulations that distinguish between service employees, for whom restaurant industry employers can apply a tip credit and pay the reduced minimum wage, and nonservice employees, who must receive the full minimum wage. See Regs., Conn. State Agencies § 31-62-E1 through 31-62-E4. The commissioner issued a declaratory ruling finding that the exclusion of restaurant employees other than waitstaff from the application of the tip credit regulations was valid. The commissioner observed, among other things, that (1) the regulations had been the subject of prior unsuccessful legal challenges, and (2) the regulations are consistent with the notion that the minimum wage law is a remedial statute that should receive a liberal construction to accomplish its purpose of ensuring the payment of fair and just wages. The commissioner also noted that exceptions to rules such as the minimum wage requirement must be narrowly construed and that a petitioner seeking to declare an administrative regulation invalid bears a heavy burden. Having determined that the department's tip credit regulations did not contravene the enabling statute and were not arbitrary or invalid, the commissioner then considered the question whether delivery drivers satisfy the regulatory definition of restaurant service employees for whom a credit may be taken. In relevant part, the regulations define a service employee as "any employee whose duties relate solely to the serving of food and/ or beverages to patrons seated at tables or booths, and to the performance of duties incidental to such service, and who customarily receives gratuities. ." Regs., Conn. State Agencies § 31-62-E2 (c). The commissioner determined that the plaintiff's delivery drivers perform various on the road duties that fail to satisfy this definition in two respects: "While the drivers are clearly not delivering food to patrons [sitting] at tables or booths, the [department] finds that the regulation is inapplicable primarily because the majority of the specific duties performed by the drivers do not relate solely to the serving of food . and to the performance of duties incidental to such service . within the meaning of the regulation." (Emphasis in original; footnote omitted; internal quotation marks omitted.) The commissioner rejected the plaintiff's theory that a driver transporting pizza from a Domino's restaurant to a customer's location is comparable to a server carrying food from a restaurant kitchen to a customer's table. Rather, she found that "only the solitary act of transferring possession of food from a driver's vehicle to a customer at the doorway of a home is analogous to . [the] serving of food ." (Internal quotation marks omitted.) Drivers' other on the road duties-everything from driving and navigating to vehicle and license maintenance to remote communications with the employer-were deemed to be materially different from the service functions performed by traditional waitstaff while serving food to patrons within the confines of a restaurant. The commissioner also found that pizza delivery drivers differ from traditional waitstaff in ways that may impair their capacity to earn gratuities. For example, drivers do not have an opportunity to establish a rapport with customers by taking the initial order, providing status updates, checking periodically on customer satisfaction and needs, or cleaning the service area. Rather, the sole interaction with the customer is the brief exchange of food and payment at the time of delivery. Noting that "the interaction between the driver and the customer is minimal in duration and quality," the commissioner concluded that "the [on the road] functions possess none of the characteristics customarily associated with the complement of services provided by waitstaff in a restaurant." Finally, the commissioner found relevant the fact that, whereas the waitstaff has the opportunity to earn gratuities continuously by servicing multiple tables at once, a delivery driver can earn gratuities from at most one customer at a time and must frequently return to the restaurant for additional assignments, during which time no gratuities can be earned. Consistent with these findings, the commissioner concluded that there is a rational basis for distinguishing between delivery drivers and restaurant service employees and, therefore, declined to invalidate the department's regulations as applied to the plaintiff. The commissioner also declined the plaintiff's request to amend the regulations or to promulgate new ones. As a result of the ruling, the plaintiff is unable to take a tip credit and pay its drivers a reduced minimum wage. The plaintiff took an administrative appeal of the commissioner's decision to the trial court pursuant to General Statutes § 4-183. The plaintiff claimed that the department acted in an arbitrary and capricious manner and abused its discretion by, among other things: (1) adopting regulations that distinguish between service and nonservice duties in a manner that is not authorized by, and is inconsistent with, the enabling statute, § 31-60 (b) ; (2) concluding that a driver is only performing service related duties during the time that he or she leaves his or her vehicle to walk the food to the customer's door; and (3) making findings as to the nature of food delivery versus waitstaff work that were not supported by the record. The court, Schuman, J. , concluded that the challenged regulations are valid and that the plaintiff's drivers do not satisfy the regulatory definition of service employees. Accordingly, the court affirmed the decision of the commissioner and dismissed the plaintiff's appeal. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. On appeal, the plaintiff contends that the department's tip credit regulations, as applied to the plaintiff's delivery drivers, are not authorized by § 31-60 (b), and that the trial court should not have deferred to the department's interpretation of the statute. We affirm the judgment of the trial court dismissing the plaintiff's administrative appeal. In most instances, the party challenging the validity of an administrative regulation claims that the regulation was inconsistent with an authorizing statute or beyond the legislature's grant of authority to the agency at the time the regulation was issued . Dugas v. Lum bermens Mutual Casualty Co. , 217 Conn. 631, 640, 587 A.2d 415 (1991). The present case is different. Here, the plaintiff concedes that the relevant regulations; Regs., Conn. State Agencies § 31-62-E1 et seq. ; were valid when the department first promulgated them but contends, in essence, that they were repealed by implication by a subsequent amendment of the enabling statute. We thus begin our analysis by reviewing the history of Connecticut's tip credit laws. The distinction between service and nonservice restaurant employees, as well as the rule that the former can be paid a lower minimum wage than the latter, traces its origins to regulations adopted by the former Department of Labor and Factory Inspection in 1950, before the legislature had authorized a formal tip credit. See Dept. of Labor and Factory Inspection, Mandatory Order No. 4A, § 180-6-1, 16 Conn. L.J., No. 73, p. 5 (March 28, 1950) (establishing minimum wages for women and minors employed as service and nonservice employees in restaurant occupations). Those regulations defined a service employee as "any employee whose duties relate solely to the serving of food and/or beverage to patrons seated at tables or booths, and to the performance of duties incidental to such service, and who customarily receives gratuities." Id., § 180-6-13, p. 6. A nonservice employee, by contrast, was defined as "an employee other than a service employee, as herein defined. A non-service employee shall include, but is not limited to, countergirls, counter-waitresses and those employees serving food or beverage to patrons seated at tables or booths and who do not customarily receive gratuities ." Id., § 180-6-14. With respect to diversified employment involving both service and nonservice work, the regulations provided that "[i]f service and non-service duties of an employee are interchanged, and the duties are definitely segregated and recorded, the appropriate hourly rate . for each type of work may be used. If service and non-service duties are interchanged, but cannot be definitely segregated or are not recorded, the nonservice rate is to be applied ." Id., § 180-6-1 (c), p. 5. At that time, the minimum wage was forty-five cents per hour for service employees and seventy cents for nonservice employees and those engaged in diversified employment. Id., § 180-6-1. Finally, the regulations provided that "[i]n no event shall gratuities from patrons be counted as part of the minimum wage." Id. This last rule presumably reflected the fact that gratuities were already accounted for by the fact that service employees were subject to a lower minimum wage than their nonservice counterparts. The following year, the legislature enacted the state's first minimum wage statute. See General Statutes (Supp. 1951) § 838b. That statute authorized the commissioner to "make such administrative regulations as may be appropriate to carry out the purposes of [the] chapter" and to "provide, in such regulations, modifications of the minimum fair wage . for such special cases or classes of cases as the commissioner may find appropriate to prevent curtailment of employment opportunities, avoid undue hardship and safeguard the minimum fair wage ." General Statutes (Supp. 1951) § 838b (b). Notably, the statute provided that the department's minimum wage regulations "may recognize as part of the minimum fair wage . gratuities ." (Emphasis added.) General Statutes (Supp. 1951) § 838b (b). Accordingly, the statute initially permitted but did not require the department to recognize a tip credit against the minimum wage. General Statutes (Supp. 1951) § 839b further provided that the department's wage orders then in effect, which presumably would have included Mandatory Order Nos. 4A and 4B, would remain in full force other than as modified by the act. In 1958, consistent with the authorization provided by General Statutes (Supp. 1951) § 838b, the department issued a revised wage order for restaurant employees that for the first time recognized that gratuities could count toward the minimum wage under certain circumstances. See Labor Dept., Mandatory Order No. 8, 21 Conn. L.J., No. 30, pp. 5-8 (November 25, 1958). The 1958 wage order contained definitions of service and nonservice restaurant employees that were similar to those included in Mandatory Orders Nos. 4A and 4B and that are substantially identical to those presently contained in § 31-62-E2 (c) and (d) of the Regulations of Connecticut State Agencies. It also provided that "[g]ratuities received by a service employee may be allowed as part of the minimum fair wage ." Emphasis added.) Mandatory Order No. 8, § 180-12-1, supra, 21 Conn. L.J., p. 5. Finally, it retained the diversified employment rule from the 1950 regulations, using language that is substantially identical to that presently contained in § 31-62-E4 of the Regulations of Connecticut State Agencies. While the department has retained its tip credit regulations without material amendment since 1958, the legislature has amended the enabling statute, § 31-60 (b), on multiple occasions since that time. Although most of those amendments simply raised the minimum wage for restaurant employees or changed the method of calculating the tip credit, two changes are noteworthy for the purposes of this appeal. First, in 1980, the legislature replaced the discretionary phrase "[the commissioner] may recognize, as part of the minimum fair wage, gratuities . for persons employed in the hotel and restaurant industry"; (emphasis added) General Statutes (Rev. to 1979) § 31-60 (b) ; with the mandatory language "[the commissioner] shall recognize ." (Emphasis added.) Public Acts 1980, No. 80-64, § 1 (P.A. 80-64). Second, in 2000, the legislature amended General Statutes (Rev. to 1999) § 31-60 (b) to provide one minimum wage for persons employed in the hotel and restaurant industry who customarily and regularly receive gratuities, and a different minimum wage for bartenders, who were referenced for the first time in the statute. See Public Acts 2000, No. 00-144, § 2 (P.A. 00-144). Following several additional amendments, the statute currently provides in relevant part: "The [commissioner] shall adopt such regulations . [that] shall recognize, as part of the minimum fair wage, gratuities in an amount . equal to [a] per cent of the minimum fair wage per hour for persons, other than bartenders, who are employed in the hotel and restaurant industry, including a hotel restaurant, who customarily and regularly receive gratuities ." General Statutes § 31-60 (b) (1). The plaintiff claims that, in its present form, § 31-60 (b) requires the commissioner to issue regulations that permit a tip credit to be taken for all restaurant employees who customarily and regularly receive gratuities and, therefore, is incompatible with and must be understood to have repealed by implication the post-1958 regulations that limit the tip credit to service employees. We begin our analysis of the plaintiff's claim by setting forth the standards governing judicial review of an agency decision under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq.General Statutes § 4-183 (j) provides in relevant part that "[t]he court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. ." "Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable." (Internal quotation marks omitted.) Dolgner v. Alander , 237 Conn. 272, 280, 676 A.2d 865 (1996). Additional principles come into play, however, when an agency's interpretation of a statute is embodied in an administrative regulation. Velez v. Commissioner of Labor , 306 Conn. 475, 485, 50 A.3d 869 (2012). In Dugas , we considered a similar claim that a statutory amendment had repealed by implication a preexisting regulation. See Dugas v. Lumbermens Mutual Casualty Co. , supra, 217 Conn. at 631, 587 A.2d 415. In that case, the issue was whether an uninsured motorist regulation adopted in 1975 had been repealed by implication in 1980, when the legislature amended a related statute. Id., at 638-39, 587 A.2d 415. In concluding that the amended statute had not repealed by implication the preexisting regulation, this court looked to four primary considerations. Id., at 641-48, 587 A.2d 415. First, this court relied on the well established rule that regulations issued by an administrative agency are presumed to be valid and have the same force and effect as a statute. Id., at 641, 587 A.2d 415 ; see also Velez v. Commissioner of Labor , supra, 306 Conn. at 485, 50 A.3d 869. For this reason, we explained, "the rule disfavoring the implied repeal of a statute by the subsequent enactment of another statute also applies to the implied repeal of a regulation by a statute ." Dugas v. Lumbermens Mutual Casualty Co. , supra, 217 Conn. at 641, 587 A.2d 415 ; accord Lumbermens Mutual Casualty Co. v. Huntley , 223 Conn. 22, 30 n.11, 610 A.2d 1292 (1992). We also relied on the principle that "a state statute should be construed as having preempted a local ordinance only when the legislature has demonstrated its intent to regulate the entire field or when the ordinance is in irreconcilable conflict with the statute." Dugas v. Lumbermens Mutual Casualty Co. , supra, at 641 n.11, 587 A.2d 415. We thus proceeded on the assumption that if a statute and a regulation are potentially in conflict but can reasonably be read to be consistent with each other, the court should construe them so as to give effect to both. See id., at 641, 587 A.2d 415. Second, we recognized that "[i]f a regulation has been in existence for a substantial period of time and the legislature has not sought to override the regulation, this fact, although not determinative, provides persuasive evidence of the continued validity of the regulation." Id., at 642, 587 A.2d 415. In Dugas , in reviewing the evolution of the statutory scheme at issue, we found significant evidence of legislative acquiescence. Specifically, the legislature had amended the authorizing statute six times over the course of a decade without ever expressly preempting the regulation at issue. Id. Third, we noted that "[i]n the construction of statutes, great deference is to be accorded to the construction given the statute by the agency charged with its enforcement." (Internal quotation marks omitted.) Id., at 643, 587 A.2d 415. Noting that the Insurance Commissioner has a "very broad grant of regulatory authority in filling in the interstices of the uninsured and underinsured motorist coverage legislation," we thus credited the Insurance Commissioner's determination that the regulation and statute at issue were not incompatible. (Internal quotation marks omitted.) Id. Fourth, in Dugas this court identified as a "critical factor" the fact that the public policy underlying the statutory amendment was fully compatible with continued enforcement of the preexisting regulation. Id., at 643-44, 587 A.2d 415. Concluding that the plain language of the statute did not require abrogation of the regulation, we reviewed the legislative history of the statutory amendment and found no indication that the legislature had intended to repeal the regulation thereby. Id., at 644-47, 587 A.2d 415. Turning our attention to the present case, we conclude that each of the Dugas factors counsels in favor of deference to the department's interpretation of § 31-60 (b) and supports the conclusion of the trial court that the 1980 amendment thereto did not repeal by implication the department's long-standing tip credit regulations. See P.A. 80-64. First, with respect to the presumptive validity of regulations that do not conflict irreconcilably with a statute, we agree with the department that § 31-60 (b), as amended, need not be read to conflict with § 31-62-E1 et seq. of the Regulations of Connecticut State Agencies. Those regulations (1) draw a distinction between service and nonservice employees, (2) disallow a tip credit for nonservice employees, and (3) provide that restaurant employees who engage in both service and nonservice duties may be subject to a tip credit on the service portion, but only insofar as time spent on the two types of duties is properly segmented and recorded. The statute, by contrast, simply requires that the commissioner adopt regulations that "recognize, as part of the minimum fair wage, gratuities . for persons, other than bartenders, who are employed in the hotel and restaurant industry . who customarily and regularly receive gratuities ." General Statutes § 31-60 (b). We have explained that a regulation that "properly subjects what the legislature has authorized to additional requirements" does not thereby "forbid that which the legislature has expressly authorized." (Internal quotation marks omitted.) Rocky Hill v. SecureCare Realty, LLC , 315 Conn. 265, 297, 105 A.3d 857 (2015) ; accord Phelps Dodge Copper Products Co. v. Groppo , 204 Conn. 122, 135, 527 A.2d 672 (1987) ; Ahearn v. Inland Wetlands Agency-Conservation Commission , 34 Conn.App. 385, 392, 641 A.2d 812, cert. denied, 230 Conn. 911, 645 A.2d 1015 (1994). Here, § 31-60 (b) does not expressly abrogate or even address the department's long-standing distinction between service and nonservice work. The statute does not expressly require that the tip credit be made available for all restaurant workers who customarily and regularly earn gratuities. Accord State v. White , 204 Conn. 410, 422, 528 A.2d 811 (1987). Nor does it spell out exactly how the tip credit is to be applied to employees who spend only part of their workday engaged in duties that customarily and regularly provide the opportunity to earn gratuities. Accordingly, it was reasonable for the department to conclude that the legislature did not intend that employees such as delivery drivers, who have the potential to earn gratuities during only a small portion of their workday, would be subject to a reduction in their minimum wage with respect to time spent traveling to a customer's home and other duties for which they do not earn gratuities. Moreover, the statutory language reasonably can be read to delegate to the department the authority to carve out exceptions to the tip credit in order to accomplish the remedial purpose of the minimum wage law, which is to "require the payment of fair and just wages." West v. Egan , 142 Conn. 437, 442, 115 A.2d 322 (1955). Section 31-60 (b) begins by authorizing the commissioner to "adopt such regulations . as may be appropriate to carry out the purposes of [the minimum wage statutes]." It concludes by providing that "[t]he commissioner may provide, in such regulations, modifications of the minimum fair wage herein established . for such special cases or classes of cases as the commissioner finds appropriate to prevent curtailment of employment opportunities, avoid undue hardship and safeguard the minimum fair wage herein established. ." General Statutes § 31-60 (b). Accordingly, we conclude that it is at least ambiguous whether the legislature, in amending § 31-60 (b) in 1980, intended to repeal the department's long-standing distinction between service and nonservice workers and to revoke the department's discretion to carve out appropriate exceptions to the tip credit. In light of this ambiguity, Dugas counsels that we should attempt to construe the statute and the regulation so as to give effect to both. See Dugas v. Lumbermens Mutual Casualty Co. , supra, 217 Conn. at 641, 587 A.2d 415. The department's resolution of the case accomplishes that goal. Turning our attention to the second Dugas factor, legislative acquiescence, we agree with the department that there is strong evidence that the legislature has acquiesced in the department's long-standing tip credit rules. As noted, the department's minimum wage regulations have differentiated between service and nonservice restaurant industry employment since 1950, and § 31-62-E2 and 31-62-E4 of the Regulations of Connecticut State Agencies have existed in essentially their present form since 1958. Since the legislature made the tip credit mandatory in 1980, the department has continued to apply its regulations so as to disallow the tip credit for nonservice employees, even those who customarily and regularly receive gratuities. See Back Bay Restaurant Group, Inc. v. Dept. of Labor , Superior Court, judicial district of New Britain, Docket No. CV-00-0504360-S, 2001 WL 1042594 (August 14, 2001) (30 Conn. L. Rptr. 264, 268 ) (parties did not dispute that, under department's interpretation of regulation, "[n]o recognition or credit toward the minimum fair wage may be taken with respect to gratuities received by a non-service employee"); Labor Dept. v. America's Cup , Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-92-0516750, 1994 WL 162415 (April 21, 1994) (11 Conn. L. Rptr. 379 ) (similar); see also Bucchere v. Brinker International, Inc. , Superior Court, judicial district of Waterbury, Docket No. X01-CV-044000238-S, 2006 WL 3361403, *4-5 (November 8, 2006) (discussing regulations and department's published explanation thereof). During that time, the department also has published instructional materials that clearly delineate how it applies the credit to food service workers. In addition, the department's application and enforcement of the tip credit regulations has on at least two occasions been challenged in the Superior Court. See Back Bay Restaurant Group, Inc. v. Dept. of Labor , supra, at 264 ; Labor Dept. v. America's Cup , supra, at 379. At the same time, the legislature has amended § 31-60 (b) no fewer than ten times since 1980. See Public Acts 1999, No. 99-199; P.A. 00-144; Public Acts 2001, No. 01-42, § 2; Public Acts 2002, No. 02-33, § 2; Public Acts 2003, No. 03-278, § 91; Public Acts 2004, No. 04-68, § 1; Public Acts 2008, No. 08-113, § 1; Public Acts 2013, No. 13-117, § 2; Public Acts 2013, No. 13-140, § 14; Public Acts 2014, No. 14-42, § 5. The parties appear to agree, and we will assume for the sake of argument, that the amendments enacted between 2000 and 2002, which specified for the first time that a tip credit can be taken for bartenders as well as for waitstaff, were adopted in response to the decisions in Back Bay Restaurant Group, Inc., and America's Cup . We find it significant that, at the time that the legislature amended the statute to make clear that bartenders are subject to the tip credit; see P.A. 00-144; the legislature did not expressly preempt the department's long-standing distinction-discussed throughout those decisions-between service and nonservice employees, nor the department's rule that only the former are subject to the tip credit. See Dugas v. Lumbermens Mutual Casualty Co. , supra, 217 Conn. at 642, 587 A.2d 415 ; see also Velez v. Commissioner of Labor , supra, 306 Conn. at 492, 50 A.3d 869 ("[w]e may assume that if . the legislature had disagreed with the commissioner's interpretation of [the statute] . it would have taken appropriate corrective action at [the] time [of amendment]"). The inference that the legislature has acquiesced in the department's ongoing enforcement of its tip credit regulations is especially strong in light of the fact that, in 2014, the legislature repealed thousands of pages of "unnecessary" Connecticut regulations, including § 31-62-E6 of the Regulations of Connecticut State Agencies (allowing cost of food and lodging provided to restaurant and hotel employees to be factored into calculation of minimum wage) and § 31-62-E7 of the Regulations of Connecticut State Agencies (restriction on deductions made against minimum wage rate for employers of restaurant and hotel workers), but left undisturbed the immediately preceding § 31-62-E1 through 31-62-E4 of the Regulations of Connecticut State Agencies that are at issue in this case. See 2014 Public Acts, No. 14-187, § 54. We must assume that that choice was intentional and that, by repealing the department's regulations providing allowances for boarding and lodging but retaining those that distinguish between service and nonservice restaurant employees, the legislature signaled its implicit approval of the tip credit regulations. See Phelps Dodge Copper Products Co. v. Groppo , supra, 204 Conn. at 134, 527 A.2d 672 ; Connecticut Light & Power Co. v. Public Utilities Control Authority , 176 Conn. 191, 198, 405 A.2d 638 (1978). Turning our attention to the third Dugas factor, we note that the statutory regime at issue here is akin to that in Dugas in that the legislature has granted the department broad authority to interpret and apply the law so as to accomplish the statutory purpose of ensuring the payment of fair and just wages to all employees. We have long recognized the substantial discretion afforded to the department in this respect. See West v. Egan , supra, 142 Conn. at 444-45, 115 A.2d 322 ; see also Back Bay Restaurant Group, Inc. v. Dept. of Labor , supra, 30 Conn. L. Rptr. at 267 (noting "broad delegation of power" to commissioner to issue regulations applying tip credit). We recognize that the legislature's insertion of mandatory language during the 1980 amendment of § 31-60 (b) cabined this discretion to some extent. See P.A. 80-64. Still, as we have discussed, the statute continues to authorize the commissioner to "adopt such regulations . as may be appropriate to carry out the purposes of [the law] . [and to] provide, in such regulations, modifications of the minimum fair wage . for such special cases or classes of cases as the commissioner finds appropriate to prevent curtailment of employment opportunities, avoid undue hardship and safeguard the minimum fair wage ." General Statutes § 31-60 (b). Moreover, General Statutes § 31-58 (b) provides that, in establishing a minimum fair wage, the commissioner "(1) may take into account all relevant circumstances affecting the value of the services rendered, including hours and conditions of employment affecting the health, safety and general well-being of the workers, (2) may be guided by such considerations as would guide a court in a suit for the reasonable value of services rendered where services are rendered at the request of an employer without contract as to the amount of the wage to be paid, and (3) may consider the wages, including overtime or premium rates, paid in the state for work of like or comparable character by employers who voluntarily maintain minimum fair wage standards ." The plaintiff has suggested no reason why the commissioner's long-standing authority to modify the minimum wage rules for special classes of cases would not extend to pizza delivery drivers, who represent a unique subset of restaurant service workers that did not even exist at the time that the tip credit regulations were initially adopted. Finally, we turn our attention to the fourth Dugas factor, namely, the legislative history of the relevant statute. Because we have concluded that § 31-60 (b) is ambiguous with respect to whether the legislature intended, after 1980, to permit the department to continue to limit the tip credit to those restaurant employees engaged solely in table service duties, we may look to the legislative history of the statute for additional guidance. See General Statutes § 1-2z. The history of § 31-60 (b), although not dispositive, reveals that legislators considering amendments to the statute consistently have suggested that the mandatory tip credit applies specifically to waitstaff. When the House of Representatives debated the 1980 amendment, for example, Representative Richard J. Balducci explained that the bill would impose a percentage formula in place of "the sixty cents [tip credit] which had previously been the method of removal on wages for waitresses." 23 H.R. Proc., Pt. 3, 1980 Sess., p. 865. On the Senate side, Senator Michael J. Skelley stated that the bill "takes away the flat [sixty] cent[s] allowance that is currently deducted from the minimum wage for waitresses and increases that to 23 percent of the minimum wage." 23 S. Proc., Pt. 3, 1980 Sess., p. 734. Similarly, when summarizing the 2002 amendments, Representative Christopher G. Donovan stated: "The bill also includes the current tip credit amount for those who customarily and regularly receive tips, which includes waiters, waitresses and bartenders." 45 H.R. Proc., Pt. 4, 2002 Sess., pp. 1139-40. Representative Donovan further explained: "[T]here is a tip credit that employers can use in calculating the minimum wage for those people-waiters, waitresses and bartenders-and in talking to the Office of Legislative Research we thought to clear up any confusion over waiters, waitresses and bartenders that we make the language to be consistent. So the language which we changed [applies] to the waiters and waitresses the same language that we have for bartenders ." Id., pp. 1140-41. The plaintiff posits that these "[p]assing" legislative references to " 'waiters and waitresses' " are merely the shorthand by which legislators have referred to restaurant employees who regularly and customarily receive tips, and that the references do not indicate a legislative intent to adopt the department's regulations or to limit the scope of the tip credit to employees who provide table service. We are not persuaded. Although such a gloss might be placed on the comments of Representative Balducci and Senator Skelley, additional comments by Representative Donovan strongly suggest that the legislature was familiar with and chose not to preempt the department's traditional tip credit rules. Specifically, in response to a follow-up question, Representative Donovan elaborated: "[W]e have two sections of people who receive tips waiters and waitresses people in the hotel and restaurant industry, and bartenders. We have the language for waiters and waitresses has been around for some [fifty] years, it didn't use the words customarily and regularly receive tips though that is certainly the understanding that is what the regulations call for, that's what we use. When the bartenders were added we put that language in and legislative research thought there was some confusion there, we wanted to clarify it. We're talking about the same group of people." 45 H.R. Proc., supra, pp. 1141-42. Although they are not completely linear, we understand Representative Donovan's comments to mean that the members of the Labor and Public Employees Committee that he chaired (1) were familiar with the tip credit regulations that had been in place since the early 1950s, (2) understood that the department had applied the tip credit solely to waiters and waitresses prior to the statutory extension of the credit to bartenders in 2000, and (3) in amending the statute, merely sought to clarify that waitstaff and bartenders were to be treated alike. To that extent, the legislative history bears out the department's interpretation of the statute. For the foregoing reasons, we conclude that the 1980 amendment to § 31-60 (b) did not repeal by implication the department's tip credit regulations as applied to restaurant workers, other than waitstaff and bartenders, who regularly and customarily receive gratuities, and that the department did not act arbitrarily, capriciously, or in violation of its statutory authority in declining the plaintiff's invitation to apply the tip credit to delivery drivers. The judgment is affirmed. In this opinion the other justices concurred. The commissioner also stated that "the mere location to which such food items are delivered has less meaningful legal significance to this analysis than the nature of the 'service' being provided by such employees." The plaintiff argues that the department's interpretation and application of its regulations are entitled to less deference because the department has enforced the regulations inconsistently, abandoning the requirement that service employees serve customers at a table or booth. Because we read the decision of the commissioner to have deemphasized but still retained the significance of table and booth service with respect to whether a particular restaurant employee qualifies as a service employee, we are not persuaded by the plaintiff's argument. Although the commissioner cited to § 31-62-E4 of the Regulations of Connecticut State Agencies, which addresses diversified service/nonservice employment within the restaurant industry, she did not discuss the relevance of that regulation in her analysis of the plaintiff's petition. Section 31-62-E4 provides: "If an employee performs both service and non-service duties, and the time spent on each is definitely segregated and so recorded, the allowance for gratuities as permitted as part of the minimum fair wage may be applied to the hours worked in the service category. If an employee performs both service and non-service duties and the time spent on each cannot be definitely segregated and so recorded, or is not definitely segregated and so recorded . no allowances for gratuities may be applied as part of the minimum fair wage." Although the commissioner did not expressly apply this regulation to the plaintiff's case, it is implicit in the commissioner's ruling that, even if the plaintiff could overcome the fact that only table and booth service qualifies for a tip credit and that delivery drivers do not provide such service, the plaintiff could not claim a tip credit for the limited time during which its drivers are actually "serving" food to their customers because the plaintiff does not segregate delivery time from driving time. Substantially similar regulations adopted at that time applied to adult males employed in restaurant occupations. See Dept. of Labor and Factory Inspection, Mandatory Order No. 4B, § 180-7-1, 16 Conn. L.J., No. 73, p. 7 (March 28, 1950). For purposes of brevity, we cite hereinafter only to the relevant provisions of Mandatory Order No. 4A. A corresponding provision used the terms "countermen [and] counterwaiters." Mandatory Order No. 4B, § 180-7-14, 16 Conn. L.J., supra, p. 8. At that time, a "counterman" was defined as "one that serves food over the counter of a cafeteria or lunchroom ." Webster's Third New International Dictionary (1961) p. 519. Section 180-12-6 of Mandatory Order No. 8 defines service employee as "any employee whose duties relate solely to the serving of food and/or beverage to patrons seated at tables or booths, and to the performance of duties incidental to such service, and who customarily receives gratuities. For the purpose of this [o]rder, a person shall not be considered to customarily receive gratuities unless a minimum of [$10] per week in gratuities is received in the case of full time employees, o[r] [$2] per day in the case of part time employees, as evidenced by signed statements of the employee, stating unequivocally that such worker did receive gratuities as herein required, which must be maintained as part of the records of the employer." Mandatory Order No. 8, § 180-12-6, supra, 21 Conn. L.J., p. 6. Section 180-12-7 of Mandatory Order No. 8 defines a nonservice employee as "an employee other than a service employee, as herein defined. A nonservice employee shall include, but is not limited to, countergirls, counter-waitresses, countermen, counterwaiters and those employees serving food or beverage to patrons seated at tables or booths and who do not customarily receive gratuities as defined above." Id., § 180-12-7. The original reference to service employees appears to have been inadvertently omitted from the present version of the regulation, which defines the conditions under which gratuities may be counted against the minimum wage of a restaurant employee. See Regs., Conn. State Agencies § 31-62-E3. It is undisputed, however, that the intent of the regulatory scheme is that only service employees shall be subject to the tip credit. Section 180-12-3 of Mandatory Order No. 8 provides: "If an employee performs both service and non-service duties, and the time spent on each is definitely segregated and so recorded, the allowance for gratuities as permitted as part of the [m]inimum [f]air [w]age may be applied to the hours worked in the [s]ervice category. If an employee performs both service and non-service duties and the time spent on each cannot be definitely segregated and so recorded, or is not definitely segregated and so recorded, no allowances for gratuities may be applied as part of the [m]inimum [f]air [w]age." Mandatory Order No. 8, § 180-12-3, supra, 21 Conn. L.J., p. 5. Many of the authorities cited by the parties are not directly relevant to the question presented to us because they do not address an alleged conflict between an administrative regulation and an authorizing statute. The plaintiff contends that a driver who transports a pizza from the restaurant to a customer's home is performing essentially the same service as a waiter who carries food from the restaurant kitchen to a customer's table and, therefore, that the department erred in concluding that only a small portion of the driver's time is spent engaged in tip earning service work. By contrast, the department, whose wage regulations distinguish between travel time and working time; see Regs., Conn. State Agencies § 31-62-E10 ; is apparently of the view that pizza delivery is more akin to other types of work in which an employee drives to a customer's location and then performs a discrete service there. Regardless of which analogy we might find more apt were we to consider the question in the first instance, we recognize that in this arena we must defer to the agency's determinations, which are not unreasonable. See Pet v. Dept. of Health Services, 228 Conn. 651, 660-61, 638 A.2d 6 (1994). We recognize that the presumption in favor of the validity of the regulation challenged in Dugas was especially strong because that regulation had been approved by the standing Legislative Regulation Review Committee of the General Assembly. See Dugas v. Lumbermens Mutual Casualty Co., supra, 217 Conn. at 641, 587 A.2d 415 ; see also General Statutes § 4-170 (b) (1) (providing that no adoption, amendment, or repeal of any regulation shall be effective until approved by that committee). Nevertheless, we have made clear that the presumption of validity extends to regulations, such as those at issue in the present case, that were adopted prior to the enactment of the UAPA in 1971, and thus were not subject to committee approval. See, e.g., Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 154, 285 A.2d 352 (1971) ("[a]dministrative rules and regulations are given the force and effect of law"); St. John's Roman Catholic Church Corp. v. Darien, 149 Conn. 712, 722, 184 A.2d 42 (1962) ("we must make every presumption and intendment in favor of the regulations and sustain them unless they are clearly invalid"); see also Public Acts 1971, No. 71-854, § 7 (a) and 8 (a) (authorizing publication of regulations preexisting establishment of regulation review committee). The department published its guidelines in booklet form. See Connecticut Dept. of Labor, Wage and Workplace Standards Division, "A Guide for Restaurant Employers in Connecticut" (1997) (Guide). The Guide informed employers that "restaurants may take a credit toward the minimum wage for some service employees who receive gratuities. A 'service employee' is defined as any employee whose duties relate solely to the serving of food and/ or beverages to patrons seated at tables or booths, and to the performance of duties incidental to such service, and who customarily receives gratuities. This means that a tip credit (toward the minimum wage) can be taken only for waiters and waitresses, and only during the time for which they are actually serving patrons at tables or booths, or performing closely related duties, and when they are receiving gratuities." (Emphasis in original.) Id., p. 2. The Guide proceeded to delineate the sorts of restaurant duties that qualify as service and nonservice duties. Id., pp. 2-3. Of particular note, the Guide listed "[w]aiting on takeout customers" as a nonservice duty for which no tip credit may be taken. Id., p. 3. The department apparently ceased publication of that particular booklet in 2006. In light of this published guidance, the plaintiff's contention that the department's tip credit policies are not entitled to deference because they are "unwritten" is unavailing. Although it is true that the department had not formally applied its rules to pizza delivery drivers prior to the present case, we conclude that the Guide, by restricting the tip credit to waiters and waitresses serving patrons at tables and booths, and by expressly disallowing the credit for takeout service, clearly presaged the department's position that delivery drivers are not engaged solely in service work. To the extent that the trial court found that the department never had a written policy of applying the tip credit only to service employees, we conclude, in light of the Guide, that that finding was clearly erroneous. We emphasize that any actual changes to the department's regulations may be proposed by the commissioner but must be approved by the Legislative Regulation Review Committee of the General Assembly. See General Statutes § 4-170. See A. Smith, Encyclopedia of Junk Food and Fast Food (Greenwood Press 2006) pp. 45, 78 (recounting that Chicken Delight, founded in 1952, was first chain to offer home delivery service and that Domino's, which was founded in 1960, offered nation's first pizza delivery service). At oral argument, the plaintiff acknowledged that there was no pizza delivery service in Connecticut when § 31-60 (b) and the tip credit regulations were initially drafted in the early 1950s. Also noteworthy are the 2013 comments of Representative Daniel E. Carter, who expressed his opposition to further increasing the minimum wage. See 56 H.R. Proc., Pt. 22, 2013 Sess., pp. 7447-49. Representative Carter began at one point to suggest that a higher minimum wage would pose problems for business owners who employ "waitresses," but quickly corrected himself, presumably recognizing that the tip credit mitigates the impact of a higher minimum wage with respect to waitstaff. Instead, Representative Carter stated: "We're talking about when somebody might be a pizza guy. Well, it's going to be a lot more difficult for somebody to hire an extra pizza delivery guy when you're going to be paying a higher minimum wage ." Id., p. 7748. In the mind of at least one legislator, then, the tip credit required by statute did not apply to pizza delivery drivers.

12510888

Victor DEMARIA v. CITY OF BRIDGEPORT

Demaria v. City of Bridgeport

2019-06-11

AC 41234

98

106

211 A.3d 98

211

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:58:01.966564+00:00

Fastcase

Victor DEMARIA v. CITY OF BRIDGEPORT

Victor DEMARIA v. CITY OF BRIDGEPORT AC 41234 Appellate Court of Connecticut. Argued January 28, 2019 Officially released June 11, 2019 Eroll V. Skyers, for the appellant (defendant). John H. Harrington, for the appellee (plaintiff). Lavine, Sheldon and Prescott, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

3793

23687

SHELDON, J. The defendant, the city of Bridgeport, appeals from the judgment of the trial court, rendered upon the verdict of a jury, awarding damages to the plaintiff, Victor DeMaria, for injuries he sustained in a fall that occurred on the defendant's sidewalk. On appeal, the defendant claims that the trial court improperly admitted into evidence certain medical records that had been written by Miriam Vitale, a physician assistant who was the plaintiff's primary care provider at the veterans affairs hospital (hospital) in West Haven, under General Statutes § 52-174 (b). We agree with the defendant that the court improperly admitted the medical records written by Vitale into evidence under § 52-174 (b), and that the defendant was harmed by the court's error. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial. The record reveals the following procedural history and facts, as the jury reasonably could have found them. On March 27, 2014, the plaintiff tripped while walking on the sidewalk of Fairfield Avenue in Bridgeport, when he caught his foot on a raised portion of the sidewalk. As a result, the plaintiff fell forward onto his face and hands, causing him to suffer abrasions to his nose and hands, a broken nose and a broken finger on his left hand. Approximately two months after his fall, the plaintiff began to experience a burning sensation in his left arm, weakened grip strength and a limited range of motion in his left hand. He sought medical attention at the hospital, where he consulted neurologists, radiologists, physical therapists, occupational therapists and his primary care provider, Vitale, concerning his symptoms. After the plaintiff had received approximately two and one-half years of treatment, including extensive physical and occupational therapy, Vitale wrote a document for his medical file titled "Final Report of Injury," in which she opined that the plaintiff had reached the maximum potential use of his left hand, he retained only 47 percent of his former grip strength and he continued to experience pain and neuropathy in that hand. She further concluded that "these injuries were caused with a reasonable degree of medical certainty by the March 27, 2014 accident, [specifically], [to the] left fourth and fifth digit, a permanent disability of neuropathy, as well as left hand permanent weakness occurring as a result of fall and impact of [the plaintiff] during the fall." The plaintiff brought this action against the defendant for economic and noneconomic damages under General Statutes § 13a-149, alleging that his injuries had been caused by the defendant's failure to remedy a defect in its sidewalk, which it knew or should have known would cause injuries to pedestrians. Prior to trial, the defendant filed a motion in limine to preclude the admission of Vitale's treatment records, treatment reports, findings, conclusions, and medical opinions as evidence at trial. The defendant argued that Vitale's medical records were inadmissible under § 52-174 (b) because the defendant would have no opportunity to cross-examine her, either at a deposition or at trial, because she was prevented from testifying by 38 C.F.R. § 14.808. The plaintiff responded that precluding the medical records would result in an injustice to him merely because his treating physician was made unavailable to testify by federal regulation and that that is the very type of injustice that § 52-174 (b) was intended to remedy. After a hearing, the court denied the defendant's motion in limine. Following a three day trial, the jury returned a verdict for the plaintiff, awarding him $ 15,295.47 in economic damages and $ 77,500 in noneconomic damages, for a total award of $ 92,795.47. The court denied the defendant's subsequent motion to set aside the verdict, in which it argued, inter alia, that the trial court erred in admitting the medical records written by Vitale because the defendant had had no opportunity to cross-examine her at a deposition or at trial in violation of its common-law right to cross-examination. This appeal followed. Additional facts will be set forth as necessary. "Whether the trial court improperly admitted evidence under § 52-174 (b) is an evidentiary question, and our review is for abuse of discretion." Rhode v. Milla , 287 Conn. 731, 742, 949 A.2d 1227 (2008). "To the extent [that] a trial court's admission of evidence is based on an interpretation of [our law of evidence], our standard of review is plenary.... We review the trial court's decision to admit [or exclude] evidence, if premised on a correct view of the law, however, for an abuse of discretion.... The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination.... Thus, [w]e will make every reasonable presumption in favor of upholding the trial court's ruling[s] [on these bases] . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court . reasonably [could have] conclude[d] as it did." (Internal quotation marks omitted.) Weaver v. McKnight , 313 Conn. 393, 426, 97 A.3d 920 (2014). Section 52-174 (b) provides in relevant part: "In all actions for the recovery of damages for personal injuries or death, pending on October 1, 1977, or brought thereafter . any party offering in evidence a signed report and bill for treatment of any treating . physician assistant . may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of such treating . physician assistant . and that the report and bill were made in the ordinary course of business. ." Section 52-174 (b) "permits a signed doctor's report to be admitted as a business [record].... [The statute] creates a presumption that the doctor's signature is genuine and that the report was made in the ordinary course of business.... Thus, once the statutory requirement that the report be signed by a treating physician [or physician assistant] is met, the evidence in that report is admissible and has the same effect as a business [record]. This does not mean, however, that the entire report is automatically admitted." (Citation omitted; footnote omitted.) Aspiazu v. Orgera , 205 Conn. 623, 626-27, 535 A.2d 338 (1987). In Struckman v. Burns , 205 Conn. 542, 543, 548-49, 534 A.2d 888 (1987), our Supreme Court considered whether § 52-174 (b) would infringe upon a defendant's common-law right to cross-examination if it were construed to permit the admission into evidence of records from a plaintiff's physician who, because he resided out of state, could not be subpoenaed for trial and, thus, would be unavailable for cross-examination at trial by the opposing party. The court concluded that such a reading of § 52-174 (b) did not significantly curtail the right of cross-examination in the case before it because it did not preclude the taking of the out-of-state physician's deposition in which he could have been effectively cross-examined. Id., at 552, 534 A.2d 888. In Rhode v. Milla , supra, 287 Conn. at 732-33, 744, 949 A.2d 1227, our Supreme Court applied its holding in Struckman to a case in which the plaintiff sought to introduce medical records from a chiropractor who, having invoked his fifth amendment privilege against self-incrimination, became unavailable to testify either at a deposition or at trial. In those circumstances, the court found that "the defendants did not have an adequate opportunity to cross-examine [the chiropractor] in a meaningful manner about his [records] either at his deposition or at trial because of his invocation of the fifth amendment privilege.... Thus, [it concluded] that the trial court improperly admitted the [records] into evidence pursuant to § 52-174 (b)." Id., at 744, 949 A.2d 1227. The defendant claims that the present case is indistinguishable from Rhode and, thus, that the trial court improperly admitted the medical records containing Vitale's entries under § 52-174 (b). The plaintiff argues that the defendant's reliance on Rhode is misplaced because that case can be distinguished from the present one. The plaintiff's argument that Rhode is not controlling precedent is unavailing. The plaintiff claims that our Supreme Court recognized that medical records and bills are admissible "where the [plaintiff testifies] that the bills have been incurred as a result of the injuries received"; (internal quotation marks omitted) id., at 745, 949 A.2d 1227 ; and there is "corroboration as to the attendance of the doctor upon the plaintiff . furnished by hospital records admitted into evidence." Bruneau v. Quick , 187 Conn. 617, 622, 447 A.2d 742 (1982). Thus, the plaintiff contends that Rhode supports the admission of Vitale's records because the plaintiff here, like the plaintiff in Rhode , testified that he received the medical treatment detailed in the records, and the records of such treatment were produced by the hospital. However, the plaintiff's interpretation of Rhode ignores the context in which the quoted language was used and, thus, misstates the rule governing the admission of records under § 52-174 (b). The language quoted by the plaintiff immediately followed the court's conclusion that it had a "fair assurance that [the] evidentiary impropriety likely did not affect the jury's verdict." (Internal quotation marks omitted.) Rhode v. Milla , supra, at 745, 949 A.2d 1227. This language acknowledged that our Supreme Court had found error in the trial court's admission of the medical records and served as a transition to its discussion of harm. Therefore, the plaintiff is incorrect in his assertion that our Supreme Court recognized a standard for the admissibility of medical records under § 52-174 (b) that requires only that the plaintiff testify as to the relevance of the records and that the records originate from a hospital. To the contrary, the court in Rhode determined that it would have been improper to admit records under § 52-174 (b) if the opposing party had had no opportunity to cross-examine their author, either at a deposition or at trial. Id., at 744, 949 A.2d 1227. Ultimately, the court found that the error in the case before it was harmless because, inter alia, the medical records did not bear upon a central issue in the case. Id., at 744-46, 949 A.2d 1227. The plaintiff also claims that the Rhode court distinguishes, in its harmless error analysis, between medical evidence in personal injury cases and medical evidence in medical malpractice cases. The plaintiff argues that a complete reading of Rhode "reveals an equivocal treatment of medical records admission" but provides no further explanation or support for this argument. Here, again, the plaintiff misinterprets the language used by the Rhode court. The language at issue appears in the court's discussion of the first factor of its harmless error analysis, where it stated: "[I]nasmuch as this case is not a medical malpractice action . the medical validity of [the chiropractor's] treatment methods is not a central issue herein." (Emphasis omitted.) Rhode v. Milla , supra, 287 Conn. at 745, 949 A.2d 1227. The court's language did not thereby limit the application of § 52-174 (b) to medical malpractice cases or give "equivocal treatment" to medical records in that context. Instead, it mentioned medical malpractice cases as a group of cases in which the treatment methods detailed in the medical records would likely be a central issue at trial. Moreover, as is apparent from the plain language of § 52-174 (b), the statute applies broadly to "actions for the recovery of damages for personal injuries or death ." We, therefore, conclude that Rhode cannot meaningfully be distinguished from the present case and is controlling precedent. Like the defendant in Rhode , the defendant in the present case did not have an opportunity to cross-examine the witness against it, Vitale, either at a deposition or at trial because she was legally unavailable to offer opinion testimony in any forum. Because, more particularly, she was prohibited from providing any opinion or expert testimony by 38 C.F.R. § 14.808 and, thus, was unavailable for cross-examination at any time, the medical records she authored should not have been admitted into evidence. To admit such records would enable a plaintiff, solely because he was treated at a veterans affairs hospital, to present favorable expert opinions from his medical provider without subjecting the author of those opinions to the crucible of cross-examination. "This conclusion does not, however, end our inquiry, because [e]ven when a trial court's evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial.... [A]n evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful.... [T]he standard in a civil case for determining whether an improper ruling was harmful is whether the . ruling [likely] would [have] affect[ed] the result.... Moreover, an evidentiary impropriety in a civil case is harmless only if we have a fair assurance that it did not affect the jury's verdict." (Citations omitted; footnote omitted; internal quotation marks omitted.) Hayes v. Camel , 283 Conn. 475, 488-89, 927 A.2d 880 (2007). "A determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial.... Thus, our analysis includes a review of: (1) the relationship of the improper evidence to the central issues in the case, particularly as highlighted by the parties' summations; (2) whether the trial court took any measures, such as corrective instructions, that might mitigate the effect of the evidentiary impropriety; and (3) whether the improperly admitted evidence is merely cumulative of other validly admitted testimony.... The overriding question is whether the trial court's improper ruling affected the jury's perception of the remaining evidence." (Citations omitted; internal quotation marks omitted.) Id., at 489-90, 927 A.2d 880. The following additional facts are relevant to our determination of harm. The plaintiff testified about his fall, his resulting injuries, and the medical treatment he received for those injuries. He explained that, since his fall, the grip strength in his left hand was less than that in his right hand, causing him to have trouble opening a bottle of water and picking up items with his left hand. By his own lay assessment, the grip strength in his left hand was "40 or 38" percent while the grip strength in his right hand was 90 percent. He further stated that, through physical therapy, he had been able to improve the grip strength in his left hand to 48 percent. During the plaintiff's testimony, medical records were admitted into evidence as full exhibits, which detailed the plaintiff's treatment in the ambulance, at the emergency room, and in various follow-up appointments at the hospital. Included in the records was the report at issue, titled "Final Report of Injury," that had been written by Vitale. In the report, Vitale stated: "[The plaintiff] did not have these losses prior to his injuries sustained in the fall of March 27, 2014, and therefore it is concluded that [the plaintiff's] injuries were sustained from the fall on said date." Vitale further opined that, "[a]fter extensive [physical therapy] and [occupational therapy], [the plaintiff's] diminished potential shown in the above grip strength amounts to 47 [percent] strength in his left hand as compared with his right hand. As such, this is his impairment rating in his left hand and he is considered to have achieved a maximum potential at this point." Nowhere else in the medical records that were admitted into evidence did any other treating medical provider comment on the plaintiff's impairment rating or opine as to the cause of his ongoing symptoms. The medical records from the plaintiff's occupational therapist, however, listed the results of multiple grip strength tests of both of his hands. In his closing argument, the plaintiff's counsel first noted that his client had sustained "permanent injuries," then read to the jury from Vitale's report. The plaintiff's counsel emphasized that the plaintiff was "considered to [have achieved] maximum potential," stating: "He can-he can squeeze all the-all the instruments, and squeezy balls and everything he wants, it's not [going to] get any better, that's it, he's stuck, stuck with this injury." Counsel then read from Vitale's report a second time, emphasizing her conclusions that the fall caused the plaintiff's injuries. He stated: "So there's no question that a competent medical professional not only found his injuries, but connected them to the accident in writing. I think that's-not only meets the burden of proof of, you know, preponderance of the evidence, I think it's-it's-it would [meet] a higher standard of clear and convincing evidence that these injuries were caused by the accident." In the closing argument of the defendant's counsel, he questioned the reliability of Vitale's opinion by highlighting that the jury knew nothing about her qualifications and questioning the likelihood that a broken pinky could lead to the loss of function of which the plaintiff complained. In his rebuttal, the plaintiff's counsel attempted to rehabilitate Vitale by emphasizing her medical training and the length of time she had treated the plaintiff. To determine whether the defendant was harmed by the admission of such improper evidence, we first consider the relationship of the evidence to the central issues in the case, particularly as highlighted by the parties' closing arguments. The plaintiff's counsel expressly relied on Vitale's report in his closing argument to establish a causal link between the plaintiff's fall and his lingering symptoms. To that end, the plaintiff's counsel read from Vitale's report twice, highlighting her opinion on causation and specifically noting that that opinion established that the plaintiff had more than met his burden of proof on the issue of causation. In Rhode , our Supreme Court concluded that the medical records at issue did not bear on a central issue in the case because there was no question about the medical validity of the treatment methods detailed in those records and additional evidence was presented to support the plaintiff's claims of injury and disability. Rhode v. Milla , supra, 287 Conn. at 745-46, 949 A.2d 1227. Here, by contrast, the medical records at issue were the only evidence connecting the plaintiff's injuries that resulted from the fall to his lingering symptoms. Such evidence, thus, established causation while broadening the scope of damages to include compensation for prolonged suffering, disability, and resulting medical treatment. Because the plaintiff relied on the records at issue, as highlighted in his counsel's closing argument, to establish causation and damages, we conclude that such records concerned the central issues in the case. We next consider whether the trial court took any measures, such as the giving of corrective instructions, which might have mitigated the effect of the evidentiary impropriety. No such measures were taken. To the contrary, the court cautioned the jury in its final charge that it was not to draw any adverse inference against the plaintiff from his decision to submit medical records instead of live testimony from his medical provider to prove his case. Finally, we must consider whether the improperly admitted records were merely cumulative of other validly admitted testimony. We conclude that they were not. In our review of the record, we could find no other evidence from a treating medical provider rendering an opinion on either causation or the permanency of the plaintiff's injuries. Although the plaintiff testified about the loss of grip strength in his hand and the records from the occupational therapist reflect the results of his grip strength tests over time, such evidence, which might have supported a lay inference of permanency, is not supported by expert opinion. Vitale's expert conclusion was, thus, not merely cumulative of such lay testimony on the issues of causation and permanency. For the foregoing reasons, we conclude that the court's evidentiary impropriety was harmful because we do not have a fair assurance that it did not affect the jury's verdict. The judgment is reversed and the case is remanded for a new trial. In this opinion the other judges concurred. The defendant claims on appeal, in the alternative, that the court erred in admitting Vitale's medical records for three additional reasons: (1) the admission of Vitale's written expert opinion was precluded under the supremacy clause of the United States constitution and 38 C.F.R. § 14.808 ; (2) Vitale was not qualified as an expert, as required by § 7-2 of the Connecticut Code of Evidence ; and (3) there was no testimony regarding the methodology that she employed in arriving at her medical opinion to establish its validity. See State v. Porter , 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L.Ed. 2d 645 (1998). Because we conclude that it was improper to admit Vitale's medical records under § 52-174 (b), we do not reach these claims. We note, however, that the only foundation that is required for the admission of medical records or bills under § 52-174 (b) is that the record or bill be signed by a treating medical professional. See Aspiazu v. Orgera , 205 Conn. 623, 627, 535 A.2d 338 (1987). "Thus, once the statutory requirement that the report be signed by a treating physician [or physician assistant] is met, the evidence in that report is admissible and has the same effect as a business [record]." Id. Because § 52-174 (b) merely treats the report as a business record, it does not allow for the admission of medical records or parts of a medical record that would otherwise be inadmissible. See Struckman v. Burns , 205 Conn. 542, 554, 534 A.2d 888 (1987) ("[§] 52-174 [b] in no way eliminates a plaintiff's burden of establishing the relevancy of the expert opinions expressed [in the report]"). General Statutes § 13a-149 provides in relevant part: "Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair...." Title 38 of the Code of Federal Regulations, § 14.808, provides in relevant part: "(a) [Department of Veterans Affairs] personnel shall not provide, with or without compensation, opinion or expert testimony in any legal proceedings concerning official [Department of Veterans Affairs] information, subjects or activities, except on behalf of the United States or a party represented by the United States Department of Justice...." The court in Struckman "relied on Gordon v. Indusco Management Corp. , 164 Conn. 262, 271, 320 A.2d 811 (1973), for the principle that there is an absolute common-law right to cross-examination in a civil case." (Footnote omitted; internal quotation marks omitted.) Rhode v. Milla , supra, 287 Conn. at 742-43, 949 A.2d 1227.

12510413

Diane BOISVERT et al. v. James GAVIS

Boisvert v. Gavis

2019-07-02

SC 20049, (SC 20053)

1

28

210 A.3d 1

210

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

Robinson, C.J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

Diane BOISVERT et al. v. James GAVIS

Diane BOISVERT et al. v. James GAVIS SC 20049, (SC 20053) Supreme Court of Connecticut. Argued September 10, 2018 Officially released July 2, 2019 Mathew Olkin, Willimantic, for the appellant (defendant). Douglas T. Stearns, Windham, for the appellees (plaintiffs). Justine Rakich-Kelly, Hartford, and Pamela Magnano filed a brief for the Children's Law Center of Connecticut as amicus curiae. Leslie I. Jennings-Lax, and Louise T. Truax, Southport, filed a brief for the Connecticut Chapter of the American Academy of Matrimonial Lawyers as amicus curiae. George Jepsen, former attorney general, and Carolyn A. Signorelli, Benjamin Zivyon and John E. Tucker, Hartford, assistant attorneys general, filed a brief for the Department of Children and Families as amicus curiae. Mark S. Randall filed a brief for the Connecticut Bar Association as amicus curiae. Robinson, C.J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js. This case originally was scheduled to be argued before a panel of this court consisting of Chief Justice Robinson and Justices Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker. Although Justice Kahn was not present when the case was argued before the court, she has read the briefs and appendices, and has listened to a recording of the oral argument prior to participating in this decision.

13638

84982

ECKER, J. The principal issue in this appeal is whether an order granting a third party's petition for visitation pursuant to General Statutes § 46b-59 over the objection of a fit custodial parent must include a provision requiring the third party to abide by all of the parent's decisions regarding the care of the child during the visitation. We conclude that neither § 46b-59 nor the due process clause of the fourteenth amendment to the United States constitution requires the trial court to impose such a broad term and condition on an order of third-party visitation. With respect to the more limited claim of the custodial parent, the defendant James Gavis, that the denial of his postjudgment motion for a no contact order between the minor child and the child's maternal aunt violated the defendant's fundamental parental right to make decisions regarding his child's associations, we conclude that the defendant failed to meet his burden of demonstrating any such constitutional violation because he failed, as a threshold matter, to articulate a reason in support of the requested term and condition. We reject the defendant's remaining claims and affirm the judgment of the trial court. I The following facts and procedural history are relevant to this appeal. On November 3, 2016, the plaintiffs, Diane Boisvert and Thomas Boisvert, filed a verified petition for visitation with their grandson, B, pursuant to § 46b-59. The defendant, who is B's father, opposed the petition. The trial court, Graziani , J. , conducted an evidentiary hearing on the plaintiffs' petition, after which it issued a written memorandum of decision making the following findings of fact. The defendant and Nicole M. Gavis (Nicole) were married in October, 2011, and divorced in July, 2013. They had one child, B, who was born in June, 2012. The defendant was "the primary cause of the breakdown of the marriage" because he subjected Nicole "to a course of domestic violence, threats and humiliation." (Internal quotation marks omitted.) As a consequence, "[t]he defendant has been in prison on seven different occasions with multiple incarcerations based [on] domestic violence ." During his incarcerations, the defendant failed to provide any financial support for his family. After their divorce in 2013, Nicole was awarded sole custody of B, and the defendant had no visitation until April, 2015, at which time he was given supervised access to B. Nicole died on March 8, 2016. The plaintiffs are B's maternal grandparents and, although they are divorced, they both have had a significant relationship with B since his birth. Prior to Nicole's death, her mother, Diane Boisvert, "provided [B with] care, including feeding, doctor appointments, taking [B] to day care, school appointments, taking day trips with [B] as well as taking [B] on vacation." Thomas Boisvert's "role in taking care of [B] was less than that of" Diane Boisvert, but he still had a "significant relationship" with B, which "involved . babysitting, feeding and changing [B's] diapers." The defendant was granted custody of B after Nicole's death in March, 2016. The plaintiffs continued to be involved in B's life until June 26, 2016, when the defendant terminated the plaintiffs' contact with B because he believed that they were "seeking custody of [B] and [were] also seeking to get [the defendant] sent back to jail." The defendant claimed that the plaintiffs "did not follow his directions as to how they were to treat" B during their visits. For example, the defendant did not want B to use a pacifier, but the plaintiffs did not comply with his request. On another occasion, the defendant apparently did not want Diane Boisvert to assist B with his shoe, but she did so anyway. At the evidentiary hearing on the plaintiffs' petition for visitation, Steven H. Humphrey, a licensed clinical psychologist, testified as an expert witness. Humphrey testified that the plaintiffs had been very involved as B's primary caretakers for twenty-two months of his young life while the defendant was incarcerated. In Humphrey's expert opinion, the plaintiffs both have a " 'warm and healthy bond' " with B, who has maintained a sense of their importance in his life. Humphrey explained that the sudden death of B's mother was "very traumatic . and severely disruptive and long lasting" for B and that the unexplained disappearance of the plaintiffs from B's life has compounded his sense of loss. Humphrey opined that the lack of contact between B and the plaintiffs "is very detrimental to [B] and would cause real and significant harm to [B]" if allowed to continue. Humphrey further testified that depriving B of "individuals who have been in a caretaker capacity, who have helped bridge the difficulties caused by maternal death and paternal incarceration, and who are capable and eager to provide [B] with such support, would not be in his best interest, and there are reasons for concern that there would be significant psychological harm to cessation of these relationship[s]." The trial court found Humphrey's in-court testimony, expert report, and expert opinions to be credible, "well thought out, appropriate, and reasonable." Tracie Molinaro, the guardian ad litem appointed on behalf of B, also testified at the evidentiary hearing. In Molinaro's opinion, B has a "healthy relationship" with the plaintiffs, whom he "adores and loves ." Molinaro testified that the plaintiffs had a regular and consistent relationship with B and that they had been actively involved in his day-today care, especially during the defendant's incarceration. Molinaro believed that B had a parent-like relationship with Diane Boisvert and that the denial of visitation would cause B real and significant harm. As for Thomas Boisvert, Molinaro testified that the relationship was healthy, loving and positive, but she did not believe that the relationship rose to the level of a parent-like relationship. In Molinaro's opinion, neither of the plaintiffs would undermine the defendant's role as a parent if visitation was ordered. The trial court found Molinaro's testimony to be "credible and consistent with the testimony of . Humphrey, with the exception of the maternal grandfather not having a parent-like relationship" with B, which the trial court did not find to be correct. The trial court issued its written memorandum of decision on August 11, 2017. On the basis of the evidence adduced at the evidentiary hearing, the trial court found, by clear and convincing evidence, that the plaintiffs had a parent-like relationship with B and that a denial of visitation would cause B real and significant harm. The trial court explained: "This child is five years old. During his life, he has suffered the loss of his father as a result of his incarceration for approximately two years, being 40 percent of the child's life. [After] [t]he death of his mother on March 8, 2016, the cessation of any meaningful contact with his maternal grandparents for the last year as a result of the unilateral actions of the father is clearly harmful to the child. As . Humphrey articulated in his testimony and report, the death of the child's mother, compounded with the unexplained disappearance of the maternal grandparents, is very detrimental to the child and would cause real and significant harm to the child.... Humphrey also opined that disruptive relationships in the life of a child can have deleterious effects for the child, including mood problems, insecurity and problems with socialization and self-confidence. The death of the mother cannot be changed. The cessation of the child's contact with the maternal grandparents can be changed by the court. The father, in terminating a support for the child in the form of . consistent and loving figures in the life of the child, the maternal grandparents, is not acting in the best interest of the child. Contact with the child's mother's family provides a source of information to the child as to the mother that he no longer gets to see by virtue of her death. The emotional development of the child in dealing with the loss of his mother and the cessation of contact with the maternal grandparents clearly is harmful to the child and not in the best interest of the child. The court thereby, having found the existence of a parent-like relationship between the child and the maternal grandparents, also finds that the termination of that relationship does cause a real and significant harm to the child." The trial court granted the plaintiffs' petition for visitation, awarding Diane Boisvert visitation "every other weekend from Friday at 5 p.m. until Sunday at 5 p.m.," and Thomas Boisvert visitation "every Wednesday from the end of school each Wednesday, or noon if there is no school, until 8 p.m." The trial court also imposed the following terms and conditions on visitation: (1) "[t]he parties shall not disparage the other parties in the presence of the minor child"; (2) "[a]ll communication between the parties regarding visitation and/or the minor child shall be via text message or other written communication"; and (3) "[n]othing herein shall prohibit the parties [from] expanding the visitation for any specific visit as agreed by [the] parties in writing by the parties." The defendant filed an appeal from the trial court's judgment. Shortly thereafter, the defendant also filed a postjudgment motion for order, pursuant to Practice Book § 25-24 (a), asking the trial court to enter an order requiring the plaintiffs to "allow no contact between [the] minor child [B] and a certain third party, Regina Riddell ." The defendant represented in his motion that he had "asked the plaintiffs to allow no contact between the minor child and . Riddell but that the plaintiffs ha[d] refused to give assurance that they [would] honor such request." The defendant argued that the plaintiffs' refusal to honor his request constituted a denial of his fundamental parental right to make decisions regarding B's care, control and associations. The trial court conducted a hearing on the defendant's motion at which the plaintiffs' counsel explained that the defendant's motion "stems from . Diane Boisvert, having her daughter living in her house, her daughter [Riddell] . is an adult, and it stems from the request that [Riddell] not be present for any of the visitation." The plaintiffs' counsel continued: "[T]here have been no documented concerns of any harm that would come to the child from [Riddell]. This was never brought up during the trial about [Riddell's] presence being a concern. And so this seems like an unreasonable request ." The defendant did not testify at the hearing and presented no evidence in support of his motion. The trial court denied the defendant's postjudgment motion on the ground that there was "not one scintilla of evidence to show that [B's contact with Riddell] is inappropriate, puts the child in any danger, or reduces the level of care." The trial court noted that "visitation is always an open issue, it's never cast in stone," and, if an order of visitation puts a child at risk or is not in a child's best interest, "then the court can always modify or terminate the visitation ." The trial court explained, however, that it was not otherwise "going to micromanage" the visitation because "[there are] literally millions and millions of circumstances that may ultimately follow ." The defendant subsequently filed a motion to reargue, contending that "it was irrelevant that the defendant failed to produce evidence to show the child could be harmed if the defendant's decisions were not complied with" because the defendant is a fit parent whose decisions must be presumed to be in the best interest of his child. The defendant argued that "[t]he constitutional limitations [that] constrain the granting of third-party visitation orders necessarily apply with equal force to the terms and conditions of the visitation order itself," and, as such, the trial court is obligated to "craft orders [that] preserve, to the extent possible, a parent's fundamental right to make parenting decisions." (Emphasis in original.) The trial court denied the defendant's motion to reargue. The defendant then filed an application for an expedited public interest appeal from the trial court's denial of his postjudgment motions pursuant to General Statutes § 52-265a and Practice Book § 83-1. He contended that the trial court's failure to direct the plaintiffs to abide by his parental decisions regarding the care, control and custody of B violates § 46b-59 and the due process clause of the fourteenth amendment to the United States constitution. The application was granted by then Chief Justice Rogers. Thereafter, the defendant's direct appeal was transferred from the Appellate Court to this court pursuant to Practice Book § 65-1, and his direct appeal and his certified public interest appeal were consolidated for this court's review. While these appeals were pending, on January 9, 2018, the defendant filed in the trial court a postjudgment motion to open and terminate visitation, claiming that a change in circumstances had divested the trial court of subject matter jurisdiction. The defendant informed the trial court that he had offered each of the plaintiffs what he considered to be meaningful visitation in the amount of a four hour visit each month plus a four hour visit on or near a major holiday, and argued that, in light of this offer, the trial court was divested of jurisdiction because there no longer was a denial of visitation that would cause real and significant harm to B under § 46b-59 (b). Two months later, on March 22, 2018, the plaintiffs filed a motion for contempt in the trial court, alleging that the defendant had refused to comply with the third-party visitation order on the basis of his offer of visitation, which "is very limited and outside of any court orders." The defendant moved to dismiss the motion for contempt for lack of subject matter jurisdiction. The trial court denied the defendant's postjudgment motion to open and terminate visitation, determining that the defendant's unilateral offer of visitation did not divest the trial court of "subject matter jurisdiction over the action at the time it rendered the underlying judgment and issued its memorandum of decision." The trial court held a hearing on the plaintiffs' motion for contempt on July 18, 2018. On the morning of the hearing, the defendant filed a postjudgment motion to dismiss for lack of subject matter jurisdiction, again contending that his January 9, 2018 offer of visitation had divested the trial court of subject matter jurisdiction. At the hearing, the defendant argued that "nothing can be adjudicated today because of the motion I filed this morning seeking dismissal for a lack of subject matter jurisdiction." The trial court denied the defendant's motion to dismiss for lack of subject matter jurisdiction and also denied his motion to dismiss the plaintiffs' motion for contempt. On the merits of the contempt motion, the trial court heard testimony that court-ordered visitation had been refused for four months, which is "sixteen days of weekends, plus every single Wednesday ." On the basis of the evidence adduced at the hearing, the trial court found the defendant to be "in wilful contempt by clear and convincing evidence of the August 11, 2017 court orders and enter[ed] the following remedial orders: (1) The defendant shall pay the plaintiffs' [attorney's] fees in the amount of $1400. This amount shall be paid within thirty days. (2) The visitation which was previously ordered on August 11, 2017, shall resume immediately. The maternal grandmother's weekend visitation shall commence on July 20, 2018, and the maternal grandfather's Wednesday visitation shall commence on July 25, 2018. (3) In addition to the previously ordered visitation, the maternal grandmother shall have five days of continuous visitation with the minor child this summer. The dates shall be selected upon agreement of the parties. If the parties are unable to come to an agreement, the maternal grandmother shall have visitation with the minor child from August 13, 2018, through August 17, 2018." On July 23, 2018, the plaintiffs filed a second motion for contempt, alleging that the defendant had "again refused visitation," even after being "ordered to resume visitation after being found in contempt ." The trial court conducted a hearing at which the plaintiffs testified that the defendant continued to refuse to permit them any visitation with B, despite the trial court's prior orders. Following the hearing, the trial court found, by clear and convincing evidence, that "the defendant had notice of the valid court orders both on August 11, 2017, and the subsequent court order of July 19, 2018," and had "wilfully failed to comply with the orders of the court, which are clear and unambiguous, by not providing the visitation in accordance with the court orders with the plaintiff Diane Boisvert [from] July 20 through [July] 22 of 2018, and the plaintiff Thomas Boisvert on July 25, 2018." The court found the defendant to be in wilful contempt and committed him to the custody of the Department of Correction. The trial court stayed its order of incarceration, however, pending compliance with the court's order of visitation. The defendant filed an amended appeal in this court seeking review of the trial court's July 19, 2018 contempt order and the denial of his postjudgment motion to dismiss for lack of subject matter jurisdiction. The defendant's amended appeal was treated as an application for certification to file a public interest appeal pursuant to § 52-265a and Practice Book § 83-1, which was granted by Chief Justice Robinson. Thereafter, the parties filed supplemental briefs addressing the trial court's subject matter jurisdiction and the validity of the contempt order. The defendant raises the following claims in these consolidated appeals: (1) the trial court improperly denied the defendant's postjudgment motion to dismiss for lack of subject matter jurisdiction because it failed to make the requisite factual findings under Roth v. Weston , 259 Conn. 202, 789 A.2d 431 (2002) ; (2) the trial court's July 19, 2018 order of contempt is void for lack of subject matter jurisdiction; (3) the order of visitation violates the implicit requirements of § 46b-59 and the due process clause of the fourteenth amendment because it does not include, as a term and condition governing the visitation, a provision affirmatively directing the plaintiffs to abide by the defendant's decisions regarding B's care; (4) the order of visitation violates the defendant's fundamental parental rights under the due process clause because the amount of visitation is more than is necessary to further the state's compelling interest in sustaining B's relationship with the plaintiffs; and (5) the "magnitude as well as the duration of the constitutional deprivations" warrant vacatur of the order of visitation and dismissal of the plaintiffs' petition for visitation. II It will be useful at the outset to review the fundamental constitutional principles and relevant statutory provisions governing third-party visitation. A parent's right to control his or her child's upbringing was first accorded constitutional protection in two United States Supreme Court cases decided almost one century ago. See Pierce v. Society of Sisters , 268 U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) (referring to "the liberty of parents and guardians to direct the upbringing and education of children under their control"); Meyer v. Nebraska , 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923) (referring to parent's right to "bring up children"). Seventy-five years later, in Troxel v. Granville , 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the United States Supreme Court had occasion to consider whether this parental right was violated by Washington's third-party visitation statute, which permitted " '[a]ny person' to petition a superior court for visitation rights 'at any time,' and authorize[d] that court to grant such visitation rights whenever 'visitation may serve the best interest of the child.' " Id., at 60, 120 S. Ct. 2054 (plurality opinion), quoting Wash. Rev. Code § 26.10.160 (3) (2000). Pursuant to the Washington statute, Jenifer and Gary Troxel were granted visitation with their granddaughters over the objection of their mother, Tommie Granville. Id., at 60-61, 120 S. Ct. 2054. The United States Supreme Court held that the order of visitation infringed on Granville's fundamental right under the due process clause of the fourteenth amendment of the United States constitution to "make decisions concerning the care, custody, and control of her two daughters." Id., at 72, 120 S. Ct. 2054. The court noted that "[t]he Washington nonparental visitation statute [was] breathtakingly broad"; id., at 67, 120 S. Ct. 2054 ; and "directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child." Id., at 69, 120 S. Ct. 2054. Because the due process clause "does not permit a [s]tate to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a 'better' decision could be made," the court held that Washington's third-party visitation statute was unconstitutional. Id., at 72-73, 120 S. Ct. 2054. In arriving at its conclusion, the court noted that it did not need to "define . the precise scope of the parental due process right in the visitation context" because "the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied ." Id., at 73, 120 S. Ct. 2054. In short, "the constitutional protections in this area are best 'elaborated with care.' " Id. In Roth v. Weston , supra, 259 Conn. at 205, 789 A.2d 431, this court considered whether Connecticut's then existing third-party visitation statute, General Statutes (Rev. to 2001) § 46b-59, was unconstitutional in light of Troxel . We acknowledged in Roth that parents have a fundamental constitutional right "to raise their children as they see fit," and " Troxel teaches that courts must presume that fit parents act in the best interests of their children ." (Internal quotation marks omitted.) Id., at 216, 789 A.2d 431, quoting Troxel v. Granville , supra, 530 U.S. at 68, 120 S.Ct. 2054 (plurality opinion). " Troxel confirms that among those interests lying at the core of a parent's right to care for his or her own children is the right to control their associations.... The essence of parenthood is the companionship of the child and the right to make decisions regarding his or her care, control, education, health, religion and association[s]." (Citation omitted.) Roth v. Weston , supra, at 216-17, 789 A.2d 431. Roth also recognized, however, that there are "limitations on these parental rights." Id., at 224, 789 A.2d 431. One such limitation occurs when an otherwise fit parent denies his or her child access to an individual who has a parent-like relationship with the child and "the parent's decision regarding visitation will cause the child to suffer real and substantial emotional harm ." Id., at 226, 789 A.2d 431. Under such circumstances, the state has a compelling interest in protecting "the child's own complementary interest in preserving [parent-like] relationships that serve [the child's] welfare" by avoiding the "serious and immediate harm to [the] child" that would result from the parent's decision to terminate or impair the child's relationship with the third party. Id., at 225, 789 A.2d 431 ; see also id. ("[The] issue of grandparent visitation is not simply 'a bipolar struggle between the parents and the [s]tate over who has final authority to determine what is in a child's best interests. There is at a minimum a third individual, whose interests are implicated in every case to which the statute applies-the child.' "), quoting Troxel v. Granville , supra, 530 U.S. at 86, 120 S.Ct. 2054 (Stevens, J., dissenting). Roth holds that a third party seeking visitation over a fit parent's objection must surmount a "high hurdle"; Roth v. Weston , supra, at 229, 789 A.2d 431 ; and requires the petitioning party to establish, by clear and convincing evidence, that (1) a parent-like relationship exists, and (2) denial of visitation would cause the child to suffer real and significant harm. Id., at 225-29, 789 A.2d 431. These two factors, commonly referred to as the Roth factors, "must be satisfied in order for a court: (1) to have jurisdiction over a petition for visitation contrary to the wishes of a fit parent; and (2) to grant such a petition." Id., at 234, 789 A.2d 431. Once this high burden is met, visitation "is appropriate and should be ordered." DiGiovanna v. St. George , 300 Conn. 59, 73, 12 A.3d 900 (2011). In 2012, our legislature amended § 46b-59 in accordance with the constitutional standards set forth in Roth . See Public Acts 2012, No. 12-137, § 1 (P.A. 12-137). The amended statute provides that "[a]ny person may submit a verified petition to the Superior Court for the right of visitation with any minor child. Such petition shall include specific and good-faith allegations that (1) a parent-like relationship exists between the person and the minor child, and (2) denial of visitation would cause real and significant harm. Subject to subsection (e) of this section, the court shall grant the right of visitation with any minor child to any person if the court finds after hearing and by clear and convincing evidence that a parent-like relationship exists between the person and the minor child and denial of visitation would cause real and significant harm." General Statutes § 46b-59 (b). "In determining whether a parent-like relationship exists . the Superior Court may consider, but shall not be limited to, the following factors: (1) The existence and length of a relationship between the person and the minor child prior to the submission of a petition pursuant to this section; (2) The length of time that the relationship between the person and the minor child has been disrupted; (3) The specific parent-like activities of the person seeking visitation toward the minor child; (4) Any evidence that the person seeking visitation has unreasonably undermined the authority and discretion of the custodial parent; (5) The significant absence of a parent from the life of a minor child; (6) The death of one of the minor child's parents; (7) The physical separation of the parents of the minor child; (8) The fitness of the person seeking visitation; and (9) The fitness of the custodial parent." General Statutes § 46b-59 (c). Additionally, if the third party seeking visitation is a grandparent, the trial court may consider "the history of regular contact and proof of a close and substantial relationship between the grandparent and the minor child." General Statutes § 46b-59 (d). Section 46b-59 (e) provides in relevant part that a trial court granting visitation "shall set forth the terms and conditions of visitation including, but not limited to, the schedule of visitation, including the dates or days, time and place or places in which the visitation can occur, whether overnight visitation will be allowed and any other terms and conditions that the court determines are in the best interest of the minor child, provided such conditions shall not be contingent upon any order of financial support by the court. In determining the best interest of the minor child, the court shall consider the wishes of the minor child if such minor child is of sufficient age and capable of forming an intelligent opinion. In determining the terms and conditions of visitation, the court may consider . the effect that such visitation will have on the relationship between the parents or guardians of the minor child and the minor child ." The statute also makes clear that a grant of visitation does not create any "parental rights in the person or persons to whom such visitation rights are granted ." General Statutes § 46b-59 (f). In DiGiovanna v. St. George , supra, 300 Conn. at 73, 12 A.3d 900, we specifically addressed the trial court's authority to fashion terms and conditions governing third-party visitation. In that case, the plaintiff sought visitation with the child over the mother's intense objection. Id., at 61-62, 65, 12 A.3d 900. The mother's opposition to third-party visitation was so vehement and unrestrained that, even though the trial court found by clear and convincing evidence that both of the Roth factors had been satisfied, the trial court nonetheless denied the plaintiff's petition for visitation because it believed that the mother would take her anger out on the child and, on that basis, concluded that visitation ultimately was not in the child's best interest. Id., at 67, 12 A.3d 900. This court reversed the judgment of the trial court, explaining that the best interest of the child standard cannot "overcome the Roth standard for ordering visitation." Id., at 69, 12 A.3d 900. We clarified that the best interest of the child standard "determines how [an] order of visitation should be implemented"; (emphasis in original) id., at 73, 12 A.3d 900 ; and the trial court has many "tools in its arsenal to effectuate visitation." Id., at 75, 12 A.3d 900. For example, the trial court has authority under General Statutes § 46b-56 (i) to order both parents and third parties to undergo counseling; id., at 74-75, 12 A.3d 900 ; and can "[prescribe] specific conditions under which visitation would take place to address legitimate concerns of either party." Id., at 75, 12 A.3d 900. With specific reference to the mother's concern that "the plaintiff had attempted to buy the [child's] affections by excessively spending money on [him] and buying [him] toys and gifts," we observed that the trial court "could have limited the circumstances under which the plaintiff could buy things for" the child. Id., at 75 n.8, 12 A.3d 900. We noted, finally, that the trial court can always use "its contempt powers to coerce . compliance" with visitation orders and may even "consider whether to order intervention by the [D]epartment [of Children and Families]." Id., at 76, 12 A.3d 900. DiGiovanna clarifies that the best interest of the child standard "guides the court in determining how best to foster" the relationship between the third party and the child once visitation is ordered under the Roth factors, as codified in § 46b-59, and the trial court may, in implementing the visitation order, consider "counseling, as well as restrictions on the time, place, manner, and extent of visitation." Id., at 78, 12 A.3d 900. III With this legal framework in mind, we turn to the defendant's claims on appeal. A threshold issue involves the defendant's challenge to the trial court's subject matter jurisdiction. The jurisdictional attack is predicated on the defendant's postjudgment offer of visitation to the plaintiffs, which was conveyed to the plaintiffs by letter dated January 9, 2018. The defendant argued in the trial court that this postjudgment offer of visitation deprived the court of subject matter jurisdiction over the action because there no longer was a "denial of visitation" that "would cause real and significant harm." General Statutes § 46b-59 (b) ; see also Roth v. Weston , supra, 259 Conn. at 234, 789 A.2d 431 (holding that both Roth factors "must be satisfied in order for a court . to have jurisdiction over a petition for visitation contrary to the wishes of a fit parent"). The defendant acknowledged that the trial court may have "previously . possessed subject matter jurisdiction over this action" because there was a complete denial of visitation when the trial court granted the plaintiffs' petition for visitation, but contended that his subsequent "offer of meaningful visitation serves to deprive [the] court of jurisdiction over this action presently ." (Emphasis in original.) He renews this claim on appeal. The defendant's argument is predicated on Denardo v. Bergamo , 272 Conn. 500, 509, 863 A.2d 686 (2005), which he contends requires application of the Roth factors to a postjudgment motion to dismiss filed by a fit parent. The defendant's reliance on Denardo is misplaced, however, because Denardo involved an award of third-party visitation that was not supported by the Roth factors in the first instance. See id., at 503, 863 A.2d 686. In Denardo , the trial court's initial order granting visitation to the paternal grandparents, over the mother's objection, was made prior to this court's decision in Roth . Id., at 505-506, 863 A.2d 686. The trial court therefore based its initial ruling on the "best interest of the child standard [which at the time] was in accord with the judicial gloss that this court had applied to [the pre- Roth version of] § 46b-59 ." Id., at 506, 863 A.2d 686. After our decision in Roth was issued, the defendant in Denardo moved to modify and terminate the third-party visitation order on the ground that the standard articulated in Roth applied retrospectively. Id., at 507, 863 A.2d 686. The trial court agreed, and this court affirmed, stating: "The plaintiffs failed to allege or attempt to prove that their relationship with the child was similar to a parent-child relationship and that denial of visitation would cause real and significant harm to the child. Without those specific, good faith allegations or such proof, either at the time of the filing of their petition or at the time of the hearing on the defendant's motion, the trial court's prior order of visitation was rendered without subject matter jurisdiction." Id., at 514, 863 A.2d 686. Although Denardo held that the Roth factors apply retroactively to third-party visitation orders issued under the pre- Roth best interest of the child standard, that case says nothing about the jurisdiction of a trial court to adjudicate a postjudgment motion to dismiss on the basis of events that occur after an award of third-party visitation is made by a court duly applying the Roth factors under § 46b-59, as amended by P.A. 12-137. Denardo , therefore, lends no support to the defendant's jurisdictional claim. The defendant's jurisdictional argument is not cast in terms of mootness, but he appears to argue that his postjudgment offer of visitation rendered the action moot because he voluntarily remedied any legally cognizable harm. "Mootness implicates [the] court's subject matter jurisdiction" and, therefore, "presents a question of law over which our review is plenary." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority , 291 Conn. 502, 506-507, 970 A.2d 578 (2009). "Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because a change in the condition of affairs between the parties.... A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists" and "the court can no longer grant any practical relief." (Internal quotation marks omitted.) Taylor v. Zoning Board of Appeals , 71 Conn. App. 43, 46, 800 A.2d 641 (2002). "It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a . court of its power to determine the legality of the practice," because, "[i]f it did, the courts would be compelled to leave [t]he defendant . free to return to his old ways." (Internal quotation marks omitted.) Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. , 528 U.S. 167, 189, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000). The voluntary cessation exception to the mootness doctrine is founded on "the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior." City News & Novelty, Inc. v. Waukesha , 531 U.S. 278, 284 n.1, 121 S. Ct. 743, 148 L. Ed. 2d 757 (2001). Thus, the standard "for determining whether a case has been mooted by the defendant's voluntary conduct is stringent," and a case becomes moot only "if subsequent events [make] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." (Internal quotation marks omitted.) Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. , supra, at 189, 120 S.Ct. 693. "The heavy burden of persua[ding] the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness." (Internal quotation marks omitted.) Id. ; see also Windels v. Environmental Protection Commission , 284 Conn. 268, 281, 933 A.2d 256 (2007) (holding that defendant's voluntary cessation of challenged activity did not render case moot because defendant had "not alleged, much less established, that it does not intend to resume" challenged activity). Even if we were to assume, for the sake of argument, that a controversy involving an existing order of third-party visitation could be rendered moot under some circumstances due to the custodial parent's voluntary offer to allow meaningful visitation, the defendant has failed to satisfy his heavy burden of establishing that his January 9, 2018 offer of visitation was made in good faith and with the intention to permit the plaintiffs to visit with B, rather than to avoid or undermine the purpose of the third-party visitation order. The record reflects that the defendant consistently and vehemently has opposed the plaintiffs' visitation with B. Indeed, the defendant's opposition to the plaintiffs' visitation is so intense that he has refused to comply with court-ordered visitation for months at a time and twice has been found to be in contempt of court, resulting in an order of commitment to the Department of Correction. The defendant's voluntary offer of visitation, on these facts, plainly did not divest the trial court of subject matter jurisdiction. Our conclusion on this point also disposes of the defendant's claim that the trial court's July 19, 2018 order of contempt was void for lack of subject matter jurisdiction. Having determined that the trial court had subject matter jurisdiction over this matter, we hold that the defendant's challenge to the contempt order must fail. See Eldridge v. Eldridge , 244 Conn. 523, 530, 710 A.2d 757 (1998) ("[a]n order of the court must be obeyed until it has been modified or successfully challenged" [internal quotation marks omitted] ). Therefore, the trial court's July 19, 2018 order of contempt is affirmed. IV The defendant claims that the trial court's order of visitation violated the implicit requirements of § 46b-59 and the due process clause of the fourteenth amendment to the United States constitution because it failed to include a provision affirmatively directing the plaintiffs to abide by his decisions regarding B's care during the duration of their visit with B. It is important to understand at the outset that the defendant does not challenge the trial court's Roth findings or the award of visitation in favor of the plaintiffs. He contends, instead, that the third-party visitation order is unlawful because both § 46b-59 and the due process clause require a trial court granting third-party visitation to "affirmatively [direct] the third party not to override the parent's decisions concerning the minor child's care, control, education, health, religion, and associations." (Emphasis omitted.) We disagree. A We first address defendant's claim regarding the implicit requirements of § 46b-59. "[I]ssues of statutory construction raise questions of law, over which we exercise plenary review.... The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.... When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Ugrin v. Cheshire , 307 Conn. 364, 379-80, 54 A.3d 532 (2012). Section 46b-59 (e) expressly addresses the terms and conditions governing a third-party visitation order. It provides: "If the Superior Court grants the right of visitation pursuant to subsection (b) of this section, the court shall set forth the terms and conditions of visitation including, but not limited to, the schedule of visitation, including the dates or days, time and place or places in which the visitation can occur, whether overnight visitation will be allowed and any other terms and conditions that the court determines are in the best interest of the minor child . In determining the best interest of the minor child, the court shall consider the wishes of the minor child if such minor child is of sufficient age and capable of forming an intelligent opinion. In determining the terms and conditions of visitation, the court may consider (1) the effect that such visitation will have on the relationship between the parents or guardians of the minor child and the minor child, and (2) the effect on the minor child of any domestic violence that has occurred between or among parents, grandparents, persons seeking visitation and the minor child." General Statutes § 46b-59 (e). Nothing in § 46b-59 requires the trial court to include, as a term and condition governing the order of third-party visitation, a provision affirmatively directing the third party not to override a fit parent's decisions regarding the child's care. To the contrary, the statute plainly provides the trial court with the authority to craft "terms and conditions that the court determines are in the best interest of the minor child ." General Statutes § 46b-59 (e) ; see also DiGiovanna v. St. George , supra, 300 Conn. at 73, 12 A.3d 900 (clarifying "that the best interest of the child determines how th[e] order of visitation should be implemented" [emphasis in original] ). We therefore reject the defendant's statutory argument. B The defendant next argues that the due process clause of the fourteenth amendment compels a trial court ordering third-party visitation to include a provision requiring the third party to abide by all of a fit parent's decisions regarding the child's care during the visitation. This claim is based on the "traditional presumption that a fit parent will act in the best interest of his or her child." Troxel v. Granville , supra, 530 U.S. at 69, 120 S.Ct. 2054 (plurality opinion); see also Roth v. Weston , supra, 259 Conn. at 221, 789 A.2d 431. In light of this traditional presumption, the defendant contends that § 46b-59 is unconstitutional as applied to the facts of this case because the trial court's visitation order permits the plaintiffs to override the defendant's exercise of his fundamental parental right to make decisions regarding B's care. "Determining the constitutionality of a statute presents a question of law over which our review is plenary.... It [also] is well established that a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt.... The court will indulge in every presumption in favor of the statute's constitutionality . Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp. , 317 Conn. 357, 405, 119 A.3d 462 (2015). In evaluating the constitutionality of a statute, moreover, we will construe the statute in such a manner as "to save its constitutionality," rather than "to destroy it." State v. Indrisano , 228 Conn. 795, 805, 640 A.2d 986 (1994). In doing so, "we may also add interpretative gloss to a challenged statute in order to render it constitutional. In construing a statute, the court must search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent." (Internal quotation marks omitted). Id., at 805-806, 640 A.2d 986. The due process clause of the fourteenth amendment requires a court to apply the "traditional presumption that a fit parent will act in the best interest of his or her child"; Troxel v. Granville , supra, 530 U.S. at 69, 120 S.Ct. 2054 (plurality opinion); see also Roth v. Weston , supra, 259 Conn. at 221, 789 A.2d 431 ; and to accord "special weight" to a fit parent's determination of his or her child's best interest. Troxel v. Granville , supra, at 69, 120 S.Ct. 2054. Indeed, it is because of this constitutional deference to a fit parent's decision-making authority that § 46b-59 contains an implicit but "rebuttable presumption that visitation that is opposed by a fit parent is not in a child's best interest." Roth v. Weston , supra, at 234, 789 A.2d 431. In order to obtain an order of visitation over a fit parent's objection, a third party must surmount a "high hurdle" and demonstrate, by clear and convincing evidence, both that a parent-like relationship exists and that disruption of the third-party relationship would cause the child to suffer real and significant harm. Id., at 229, 789 A.2d 431. Once this high hurdle has been surmounted, however, and the trial court orders third-party visitation over a fit parent's objection, the "traditional presumption" relied on by the defendant has been rebutted with respect to whether visitation is in the child's best interest. Stated another way, once there has been a judicial determination that a parent's denial of visitation would cause the child to suffer real and significant harm, then it no longer can be presumed that a fit parent is acting in his or her child's best interest in connection with the third-party visitation. The Roth standard itself is built on the premise that judicial intervention is warranted precisely because the interactions between an otherwise fit parent and a third party seeking visitation can be so fraught with hostility, tension, and resentment-often for reasons unrelated to the child-that the parent is unable or unwilling to act in the child's best interest, resulting in real and significant harm to the child. None of this means that a fit parent who is subject to a third-party visitation order has forfeited his or her parental rights or that the third party has obtained parental rights by virtue of the order of visitation. A fit parent retains the "quintessential rights of parenthood," which "include the right to make medical, educational, religious and other decisions that affect the most fundamental aspects of the child's life ." (Internal quotation marks omitted.) Fish v. Fish , 285 Conn. 24, 58, 939 A.2d 1040 (2008). Likewise, § 46b-59 (f) explicitly provides that "[v]isitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted ." These precepts remain fixed and unchanged, but they do not confer on the parent an absolute right to dictate the terms and conditions governing the visitation. The animating purpose of the statute is to sustain and nurture the deep, emotional bond between the child and the third party, and the third party's caregiving choices for the child while acting in a "parent-like" capacity necessarily are integral to the formation and sustenance of that bond-a bond that the trial court has determined must be preserved to prevent real and significant harm to the child. The fundamental purpose of the statute would be thwarted if the parent opposing third-party visitation were given unfettered authority to micromanage the visitation and to replace the third party's caregiving choices during the period of visitation with his or her own. We recognize that, during the course of the child's visitation with the third party, the third party may make decisions for the child that potentially implicate a parent's fundamental parental rights to direct his or her child's upbringing, and the longer the period of visitation, the more decisions that the third party must make. See Roth v. Weston , supra, 259 Conn. at 229 n.13, 789 A.2d 431 (recognizing that "[v]isitation is a limited form of custody during the time the visitation rights are being exercised" [internal quotation marks omitted] ). Most of the third party's decisions during visitation will be of the mundane variety, and, less frequently, the third party may need to make weighty, discretionary, and sometimes instantaneous decisions pertaining to the child's health, safety, and well-being. The question we must resolve in the present appeal is, when a conflict arises between a fit parent and a third party regarding the third party's caregiving decisions that implicate the parent's constitutional rights, how should that conflict be resolved so as to preserve the parent's rights, while at the same time sustaining the child's relationship with the third party? To answer this question, we turn to § 46b-59 (e), which provides the trial court with the authority to devise terms and conditions governing third-party visitation. Section 46b-59 (e) provides in relevant part that if visitation is granted, "the court shall set forth the terms and conditions of visitation including, but not limited to, the schedule of visitation, including the dates or days, time and place or places in which the visitation can occur, whether overnight visitation will be allowed and any other terms and conditions that the court determines are in the best interest of the minor child . In determining the best interest of the minor child, the court shall consider the wishes of the minor child if such minor child is of sufficient age and capable of forming an intelligent opinion. In determining the terms and conditions of visitation, the court may consider . the effect that such visitation will have on the relationship between the parents or guardians of the minor child and the minor child ." (Emphasis added.) General Statutes § 46b-59 (e) (1). Thus, in setting forth terms and conditions governing the order of third-party visitation, the trial court can and should consider the effect that the visitation order will have on the parent-child relationship, which include any good faith concerns that the parent might have regarding the third party's caregiving choices and how those choices may infringe on the parent's fundamental rights relating to the child's upbringing. The statute therefore provides the trial court with the ability to craft particularized terms and conditions to protect the parental prerogatives at the heart of the parent-child relationship while simultaneously preserving the constitutive elements of a meaningful third-party visitation. In assessing what terms and conditions may be in the "best interest of the minor child" under § 46b-59 (e), the trial court must accord "special weight" to a fit parent's preferences; Troxel v. Granville , supra, 530 U.S. at 69, 120 S.Ct. 2054 (plurality opinion); when those preferences pertain to the most fundamental aspects of the child's life, such as the child's "education, health, religion, and association." Roth v. Weston , supra, 259 Conn. at 217, 789 A.2d 431 ; see also Fish v. Fish , supra, 285 Conn. at 58, 939 A.2d 1040 (describing parent's "right to make medical, educational, religious and other decisions that affect the most fundamental aspects of the child's life during the custodial period"). When it comes to these particular matters, properly tailored parental requests made in good faith should not be rejected by the trial court solely on the basis of the third party's conflicting views or the "judge's [own] personal or lifestyle preferences." Fish v. Fish , supra, at 47, 939 A.2d 1040. For example, if a parent requests as a term and condition of visitation an order prohibiting the third party from taking the child to religious services in the third party's faith because the child is being raised in a different faith (or no faith at all), the trial court should not deny this parental request because he or she (or the third party) believes that the child would benefit from exposure to the other religion. If made in good faith, these types of parental requests, which affect "the most fundamental aspects of the child's life"; id., at 58, 939 A.2d 1040 ; are not subject to judicial override under color of an order of third-party visitation. See General Statutes § 46b-59 (f). Two caveats are necessary. First, many decisions do not fall within the scope of this category of fundamental parental prerogative, and, with respect to those matters, the trial court has discretion under the statute to formulate terms and conditions that serve the best interest of the child. In doing so, the trial court always should take into account the fit parent's good faith preferences, but those preferences are not entitled to "special weight" under the due process clause of the fourteenth amendment. See Troxel v. Granville , supra, 530 U.S. at 69, 120 S.Ct. 2054 (plurality opinion); Roth v. Weston , supra, 259 Conn. at 217, 789 A.2d 431. Second, even in the realm of decisionmaking involving those matters that affect the most fundamental aspects of a child's upbringing, the trial court should satisfy itself that the parental request is made in good faith before according it the special weight the constitution requires. A good faith inquiry is necessary because the relationship between the parent and the third party may be so toxic, and the parent's opposition to the visitation may be so vehement, that the parent may try to undermine the third-party visitation by imposing unreasonable and unfounded terms and conditions. See DiGiovanna v. St. George , supra, 300 Conn. at 78, 12 A.3d 900 (declining to create loophole by which recalcitrant parent may thwart intent of third-party visitation statute). By way of example, perhaps the third party and the child always have shared a special interest in baseball, and the parent requests an order preventing the third party from taking the child to baseball games or playing baseball with the child out of an alleged concern for the child's health and safety due to the risk of harm. The third party objects and questions the good faith nature of the parental request, in light of the undisputed fact that the parent allows the child to play baseball at all other times. After considering the facts and the parties' explanations, the trial court may deny the requested term and condition, even though it allegedly implicates a fundamental parental right, if the trial court finds that the parental request represents a bad faith attempt to undermine the third-party relationship. We can hypothesize an infinite variety of factual scenarios and a limitless number of parental and third-party motivations that may require judicial resolution, depending on the facts and circumstances of each individual case. Given the depth and complexity of the issues involved, we believe that the trial court is in the best position to "[prescribe] specific conditions under which visitation [should] take place to address legitimate concerns of either party." DiGiovanna v. St. George , supra, 300 Conn. at 75, 12 A.3d 900. The present case illustrates the need for the parties to follow certain commonsense procedures to provide an optimal framework for the trial court to determine what terms and conditions may be necessary under § 46b-59 (e). A party seeking to impose terms and conditions on the order of visitation must make a specific and timely request. A request is specific if it is tailored to identify and ameliorate the party's concern and is accompanied by an explanation of how the requested terms and conditions further the best interest of the child. See General Statutes § 46b-59 (e) ("terms and conditions that the court determines are in the best interest of the minor child"). If the requesting party is a parent who believes that the requested terms and conditions are necessary to protect his or her fundamental parental rights, the parent must alert the trial court to the alleged constitutional nature of the request and the right asserted. See General Statutes § 46b-59 (f) ("[t]he grant of such visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon . the parental rights with respect to such child"). The explanation provided to the trial court need not be exhaustive, but it should be sufficient to alert the trial court to the content and contours of the requesting party's claim. The required explanation, and the reasons for any opposition, ordinarily will be based on the evidence elicited during the hearing on the contested petition for visitation. If additional evidence is needed, an evidentiary hearing will be necessary to enable the trial court to make the factual determinations and credibility assessments required for a decision. The evidence not only will enable the trial court to decide whether the requested terms and conditions are made in good faith, but also will allow the trial court to weigh the competing considerations and determine whether it is possible to fashion terms and conditions that may accommodate competing interests, wishes, and needs. A request is timely if it is made without unreasonable delay once the requesting party knows or reasonably should know of the factual circumstances that prompt the requested terms and conditions. The requesting party is not barred from belatedly requesting such terms and conditions in a postjudgment motion, as was done in this case, but the belated nature of the request may support an inference that it is not made in good faith, if the inference reasonably is justified under the surrounding circumstances. The requirements of specificity and timeliness are not intended to preclude good faith requests for reasonable terms and conditions that may arise as circumstances develop over time, but to provide an optimal and efficient procedure by which the trial court can evaluate the requested terms and conditions and fashion appropriate relief responsive to the parties' concerns and the child's needs. Ultimately it is up to the trial court, as the finder of fact and the arbiter of credibility, to determine the issues relating to the terms and conditions of visitation, including, without limitation, whether the requested terms and conditions reflect a parent's sincerely held belief regarding a fundamental aspect of the child's upbringing or whether they are a pretext to undermine the third-party relationship or the order of visitation. The trial court has many "tools in its arsenal" to protect a fit parent's fundamental rights while simultaneously fostering the third-party relationship by effectuating the order of visitation. DiGiovanna v. St. George , supra, 300 Conn. at 75, 78, 12 A.3d 900 ; see General Statutes § 46b-56. Applying these principles to the facts of this case, we conclude that the trial court properly denied the defendant's request for a broad order requiring the plaintiffs to abide by all of his parental decisions regarding B's care during the course of the plaintiffs' visitation. The defendant's motion was untimely because it was filed after the close of evidence and the issuance of the trial court's order of third-party visitation. Moreover, for the reasons previously explained, the due process clause of the fourteenth amendment does not require the trial court to issue a broad order requiring a third party to abide by all of a parent's decisions regarding the child's care, regardless of the nature of the parent's decisions, the reasons for the request, whether the decisions further the child's best interest, and whether they implicate the parent's constitutional right to guide his or her child's upbringing. As the United States Supreme Court has cautioned, "the constitutional protections in this area are best 'elaborated with care,' " because "[state court] adjudication in this context occurs on a case-by-case basis ." Troxel v. Granville , supra, 530 U.S. at 73, 120 S.Ct. 2054 (plurality opinion). The assessment of what terms and conditions are necessary in the third-party visitation context is highly fact dependent; see DiGiovanna v. St. George , supra, 300 Conn. at 78, 12 A.3d 900 ; and cannot be undertaken "in a factual vacuum." Lehrer v. Davis , 214 Conn. 232, 234, 571 A.2d 691 (1990) ; see id., at 235-36, 571 A.2d 691 (holding that record was inadequate to undertake "a constitutional review of § 46b-59"). Turning to the defendant's specific request for a no contact order between B and Riddell, we note that this request was untimely and unaccompanied by an explanation regarding its origin or basis. The request, rather, was formulated as a naked demand resting on the classic invocation of absolute parental authority used to preempt discussion: "Because I'm the parent and I said so." This resort to fiat reflects a perfectly adequate parenting position in many day-to-day parent-child interactions, but it will not suffice when a judicial authority has determined that state interference in the parent-child relationship "is justified" because the third party has "demonstrated a compelling need [for third-party visitation] to protect the child from harm." Roth v. Weston , supra, 259 Conn. at 229, 789 A.2d 431. Although the right to control a child's associations is a fundamental parental right; see id., at 216-17, 789 A.2d 431 ; in the absence of an explanation, the trial court cannot evaluate the good faith nature of the parental request, assess the need for evidence to resolve disputed questions of fact, or fashion appropriate relief. See footnote 14 of this opinion. Because the defendant failed to give any reason in support of the requested term and condition regarding B's contact with Riddell, we conclude that the trial court properly denied the defendant's postjudgment motion. We emphasize that our holding confers no parental rights on the plaintiffs; nor does it bestow any visitation rights on Riddell. As the trial court aptly observed, the order of visitation simply gave "visitation to the plaintiffs" and "[i]n no way, shape, or form did the court grant any visitation to [Riddell]" or create any parental rights on behalf of the plaintiffs. The trial court simply found that in the absence of any reason or any evidence to justify the defendant's requested restriction on the order of third-party visitation, there was no basis to find that the requested restriction was in the child's best interest. We agree and, therefore, affirm the judgment of the trial court. V Lastly, the defendant claims that the amount of visitation awarded to the plaintiffs violates his fundamental parental rights under the fourteenth amendment to the United States constitution. The defendant points out that § 46b-59 is subject to strict scrutiny; Roth v. Weston , supra, 259 Conn. at 218, 789 A.2d 431 ; and argues that the amount of visitation awarded under the statute must be narrowly tailored to further the state's compelling interest in sustaining the child's relationship with the third party. Under this theory, the defendant contends that any visitation in excess of the amount minimally necessary to sustain the child's relationship with the third party "constitutes a significant interference" with his parental rights. Although the defendant filed various postjudgment motions challenging the order of visitation, he never asked the trial court to reconsider the amount of visitation or to articulate the basis for the amount of visitation awarded to the plaintiffs. Because the trial court never had an opportunity to rule on this issue, we conclude that it is not preserved for our review. See, e.g., Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc. , 311 Conn. 123, 142, 84 A.3d 840 (2014) ("[i]t is well settled that [o]ur case law and rules of practice generally limit [an appellate] court's review to issues that are distinctly raised at trial" [internal quotation marks omitted] ). Nonetheless, because the defendant's claim implicates his fundamental parental rights under the United States constitution, we consider whether review is appropriate under State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding , "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error, (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original; footnote omitted.) Id. ; see also In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding ). The burden is on the party seeking review of unpreserved constitutional claims under Golding to demonstrate both that the record is adequate for review and that the claim "is indeed a violation of a fundamental constitutional right." State v. Golding , supra, 213 Conn. at 240, 567 A.2d 823. "If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant's claim." Id. The trial court is in the best position to determine how the order of visitation should be implemented; DiGiovanna v. St. George , supra, 300 Conn. at 73, 12 A.3d 900 ; and must set forth the "terms and conditions of visitation including, but not limited to, the schedule of visitation, including the dates or days, time and place or places in which the visitation can occur, [and] whether overnight visitation will be allowed ." General Statutes § 46b-59 (e). "[T]he best interest of the child [standard] guides the court" in crafting these terms and conditions and "in determining how best to foster [the third-party] relationship." DiGiovanna v. St. George , supra, at 78, 12 A.3d 900. The trial court must weigh "all the facts and circumstances of the family situation. Each case is unique. The task is sensitive and delicate, and involves the most difficult and agonizing decision that a trial judge must make." (Internal quotation marks omitted.) Gallo v. Gallo , 184 Conn. 36, 44, 440 A.2d 782 (1981). The trial court's factual findings may be reversed on appeal only if they are clearly erroneous. See DiGiovanna v. St. George , supra, at 69, 12 A.3d 900 ("[t]o the extent that the defendant claims that the trial court should have credited certain evidence over other evidence that the court did credit, it is well settled that such matters are exclusively within the province of the trial court"); see also Misthopoulos v. Misthopoulos , 297 Conn. 358, 377, 999 A.2d 721 (2010) ("To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous.... A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." [Internal quotation marks omitted.] ). In light of the inherently fact bound nature of the trial court's schedule of visitation, we conclude that the record is inadequate to review the defendant's constitutional challenge to the amount of visitation awarded to the plaintiffs under § 46b-59 (e). See Lehrer v. Davis , supra, 214 Conn. at 234, 236, 571 A.2d 691 (recognizing "[t]he [fact bound] nature of . constitutional challenge[s] to § 46b-59" and counseling "against the adjudication of constitutional questions in a factual vacuum"). The defendant did not request, and therefore the trial court did not provide, particularized factual findings regarding the amount of visitation necessary to sustain the plaintiffs' relationship with B. "Without the necessary factual and legal conclusions furnished by the trial court . any decision by us respecting [the defendant's claims] would be entirely speculative." (Internal quotation marks omitted.) State v. Brunetti , 279 Conn. 39, 63, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007). The record is "inadequate to establish whether the alleged constitutional violation did, in fact, occur"; id., at 64, 901 A.2d 1 ; and, therefore, we decline to review the defendant's unpreserved constitutional claim. The judgment is affirmed. In this opinion the other justices concurred. General Statutes § 46b-59 provides: "(a) As used in this section: (1) 'Grandparent' means a grandparent or great-grandparent related to a minor child by (A) blood, (B) marriage, or (C) adoption of the minor child by a child of the grandparent; and (2) 'Real and significant harm' means that the minor child is neglected, as defined in section 46b-120, or uncared for, as defined in said section. "(b) Any person may submit a verified petition to the Superior Court for the right of visitation with any minor child. Such petition shall include specific and good-faith allegations that (1) a parent-like relationship exists between the person and the minor child, and (2) denial of visitation would cause real and significant harm. Subject to subsection (e) of this section, the court shall grant the right of visitation with any minor child to any person if the court finds after hearing and by clear and convincing evidence that a parent-like relationship exists between the person and the minor child and denial of visitation would cause real and significant harm. "(c) In determining whether a parent-like relationship exists between the person and the minor child, the Superior Court may consider, but shall not be limited to, the following factors: (1) The existence and length of a relationship between the person and the minor child prior to the submission of a petition pursuant to this section; (2) The length of time that the relationship between the person and the minor child has been disrupted; (3) The specific parent-like activities of the person seeking visitation toward the minor child; (4) Any evidence that the person seeking visitation has unreasonably undermined the authority and discretion of the custodial parent; (5) The significant absence of a parent from the life of a minor child; (6) The death of one of the minor child's parents; (7) The physical separation of the parents of the minor child; (8) The fitness of the person seeking visitation; and (9) The fitness of the custodial parent. "(d) In determining whether a parent-like relationship exists between a grandparent seeking visitation pursuant to this section and a minor child, the Superior Court may consider, in addition to the factors enumerated in subsection (c) of this section, the history of regular contact and proof of a close and substantial relationship between the grandparent and the minor child. "(e) If the Superior Court grants the right of visitation pursuant to subsection (b) of this section, the court shall set forth the terms and conditions of visitation including, but not limited to, the schedule of visitation, including the dates or days, time and place or places in which the visitation can occur, whether overnight visitation will be allowed and any other terms and conditions that the court determines are in the best interest of the minor child, provided such conditions shall not be contingent upon any order of financial support by the court. In determining the best interest of the minor child, the court shall consider the wishes of the minor child if such minor child is of sufficient age and capable of forming an intelligent opinion. In determining the terms and conditions of visitation, the court may consider (1) the effect that such visitation will have on the relationship between the parents or guardians of the minor child and the minor child, and (2) the effect on the minor child of any domestic violence that has occurred between or among parents, grandparents, persons seeking visitation and the minor child. "(f) Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted, nor shall such visitation rights be a ground for preventing the relocation of the custodial parent. The grant of such visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon the custody of such child, the parental rights with respect to such child or the adoption of such child and any such court may include in its decree an order terminating such visitation rights. "(g) Upon motion, the court may order the payment of fees for another party, the attorney for the minor child, the guardian ad litem, or any expert by any party in accordance with such party's financial ability." The plaintiffs will be referred to collectively as "the plaintiffs," except when it is necessary to identify them individually by name. In view of this court's policy of protecting the privacy interests of juveniles, we refer to the child involved in this matter as B. See, e.g., Frank v. Dept. of Children & Families , 312 Conn. 393, 396 n.1, 94 A.3d 588 (2014). The memorandum of decision states that the plaintiffs' contact with B was terminated on June 26, 2017, but the 2017 date appears to be a scrivener's error. It is undisputed that there had been a complete denial of visitation at the time the plaintiffs' petition for visitation was filed on November 3, 2016. Additionally, the trial court stated in its decision, which was issued on August 11, 2017, that the plaintiffs' visitation with B had been "terminated by the defendant father approximately a year ago ." From this we conclude that the correct date on which the defendant terminated the plaintiffs' contact with B was June 26, 2016, less than four months after Nicole's death. Riddell, also known as Regina Boisvert, is B's maternal aunt, i.e., Nicole's sister and the plaintiffs' daughter. The order provided: "The defendant is . ordered to provide visitation of the minor child with the plaintiff Diane Boisvert on Friday, August 31, 2018, at 5 p.m. until Sunday, September 2, at 5 p.m., and every other weekend thereafter, and provide visitation with the plaintiff Thomas Boisvert, on Wednesday, August 29, [2018] from the end of school, and each Wednesday, [from] noon if there is no school, until 8 p.m." The court further ordered the defendant to "pay the plaintiffs' attorney's fees in the amount of $1500 within thirty days of this order." After oral argument in these consolidated appeals, this court, sua sponte, invited the filing of amicus curiae briefs from the Family Law Section of the Connecticut Bar Association, the Children's Law Center of Connecticut, the Office of the Public Defender, the Center for Children's Advocacy, and the Child Protection Unit of the Office of the Attorney General. We asked the proposed amici curiae to address the following questions in their briefs: (1) "Once a trial judge has decided to issue an order granting third-party visitation under . § 46b-59, do the custodial parent's substantive due process rights require the judge to order the [third party] to abide by all of the custodial parent's specific directives regarding care of the minor child during the visitation?" (2) "More generally, what legal standard must the trial judge apply when crafting the terms and conditions of visitation relating to any specific aspect(s) of the environment or care provided by the [third party] as to which the custodial parent objects? (Is it the 'best interests of the child' standard under . § 46b-59 [e], or is a different legal standard constitutionally required?)" And (3) "Does a different legal standard and burden of proof apply when a party moves for modification of the terms and conditions of a third-party visitation order under . § 46b-59 ?" The Connecticut Bar Association, the Children's Law Center of Connecticut, the Department of Children and Families, and the Connecticut Chapter of the American Academy of Matrimonial Lawyers accepted our invitation and submitted amicus briefs. Troxel produced six different opinions. The plurality decision has been widely criticized for its failure to provide adequate direction to courts and legislatures attempting to abide by its holding. See, e.g., D. Lannetti, "A Nonparent's Ability To Infringe on the Fundamental Right of Parenting: Reconciling Virginia's Nonparental Child Custody and Visitation Standards," 30 Regent U. L. Rev. 203, 210 (2018) ("[t]he Troxel decision is known today more for what it failed to address than what it actually decided, and its six opinions-with the noticeable absence of a majority opinion-unsurprisingly caused confusion for both courts and practitioners as they attempted to discern the [c]ourt's guidance, or lack thereof"). In Troxel v. Granville , supra, 530 U.S. at 73, 120 S.Ct. 2054 (plurality opinion), the United States Supreme Court did not consider "whether the [d]ue [p]rocess [c]lause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation." " 'Real and significant harm' means that the minor child is neglected, as defined in section 46b-120, or uncared for, as defined in said section." General Statutes § 46b-59 (a) (2). The defendant also filed a motion to open and terminate visitation on the basis of his January 9, 2018 offer of visitation. The motion to open was denied by the trial court. Because the defendant did not appeal from the trial court's denial of this motion, we do not consider or decide the merits of that ruling. It should be recalled that a fit parent's decision-making authority also is protected at the threshold stage by § 46b-59 (c) (4), which directs the trial court to consider, in determining whether a parent-like relationship exists in the first instance, "[a]ny evidence that the person seeking visitation has unreasonably undermined the authority and discretion of the custodial parent ." This provision does not guarantee that visitation will be permitted only to a third party whose views on child rearing are entirely harmonious with the parent's views, but it does provide a strong incentive for the third party to make sure that his or her decisionmaking does not unreasonably undermine the parent's authority. The situation becomes still more challenging because (1) the third party, like the parent, may allow animosity toward the opposing party to influence his or her views about the child's best interest, and (2) neither party may be fully aware of their underlying motivations in this context. The difficult task of sorting out these dynamic uncertainties is left to the discretion of the trial court based on a careful consideration of all of the evidence. As we previously indicated, if the requesting party is a parent who claims that the proposed terms and conditions are necessary to protect his or her fundamental parental rights to make decisions regarding the child's education, health, religion, or association, then the parent's determination of his or her child's best interest should be accorded special weight. See Troxel v. Granville , supra, 530 U.S. at 69, 120 S.Ct. 2054 (plurality opinion). Nonetheless, an explanation is necessary in order for the trial court to ascertain whether the proposed terms and conditions actually implicate the parent's fundamental parental rights, reflect sincerely held parental beliefs, and involve disputed questions of fact necessitating an evidentiary hearing. The requesting party's explanation and the opposing party's responses not only will provide the trial court with the information necessary to address the parties' concerns and fashion appropriate relief, but also will provide an appellate court with an adequate record to review the trial court's order, if necessary. It appears from the record that the defendant was aware that Riddell was living in Diane Boisvert's home at the time of the evidentiary hearing, but did not raise the issue as a concern or request any particular terms and conditions limiting B's contact with Riddell prior to the issuance of the trial court's visitation order. Furthermore, although the defendant filed several postjudgment motions, he never filed a motion to modify the order of visitation to include a no contact order between B and Riddell. At the hearing on the plaintiffs' first motion for contempt, the defendant testified that he believed the order of visitation "was way too much because the only time that I have to spend with my son is a couple hours after work and every weekend." Additionally, as explained in parts I and III of this opinion, the defendant filed a postjudgment motion to open and terminate visitation and a postjudgment motion to dismiss for lack of subject matter jurisdiction on the basis of his January 9, 2018 offer of visitation, which would have provided substantially less visitation than the amount ordered by the trial court. At no point, however, did the defendant argue that the amount of visitation ordered by the court violated his fundamental parental rights under the United States constitution. The defendant's failure affirmatively to request and brief his entitlement to Golding review does not preclude our consideration of his constitutional claim. See State v. Elson , 311 Conn. 726, 730, 91 A.3d 862 (2014) (holding that there is no requirement "that a party must 'affirmatively request' Golding review in its main brief in order to receive appellate review of unpreserved constitutional claims"). Because the defendant has failed to establish the violation of his fundamental parental rights under the United States constitution, we need not reach the defendant's claim that the "magnitude as well as the duration of the constitutional deprivations" warrant vacatur of the order of visitation and dismissal of the plaintiffs' petition for third-party visitation.

12510875

STATE of Connecticut v. RAMON A. G.

State v. Ramon A. G.

2019-06-11

AC 39704

82

98

211 A.3d 82

211

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:58:01.966564+00:00

Fastcase

STATE of Connecticut v. RAMON A. G.

STATE of Connecticut v. RAMON A. G. AC 39704 Appellate Court of Connecticut. Argued January 10, 2019 Officially released June 11, 2019 Jennifer B. Smith, for the appellant (defendant). James M. Ralls, assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Elizabeth Moseley, senior assistant state's attorney, for the appellee (state). Keller, Elgo and Moll, Js. In accordance with our policy of protecting the privacy interest of the victim of a criminal violation of a protective order, we decline to identify the victim or others through whom the victim's identity may be ascertained.

8725

52733

ELGO, J. The defendant, Ramon A. G., appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61 and criminal violation of a protective order in violation of General Statutes § 53a-223 (a). On appeal, the defendant claims that (1) the trial court improperly declined to furnish a jury instruction on the defense of personal property with respect to the assault charge and (2) prosecutorial impropriety during closing argument deprived him of his due process right to a fair trial. We affirm the judgment of the trial court. On the basis of the evidence adduced at trial, the jury reasonably could have found the following facts. In August, 2012, the victim began what she described at trial as a "toxic relationship" with the defendant, which lasted seven months and concluded in March, 2013. On March 18, 2013, a protective order was issued that prohibited the defendant from having any contact with the victim. At approximately nine o'clock on the evening of March 22, 2013, the victim received a text message from the defendant indicating that he wanted to meet with her. Although initially hesitant, she ultimately agreed to do so and began walking toward the apartment where the defendant resided with his mother, who at that time was hospitalized. The defendant then picked the victim up in a motor vehicle and continued to the apartment, where they socialized with other individuals. When some attendees became rowdy, the victim decided to leave. As she exited the apartment, the victim took the keys to a vehicle belonging to the defendant's mother and began to walk home. Halfway to her home, the victim "felt like something bad was going to happen," so she tossed the keys into a bush alongside the road, which she described at trial as "[s]omewhere safe where I could go back for them later." At that time, she was wearing a backpack that contained, among other things, her cell phone, a money order, and cash. Soon thereafter, a vehicle driven by an unidentified person stopped in the middle of the street. The defendant exited the vehicle and started yelling "[w]here's the keys" in an angry manner. The defendant then grabbed the victim's backpack and swung her around. With her backpack still on, the victim fell to the ground, and the defendant began kicking her in the head, back, and stomach. After one particular blow to her temple area, the victim saw "stars" and let go of the backpack. The defendant rummaged through its contents, returned to the vehicle with the backpack in hand, and departed. Martin Martinez was inside his nearby residence at the time of the altercation. When he looked outside, he saw a man kicking a woman on the ground. As he testified: "I . remember seeing a male beating up a female . I saw some kicking. I saw her on the ground, and I saw someone-the male, you know, really giving it to her, stomping on her." Martinez immediately called 911 to report the incident. Officer Marcus Burrus of the New Britain Police Department arrived at the scene to find the victim crying, shaking, and hunched on the ground. The victim "was bleeding from areas of her face. She had blood on her ears, her face, [and] her hands." While awaiting medical assistance for the victim, Burrus answered an incoming call to her cell phone from a contact labeled "Maria." On the basis of prior experience and conversations with the defendant, Burrus recognized the caller as the defendant. During that conversation, Burrus testified that the defendant "told [him] that he came to the area [where the altercation transpired] and that he had confronted [the victim] because he believed that she was in possession of his mother's keys. And [the defendant] stated that he didn't touch her, but that he was there and that he just was going to find and borrow his mother's keys." The victim was transported by ambulance to a nearby hospital, where she received medical treatment. Photographs of injuries to her face, neck, hands, and back were taken while she was hospitalized and were admitted into evidence at trial. The victim was released from the hospital on the morning of March 23, 2013. Although a protective order remained in place, the victim received multiple text messages from the defendant later that morning. In those messages, the defendant indicated that he wanted to exchange the victim's backpack for the keys to his mother's vehicle. The victim, however, did not want to meet with the defendant. The defendant's cousin later returned the backpack to her with its contents secure. Burrus met with the victim at her home the following day. At that time, the victim informed him that she had received text messages from the defendant, which Burrus reviewed on her phone. At trial, Burrus testified that one such message contained "something along the lines of I ain't done with you yet." The defendant testified at trial on his own behalf and provided a different account of the altercation. In his testimony, the defendant admitted that he had confronted the victim on the sidewalk as she was walking home that night. He testified that he "said please give me my mother's keys" and that the victim then "began to swing at [him]." The defendant testified that, as he grabbed her hands and "told her, please, just give me the keys," he slipped and fell to the ground, which he attributed to wintry weather conditions. The defendant further testified that, as he attempted to "get up to leave," the victim "grabbed a hold of [his] foot," causing him to again fall to the ground. The defendant testified that "I just shook my foot loose and I crossed the street and I got in the car and we left." Following that altercation, the defendant was arrested and charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and criminal violation of a protective order in violation of § 53a-223 (a). Pursuant to General Statutes § 53a-40b, the state also charged, in a part B information, that the defendant committed those offenses while on release "pursuant to [General Statutes] § 54-63a to 54-63g and/or [General Statutes] § 54-64a to 54-64c ." A trial followed, at the conclusion of which the jury found the defendant not guilty of robbery in the first degree and assault in the second degree. The jury found the defendant guilty of criminal violation of a protective order and the lesser included offense of assault in the third degree. The defendant thereafter pleaded guilty to the charge set forth in the part B information. The court rendered judgment accordingly and sentenced the defendant to a total effective sentence of seven years incarceration, followed by three years of special parole. From that judgment, the defendant now appeals. I The defendant first claims that the court improperly declined to furnish a jury instruction on the defense of personal property with respect to the assault count. In response, the state submits that the defendant both failed to preserve and impliedly waived that claim at trial. We agree with the state. The following additional facts are relevant to the defendant's claim. On the first day of trial, the defendant filed a one page request to charge with the court. On the second day of trial, the court noted for the record that it had received the defendant's request to charge. The court then stated: "[W]hat I would like to do is try to have a discussion about this. I think it would be easiest to start it in chambers so that I can give you copies [of the court's draft charge], and then come out here and summarize on the record what we have done and what we discussed in chambers. Because if it gets to a point where we could do closing arguments tomorrow, I very much would like to do closing arguments tomorrow." The court indicated that it would "take about forty-five minutes to preliminarily discuss the jury charge with the attorneys" in chambers during an afternoon recess. When that recess concluded, the court explained to the jury: "[W]e've had the opportunity to have a preliminary discussion on the jury charge. And I have given to each attorney a very rough draft of what I call my overinclusive jury charge. I intend to take out the areas that do not apply in this case, and then to also work further on the charges with respect to the crimes that are alleged in this case. And I intend to send this out via e-mail tonight to the two attorneys so that you will have that for review tonight. I am going to grant the defendant's request to charge the jury on defense of personal property. I will put that in there . And [if the prosecutor has] any objections to it, you can do that formally tomorrow on the record." (Emphasis added.) The record before us contains a copy of the draft charge that the court provided to the parties later that night. That charge states in relevant part: "The evidence in this case raises the issue of the use of force against another to defend personal property. This defense applies to the charge of [r]obbery in the [f]irst [d]egree." The draft charge did not indicate that the defense applied to either the assault or the criminal violation of a protective order counts. The next day, the court held a charge conference with the parties following the close of evidence. At the outset, the court indicated that it had sent a copy of its revised draft charge to the parties the previous night and inquired whether they had reviewed it; defense counsel answered affirmatively. The court also noted that "the defense did ask yesterday in chambers . for a lesser included [offense] of assault in the third degree on the assault second, so I have included that. . And the defense also asked for the self-defense under the defense of [personal ] property, which is included as well ." (Emphasis added.) The court then asked if the parties had sufficient time to review the court's proposed charge to the jury and solicited feedback thereon, at which time defense counsel asked the court to change the word "statement" to "statements" in a section on impeachment evidence because the defendant was claiming that multiple inconsistent statements had been made. After agreeing to that change, the court asked: "Anything else?" Defense counsel replied, "No, Your Honor. . I'm all set, Your Honor. Thank you." The court then stated: "All right. And you both have had enough time with the charge that you feel comfortable with the court charging [the jury] today?" Both parties answered, "Yes, Your Honor." The court then adjourned the proceeding for a midday recess. When that recess concluded, the court stated for the record that it had "sent both parties a copy of the final jury instruction in electronic form." The court then permitted the parties to make closing arguments. In his closing argument, defense counsel stated in relevant part that the defense of personal property "is a complete defense to robbery in the first degree." Counsel did not reference that defense in his discussion of either the assault or the criminal violation of a protective order offenses. Following closing arguments, the court provided its charge to the jury. With respect to the defense of personal property, the court instructed the jury that this defense applied to the robbery charge. When it concluded, the court asked the parties if they had any objections. At that time, defense counsel stated, "No objections, Your Honor, at all." On appeal, the defendant claims that the court "improperly instructed the jury that the defense of [personal] property only applied to the robbery charge." He argues that, on the basis of his request to charge, the court should have instructed the jury that the defense applied to the robbery and assault charges set forth in counts one and two of the information, but not to the criminal violation of a protective order charge contained in count three. The court's failure to do so, he contends, violated his constitutional rights to due process and to present a defense. Before we can consider the merits of that claim, we must resolve two threshold issues. Specifically, we must determine whether the defendant properly preserved that claim with the trial court. If that claim was not properly preserved, we also must determine whether the doctrine of implied waiver precludes further review. A We begin by noting the fundamental precept, deeply ingrained in our decisional law and our rules of practice, that the appellate courts of this state "shall not be bound to consider a claim unless it was distinctly raised at the trial ." (Internal quotation marks omitted.) Ulbrich v. Groth , 310 Conn. 375, 427, 78 A.3d 76 (2013) ; see also Practice Book § 42-16 (party taking exception to court's instruction "shall state distinctly the matter objected to and the ground of exception"); Practice Book § 60-5 (party obligated to distinctly raise claim before trial court to be entitled to appellate review); State v. King , 289 Conn. 496, 505-506, 958 A.2d 731 (2008) (preservation requirement applies to challenges to jury instructions); Lee v. Stanziale , 161 Conn. App. 525, 538, 128 A.3d 579 (2015) (requirement that party distinctly raise claim of error before trial court "a prerequisite to appellate review"), cert. denied, 320 Conn. 915, 131 A.3d 750 (2016) ; State v. Nieves, 106 Conn. App. 40, 55, 941 A.2d 358 (requirement that party distinctly raise claim applies to jury instruction challenge), cert. denied, 286 Conn. 922, 949 A.2d 482 (2008). "The requirement that the claim be raised distinctly means that it must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked. . [It must] alert the trial court to the specific deficiency now claimed on appeal." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Carter , 198 Conn. 386, 396, 503 A.2d 576 (1986). Requiring a party to distinctly raise a claim of error before the trial court is no mere formality; rather, it ensures that the trial court is specifically apprised of the alleged error and, thus, has an opportunity to respond accordingly. "As [our Supreme Court] repeatedly has observed, the essence of the preservation requirement is that fair notice be given to the trial court of the party's view of the governing law . A secondary purpose of the preservation requirement is to prevent the possibility that an appellee would be lured into a course of conduct at the trial which it might have altered if it had any inkling that the [appellant] would . claim that such a course of conduct involved rulings which were erroneous and prejudicial to him. . Assigning error to a court's . rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush." (Citations omitted; internal quotation marks omitted.) State v. Benedict , 313 Conn. 494, 505-506, 98 A.3d 42 (2014) ; accord State v. Jorge P. , 308 Conn. 740, 753, 66 A.3d 869 (2013) ("the sina qua non of preservation is fair notice to the trial court"). Through that lens must an appellate body view claims of error on the part of the trial court. In the context of jury instructions, a party "may preserve for appeal a claim that an instruction . was . defective either by: (1) submitting a written request to charge covering the matter; or (2) taking an exception to the charge as given." (Internal quotation marks omitted.) State v. King , supra, 289 Conn. at 505, 958 A.2d 731 ; see also Practice Book § 42-16. The defendant in the present case filed a written request to charge. See footnote 5 of this opinion. The question, then, is whether that request sufficiently covered the matter so as to preserve the issue for appellate review. Put differently, the relevant inquiry is whether the defendant's request to charge alerted the trial court to the specific deficiency now claimed on appeal. See State v. Carter , supra, 198 Conn. at 396, 503 A.2d 576. We conclude that it did not. The distinct claim presented on appeal concerns the failure of the trial court to provide a defense of personal property instruction to the jury with respect to two of the three counts alleged in the operative information-namely, the robbery and assault counts, but not the criminal violation of a protective order count. On its face, the defendant's written request to charge is patently deficient in this regard, as it does not alert the trial court to such a request. The substance of that one page request merely communicated (1) the defendant's desire to have the court provide a defense of personal property instruction to the jury and (2) the defendant's belief that "[t]he evidence supports this request." As a result, the defendant's request is inherently ambiguous, in that it is unclear whether the defendant sought such an instruction as to only one of the charged offenses, all of the charged offenses, or some combination thereof. As our Supreme Court has explained, "the submission of a request to charge covering the matter at issue preserves a claim that the trial court improperly failed to give an instruction on that matter. . In [such] instances, the trial court has been put on notice and afforded a timely opportunity to remedy the error. . It does not follow, however, that a request to charge addressed to the subject matter generally, but which omits an instruction on a specific component, preserves a claim that the trial court's instruction regarding that component was defective." (Citations omitted; emphasis in original.) State v. Ramos , 261 Conn. 156, 170-71, 801 A.2d 788 (2002), overruled in part on other grounds by State v. Elson , 311 Conn. 726, 754-55, 91 A.3d 862 (2014). A defendant's failure to distinctly raise an instructional claim in its written request to charge or to otherwise take an exception to the court's instruction renders that particular claim unpreserved for appellate review. See id., at 171, 801 A.2d 788 ; see also State v. Tozier , 136 Conn. App. 731, 743, 46 A.3d 960 ("[t]he defendant did not preserve this claim for appellate review as he did not . distinctly raise these arguments [regarding instructional error] before the trial court"), cert. denied, 307 Conn. 925, 55 A.3d 567 (2012) ; State v. Joseph , 110 Conn. App. 454, 459-60, 955 A.2d 124 (because defendant's written request to charge contained general credibility instruction but did not distinctly raise issue of accomplice credibility, trial court "was not put on notice" of that issue, rendering it unpreserved), cert. denied, 289 Conn. 945, 959 A.2d 1010 (2008) ; Abdelsayed v. Narumanchi , 39 Conn. App. 778, 785, 668 A.2d 378 (1995) ("[W]hile the defendant did prepare a written request to charge, that proposed charge did not distinctly address the issue the defendant now raises. We, therefore, do not address his claim on appeal. [Footnote omitted.]"), cert. denied, 237 Conn. 915, 676 A.2d 397, cert. denied, 519 U.S. 868, 117 S. Ct. 180, 136 L. Ed. 2d 120 (1996) ; id., at 785 n.1, 668 A.2d 378 (concluding that "these words [contained in the defendant's request to charge] did not sufficiently afford notice to the trial court as to the claimed error the defendant now raises"); contra Benanti v. Delaware Ins. Co., 86 Conn. 15, 21, 84 A. 109 (1912) ("[t]he issue of misrepresentation of title . was distinctly presented in the defendant's requests to charge"); cf. State v. Jones , 289 Conn. 742, 760, 961 A.2d 322 (2008) ("when the trial court failed to instruct the jury as the defendant had requested, defense counsel objected two different times, thus effectively preserving the issue for appellate review even if his written request to charge was ambiguous"). The defendant claims that State v. Ramos, 271 Conn. 785, 860 A.2d 249 (2004), is "controlling" on the question of preservation. We do not agree. In that case, only two counts remained following the close of evidence: assault in the second degree in violation of § 53a-60 (a) (2) and carrying a weapon in a motor vehicle in violation of General Statutes (Rev. to 1997) § 29-38. Id., at 790, 860 A.2d 249. At trial, the defendant "requested that the trial court instruct the jury on the affirmative defense of self-defense but did not specify the count or counts of the information to which the defense applied. The trial court gave a self-defense instruction with respect to the assault charge, but . instructed the jury that self-defense was not a defense to the charge under § 29-38." Id., at 800, 860 A.2d 249. On appeal, the defendant claimed that "the trial court improperly instructed the jury that the defense of self-defense did not apply to a charge under § 29-38." Id., at 799, 860 A.2d 249. Our Supreme Court concluded that the defendant's claim was preserved for appellate review, stating: "Although we agree with the state that the record leaves some doubt as to whether the defendant's general request to charge was adequate to place the trial court on notice that he believed that the claim of self-defense applied to both charges, we read the failure to specify as an indication that it applied to both charges and that the claim was, therefore, preserved for review." Id., at 801, 860 A.2d 249. For two reasons, Ramos is readily distinguishable from the present case. First, as a factual matter, the defendant here is not arguing that his general request to charge on the defense of personal property should have been applied to all pending counts, as was the case in Ramos . Rather, the defendant maintains that the court should have provided that instruction with respect to two of the three counts levied against him by the state and improperly furnished such an instruction as to only one of those counts. Second, as a procedural matter, the defendant overlooks the critical fact that, in Ramos , the state had filed "a supplemental request to charge" in response to the defendant's request to charge, in which the state maintained that "self-defense was not a defense to the charge under § 29-38." Id., at 800, 860 A.2d 249. By so doing, the state alerted the court to the distinct issue of whether that defense so applied, rendering that issue properly preserved for appellate review. It nonetheless remains that the state in the present case neither filed a request to charge regarding the applicability of the defense of personal property to an assault charge nor otherwise raised that issue in any manner before the trial court. Ramos , therefore, is both factually and procedurally inapposite to the present case. Similarly misplaced is the defendant's reliance on State v. Paige , 304 Conn. 426, 40 A.3d 279 (2012). In Paige , both the defendant and the state submitted requests to charge on the disputed instruction. Id., at 439, 40 A.3d 279. Moreover, the trial court held a charging conference, at which it heard argument from the parties on that instructional issue. Id. With "the specific circumstances of the present case in mind," our Supreme Court ultimately concluded that the issue was preserved for appellate review, noting that "[w]e never have required . a defendant who has submitted a request to charge also to take an exception to a contrary charge ." (Emphasis added.) Id., at 442-43, 40 A.3d 279. Significantly, the state, in both Paige and Ramos , requested an alternative instruction that was contrary to the one requested by the defendant. As a result, the trial court in those cases plainly was apprised of the distinct instructional issue, obviating the need for the defendant to further memorialize his objection to the court's charge. No such contrary request was made by the state in the present case. The defendant's reliance on State v. Johnson , 316 Conn. 45, 111 A.3d 436 (2015), also is unavailing. In that case, the defendant filed a written request to charge that proposed specific language on the issues of constructive and nonexclusive possession. Id., at 52, 111 A.3d 436. In both its draft charge and the final charge that it provided to the jury, the trial court declined to include all of the language requested by the defendant; instead, the court "selectively omitted certain paragraphs [specifically requested by the defendant] altogether." Id., at 55-56, 111 A.3d 436. Furthermore, "[t]here was never any discussion relating to this charge or this element of the offenses." Id., at 56, 111 A.3d 436. In such circumstances, our Supreme Court held that the defendant was not obligated to raise a further objection to the court's charge to preserve the issue for appeal because "[t]he defendant reasonably could have interpreted the trial court's selective adoption of parts of her possession instruction as a purposeful rejection of the omitted language. . [T]he defendant was not required to object to the truncated instruction to preserve her request for the more comprehensive instruction." Id. As in Paige and Ramos , the trial court in Johnson was specifically alerted to the distinct instructional deficiency later pursued on appeal. The facts of the present case are markedly different. Neither the defendant's written request to charge nor anything else in the record before us indicates that the defendant ever alerted the court to the distinct instructional deficiency he now alleges on appeal. At no time did the defendant apprise the court of his desire to have the court furnish a defense of personal property instruction with respect to counts one and two, but not count three, of the information. Rather, the record before us indicates that (1) the defendant generally requested a defense of personal property instruction without specifying its alleged applicability to any particular counts; (2) the court discussed that request with both parties during an in-chambers conference on May 17, 2016, and then agreed on the record to provide a defense of personal property instruction to the jury; (3) at that time, the court stated that it would entertain any objections to that instruction at the charge conference the next day; (4) the court then included an instruction on the defense of personal property with respect to the robbery count in the draft charge that it provided to the parties; and (5) the court also included that instruction in both the revised charge that it "sent [to the] parties . in electronic form" and the final charge that it ultimately delivered to the jury. At no time did the defendant notify the court of any issue or disagreement with the court's instruction despite several opportunities to do so. Rather, defense counsel affirmatively indicated that he was "all set." Accordingly, we cannot conclude on the particular facts of this case that the instruction provided by the court was "contrary" to that submitted by the defendant in his written request to charge. See State v. Paige , supra, 304 Conn. at 443, 40 A.3d 279 (defendant who has submitted request to charge not required "to take an exception to a contrary charge"). The record indicates that the defendant asked for an instruction on the defense of personal property and that the court, after discussing the matter with the parties, granted the defendant's request and provided such an instruction. At the same time, the record does not reflect that the trial court ever was "on notice of the purported defect" that the defendant now advances on appeal. State v. Thomas W. , 301 Conn. 724, 736, 22 A.3d 1242 (2011). Our law requires a party pursuing a claim of instructional error "to bring to the attention of the [trial] court the precise matter on which its decision is being asked" so as to "alert the trial court to the specific deficiency now claimed on appeal." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Carter , supra, 198 Conn. at 396, 503 A.2d 576. The defendant failed to do so in his written request to charge. Furthermore, despite ample opportunity, the defendant raised no such objection to the court's instruction at any time. Accordingly, we conclude that his claim of instructional error was not properly preserved for appellate review. B Having determined that the defendant failed to alert the trial court to the distinct claim of instructional error presented in this appeal, we next consider whether the doctrine of implied waiver precludes substantive review. Whether a defendant has waived the right to challenge the court's jury instructions involves a question of law, over which our review is plenary. State v. Davis , 311 Conn. 468, 477, 88 A.3d 445 (2014). Our analysis begins with the seminal decision of State v. Kitchens , 299 Conn. 447, 10 A.3d 942 (2011), in which our Supreme Court "established a framework under which we review claims of waiver of instructional error ." State v. McClain , 324 Conn. 802, 810, 155 A.3d 209 (2017). In Kitchens , the court emphasized that waiver involves the idea of assent; State v. Kitchens , supra, at 469, 10 A.3d 942 ; and explained that implied waiver occurs when a defendant "had sufficient notice of, and accepted, the instruction" proposed or given by the trial court. (Emphasis in original.) Id., at 487 n.25, 10 A.3d 942. More specifically, the court held that "when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal." Id., at 482-83, 10 A.3d 942. The court further explained that "[s]uch a determination by the reviewing court must be based on a close examination of the record and the particular facts and circumstances of each case." Id., at 483, 10 A.3d 942 ; see also State v. Bellamy , 323 Conn. 400, 426, 147 A.3d 655 (2016) ("reviewing courts are required to determine whether the unique facts and circumstances in any given case support a finding of waiver"). In the present case, the trial court conducted a preliminary charge conference with the parties in chambers following the filing of the defendant's request to charge. When that conference concluded, the court indicated that it had provided the parties with "a very rough draft" of its jury charge, which it further refined later that day. The court also stated that it was "going to grant the defendant's request to charge the jury on defense of personal property. I will put that in there." The court then sent the parties a revised version of its draft charge that night, which included an instruction that the defense of personal property was a defense to the charge of robbery in the first degree. The next day, the court held another charge conference, at which defense counsel confirmed that he had received the court's revised draft charge. The court at that time solicited comments from the parties regarding changes or modifications, and defense counsel asked the court to make a linguistic change to a section of the charge regarding impeachment evidence, which the court agreed to do. The court then asked: "Anything else?" Defense counsel replied, "No, Your Honor. . I'm all set, Your Honor. Thank you." The court then stated: "All right. And you both have had enough time with the charge that you feel comfortable with the court charging [the jury] today?" Defense counsel answered, "Yes, Your Honor." Later that day, the court noted for the record that it had "sent both parties a copy of the final jury instruction in electronic form." The court then permitted the parties to make closing arguments. In his closing argument, defense counsel stated in relevant part that defense of personal property "is a complete defense to robbery in the first degree." Counsel did not reference that defense in his discussion of either the assault or the criminal violation of a protective order offenses. Furthermore, in its subsequent charge, the court instructed the jury that the defense of personal property applied to the robbery charge. When it concluded, the court asked the parties if they had any objections; defense counsel responded, "No objections, Your Honor, at all." The facts and circumstances of this case largely resemble those chronicled in State v. Thomas W. , supra, 301 Conn. at 724, 22 A.3d 1242. As our Supreme Court stated: "[T]he following undisputed facts . establish an implied waiver under the Kitchens standard. The trial court conducted a charging conference, provided copies of the proposed charge to the defendant and elicited input from him. The defendant asked for an addition to the charge, and the court complied with that request. . [T]he defendant . conceded . that he had been given sufficient time to review [the court's draft charge]. . The defendant twice expressed satisfaction with the charge when asked by the court-before and after the charge was given." (Citations omitted.) Id., at 734-35, 22 A.3d 1242. Here, a close examination of record reveals that the defendant was provided with a meaningful opportunity to review the court's initial draft charge that the court provided during the in-chambers conference, the revised draft charge that the court sent to the parties later that night, and the final draft charge that the court provided prior to closing arguments. The court solicited and received comments from the parties over the course of multiple charge conferences. The defendant thereafter expressed satisfaction with both the draft charge that the court provided to the parties and the ultimate charge that the court delivered to the jury. Moreover, at no time at trial did the defendant voice any objection regarding the instructional deficiency he now alleges on appeal. In light of those undisputed facts, we conclude that the doctrine of implied waiver precludes substantive consideration of the defendant's claim of instructional impropriety. See State v. Kitchens , supra, 299 Conn. at 482-83, 10 A.3d 942. II The defendant also claims that prosecutorial impropriety during closing argument deprived him of a fair trial. We disagree. The following facts are relevant to this claim. At trial, the victim testified that the defendant placed phone calls and sent her text messages from a phone belonging to his mother. See footnote 1 of this opinion. In his testimony, Burrus stated that he had reviewed certain text messages sent to the victim from that phone. On cross-examination, defense counsel asked Burrus if he would "agree that if we had the cell phone records here, or the text phone messages here, that would be a much more reliable source of information"; Burris answered affirmatively. When the defendant testified the next day, the prosecutor asked him whether he spoke with Burrus on the night of the altercation, to which the defendant replied: "I never spoke with him. You should have got the phone records. I was asking for them. I never spoke with him." Prior to closing arguments, the court advised the jury that the arguments of counsel "are not evidence" but, rather, were an "opportunity to go over the evidence that's been presented [to] you ." The prosecutor then began her initial closing argument by urging the jurors as follows: "[I]f there's anything that I say during my oral argument to you and your recollection of the testimony or the evidence differs from my recollection, you follow your recollection, not mine, okay? So, I just want to make that very clear right from the get go." The prosecutor then discussed various aspects of the evidence presented at trial. In his closing argument, defense counsel repeatedly reminded the jurors that the state had not presented evidence of the cell phone records. With respect to certain discrepancies between the respective testimony of the victim and the defendant, counsel stated: "This issue could have been simply solved by giving you the cell phone records, subpoena the Verizon records or whoever the carrier is, bring those in, show you guys those, show them to me, show them to the judge, those are indisputable. Remember that it is always the state's burden of proof." Defense counsel later remarked: "As I've said over and over again, I said this several times during the course of the case, there's no info from that cell phone. It could have been downloaded and presented to you on a big screen, shown to me and shown to you. That would be solid evidence. We don't have it. I don't have it. You don't have it." After acknowledging that the victim sustained physical injuries on the night in question, defense counsel again noted the lack of evidence presented by the state, arguing: "I'm going to say it again, no cell phone records, there's no text messages to show you, there's no forensic evidence in this case ." During her rebuttal argument, the prosecutor responded to that line of argument by defense counsel, stating in relevant part: "Counsel also stated the fact that there were no cell phone records. Well, cell phone records, is he referring to the cell phone records of [the defendant's mother] or [the victim's] cell phone records? What would those records have said, had told us? I submit those records probably would have helped me. Counsel points that out to you about the cell phone records." Defense counsel did not object at the time that the prosecutor made that statement. The next morning, defense counsel alerted the court to a concern about the prosecutor's statement, and the following colloquy ensued: "[Defense Counsel]: I'm thinking more about the closing that the [prosecutor] did. She made a comment which was, I submit that the cell phone records would have . probably helped her. I don't think that that's a proper statement. . So, I would ask that the jury be instructed that the comment was not a proper one. "The Court: All right. Any objection to that? "[The Prosecutor]: Judge, it was inadvertent. "The Court: Okay. . "[The Prosecutor]: -and if the court feels at all that it was improper, I have no objection to any curative instruction the court wishes to give. "The Court: All right. I mean, inadvertence happens, but I think it is important to reiterate to the jury that evidence is only what was before them, and I will specifically address this. Now- "[Defense Counsel]: Thank you, and I agree with the state, it was completely an inadvertent thing. "The Court: Okay. That's fine. "[The Prosecutor]: Thank you, counsel." The jury then reentered the courtroom, at which time the court provided a curative instruction advising it to disregard the prosecutor's statement from the previous day. On appeal, the defendant maintains that the prosecutor's statement that "those [cell phone] records probably would have helped me" was improper commentary on facts not in evidence, which deprived him of a fair trial. The state concedes, and we agree, that the prosecutor's statement was improper. The state nonetheless contends that it did not amount to a denial of the defendant's right to a fair trial. "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. Whether that impropriety was harmful and thus caused or contributed to a due process violation involves a separate and distinct inquiry." (Internal quotation marks omitted.) State v. Campbell , 328 Conn. 444, 541-42, 180 A.3d 882 (2018). Only the second step of that analysis is at issue in the present case. To determine whether the prosecutor's improper argument deprived the defendant of his due process right to a fair trial, "we are guided by the factors enumerated . in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). 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." (Internal quotation marks omitted.) State v. Martinez , 319 Conn. 712, 736, 127 A.3d 164 (2015). We first consider the frequency and the severity of the challenged remarks. As defense counsel conceded at trial, the prosecutorial impropriety at issue consisted of a single, inadvertent statement. The prosecutor made no mention of cell phone records in her initial closing argument and made only one isolated reference in her rebuttal argument. The comment also was not particularly severe, as it consisted of a brief suggestion that any cell phone records "probably would have helped" the state's case. In this regard, we note that defense counsel did not object to the prosecutor's statement at the time that it was made. See State v. Grant , 154 Conn. App. 293, 328, 112 A.3d 175 (2014) ("defense counsel's failure to make a contemporaneous objection . permits an inference that counsel did not think the impropriety was severe"), cert. denied, 315 Conn. 928, 109 A.3d 923 (2015). Furthermore, "the severity of the impropriety is often counterbalanced in part" by the infrequency of the impropriety. (Internal quotation marks omitted.) State v. Daniel W. , 180 Conn. App. 76, 113, 182 A.3d 665, cert. denied, 328 Conn. 929, 182 A.3d 638 (2018). The infrequency of the prosecutorial impropriety in the present case is undisputed. In addition, the prosecutor's improper comment was not central to the critical issues in the case, as the existence of cell phone records had little bearing on the question of whether the defendant perpetrated the charged offenses. Although the defendant argues in his reply brief that "[t]he impropriety went directly to" his conviction for violating a protective order, the basis of that charge stemmed not from the defendant's phone calls or text messages to the victim but, rather, his confrontation with her as she walked home. In the long form information, the state specifically alleged that "on or about March 23, 2013, at approximately 2:45 [a.m.] in the area of 50 Kensington Avenue . [the defendant] violated a protective order when he made contact with [the victim] and assaulted her by repeatedly kicking her ." At trial, the defendant admitted in his testimony that he confronted the victim as she was walking home. Moreover, Burrus testified that he spoke with the defendant soon after the altercation transpired, at which time the defendant acknowledged that "he came to the area [of the altercation] and that he had confronted" the victim. On the basis of that testimony, the jury reasonably could have concluded that the defendant violated the terms of the protective order. We therefore disagree with the defendant that the prosecutor's improper comment about cell phone records was central to the critical issues in the case. The prosecutor's improper comment also appears to have been invited by the defendant's testimony at trial. On cross-examination, the defendant denied speaking with Burrus shortly after the altercation, stating: "I never spoke with him. You should have got the phone records. I was asking for them. I never spoke with him." To the extent that the defendant in his testimony suggested that the cell phone records would have corroborated his trial testimony, he invited the prosecutor's improper comment to the contrary. With respect to his conviction of criminal violation of a protective order and assault in the third degree, the state's case was strong. In his testimony, the defendant admitted that he made contact with the victim as she walked home on the night in question. Although the victim and the defendant provided differing accounts of the altercation, the jury also heard testimony from Martinez, who witnessed the incident and corroborated the victim's account. Contrary to the defendant's testimony at trial that he "didn't touch her," Martinez told the jury that he saw "a male beating up a female . I saw some kicking. I saw her on the ground, and I saw someone-the male, you know, really giving it to her, stomping on her." The state's case also included testimony from Burrus, who responded to the scene and observed the victim's physical and emotional state, as well as photographs later taken at the hospital, which depict in graphic fashion the injuries to the victim's face, neck, hands, and back. Lastly, the trial court provided a curative instruction in response to a concern raised by defense counsel the day after closing arguments concluded. In that directive, the court instructed jurors that "you should not consider" the prosecutor's improper statement, as it was not supported by evidence in the record. See footnote 14 of this opinion. In the absence of an indication to the contrary, we presume that the jury followed that curative instruction. See State v. Camacho , 282 Conn. 328, 385, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007). Having considered the foregoing factors in light of the record before us, we conclude that the prosecutor's improper comment did not so infect "the trial with unfairness as to make the resulting conviction a denial of due process." (Internal quotation marks omitted.) State v. Williams , supra, 204 Conn. at 539, 529 A.2d 653. The defendant's prosecutorial impropriety claim, therefore, fails. The judgment is affirmed. In this opinion the other judges concurred. At trial, the victim testified that because the defendant's cell phone was broken, he often called or texted her from a phone belonging to his mother, Maria. For that reason, she would receive incoming calls or text messages from him under a contact labeled "Maria." In her testimony, the victim indicated that all relevant phone calls or text messages received from the defendant were from that contact. An audio recording of that 911 call was admitted into evidence. At trial, Burrus confirmed that he knew the defendant and had spoken with him prior to the night in question. Burrus testified that he knew the defendant by the nickname "Cito" and also knew the defendant's mother and brother. Burrus explained that he had "dealt with [the defendant] on other calls [in the course of his] duties as a police officer, and prior to that [knew him] as a teenager," as the defendant was a friend of Burrus' brother-in-law. Burrus testified that the text messages were from a contact labeled "Maria." See footnote 1 of this opinion. The defendant's written request to charge states in full: "Defendant moves this court, pursuant to [Practice Book] § 42-16 et seq. and the [s]ixth and [f]ourteenth [a]mendments to the United States [c]onstitution, to give Jury Instruction 2.8-5, Defense of Personal Property ([General Statutes] § 53a-21 ). The evidence supports this request. Wherefore, for the reasons set forth above, together with such other reasons as may be advanced in any memorandum of law submitted and/or hearing conducted in connection herewith, [the defendant] respectfully prays that the [c]ourt adopt this proposed instruction." The defendant did not submit a memorandum of law on that request. Following the commencement of this appeal, the state filed a motion for rectification, in which it asked the trial court to supplement the record with a copy of the draft charge. The court granted that request on January 29, 2018. The court instructed the jury in relevant part: "The evidence in this case raises the issue of the use of force against another to defend personal property. This defense applies to the charge of robbery in the first degree. After you have considered all the evidence in this case on the charge of robbery in the first degree, if you find that the state has proved each element beyond a reasonable doubt, then you must go on to consider whether or not the defendant acted justifiably in the defense of personal property. In this case you must consider this defense in connection with count one of the information." As our Supreme Court explained nearly two centuries ago: "It has been repeatedly decided, by us, that . we will not allow points of law to be discussed, which were not made, or which were waived, in the court below. We adhere to these decisions. The rule which they establish, is a salutary one, essential to the preservation of the rights of parties, and to the due administration of justice." Torry v. Holmes , 10 Conn. 499, 507 (1835). As the defendant acknowledges in his reply brief, his "trial counsel's theory of defense of property did not pertain to the protective order charge." Following the in-chambers conference with the parties, the court stated: "I am going to grant the defendant's request to charge the jury on defense of personal property. I will put that in there." Our Supreme Court has since reaffirmed the vitality of the waiver rule enunciated in Kitchens and expressly rejected the claim that it "should be overturned because it is confusing, unworkable, interferes with an appellate court's discretion to review unpreserved claims and does not serve the interests of justice." State v. Bellamy , 323 Conn. 400, 403, 147 A.3d 655 (2016). In his principal appellate brief, the defendant also suggests that he preserved his objection by moving for a judgment of acquittal at his sentencing hearing months after his trial concluded. He has provided no legal authority in support of that contention. To the contrary, our Supreme Court has held that posttrial motions do not properly preserve a claim that the court's charge to the jury improperly omitted an appropriate instruction. See Oakes v. New England Dairies, Inc. , 219 Conn. 1, 8, 591 A.2d 1261 (1991) ; see also State v. Santiago , 142 Conn. App. 582, 602 n.17, 64 A.3d 832 (declining to address claim raised "for the first time at [the defendant's] posttrial sentencing hearing"), cert. denied, 309 Conn. 911, 69 A.3d 307 (2013). In his reply brief, the defendant also requests review pursuant to State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In Kitchens , our Supreme Court explained that the doctrine of implied waiver, when applicable, bars recourse under Golding , as "[a] constitutional claim that has been waived does not satisfy [its] third prong . because, in such circumstances, we simply cannot conclude that injustice [has been] done to either party . or that the alleged constitutional violation . exists and . deprived the defendant of a fair trial ." (Internal quotation marks omitted.) State v. Kitchens , supra, 299 Conn. at 467, 10 A.3d 942 ; see also State v. McClain , supra, 324 Conn. at 808-809, 155 A.3d 209. Our determination that the defendant impliedly waived his instructional claim thus forecloses relief under Golding . The court instructed the jury as follows: "[Y]esterday during closing argument, [the prosecutor], in addressing the cell phone records, made a comment where she said, I submit to you that if the cell phone records had been here they would have been favorable to the state. Now remember that I told you that the only evidence that you can decide the case upon is evidence that has been presented to you in court and there was no evidence presented to that so that was an argument of counsel that there is no evidence to support that so you should not consider that statement. During the course of argument, people make inadvertent statements, and so I bring it to your attention just to let you know you did not receive evidence on that so I just want to tell you that." The defendant thereafter did not object to the curative instruction provided by the court.

12511352

STATE of Connecticut v. Ernest FRANCIS

State v. Francis

2019-07-02

AC 41183

536

542

213 A.3d 536

213

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:58:09.224733+00:00

Fastcase

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

STATE of Connecticut v. Ernest FRANCIS

STATE of Connecticut v. Ernest FRANCIS AC 41183 Appellate Court of Connecticut. Argued March 13, 2019 Officially released July 2, 2019 Robert L. O'Brien, Douglasville, assigned counsel, with whom, on the brief, was Christopher Y. Duby, North Haven, assigned counsel, for the appellant (defendant). Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Rita M. Shair, senior assistant state's attorney, and Elizabeth S. Tanaka, former assistant state's attorney, for the appellee (state). DiPentima, C.J., and Alvord and Conway, Js.

2599

16347

DiPENTIMA, C.J. The defendant, Ernest Francis, appeals from the judgment of the trial court denying his motion to correct an illegal sentence filed pursuant to Practice Book § 43-22. On appeal, the defendant claims that his sentence was imposed in an illegal manner because the court substantially relied on materially inaccurate information concerning his prior criminal history and the manner in which he had committed the underlying crime. We disagree and, thus, affirm the judgment of the trial court. The following facts and procedural history are relevant to this appeal. The defendant was convicted of murder in violation of General Statutes § 53a-54a(a), and, on April 15, 1992, was sentenced to fifty years of incarceration. See State v. Francis , 228 Conn. 118, 635 A.2d 762 (1993). Prior to sentencing, the court, Miano , J. , was provided with a presentence investigation report (presentence report) detailing the defendant's prior criminal history. The presentence report indicated that the defendant had been convicted previously of conspiracy to sell cocaine and assault in the second degree. During sentencing, the prosecutor informed the court of the details surrounding the apparent conviction of conspiracy to sell cocaine and noted that there seemed to be a discrepancy between the offense of which he was charged initially, conspiracy to sell cocaine, and the offense of which he was convicted, conspiracy to possess cocaine. The prosecutor also advised the court that the defendant had not been convicted of assault in the second degree, as indicated in the report, but, rather, assault in the third degree. In discussing the reasons for its sentence, the court, Miano , J. , reviewed the events that transpired on the day the defendant murdered the victim. In so doing, the court indicated that the defendant had stabbed the victim more than once during the underlying altercation. After recounting the relevant facts based on the evidence at trial, the court noted that the defendant, at the age of nineteen, had three felony convictions. After noting that one of "[t]he purposes of sentencing" is deterrence, the court sought to send a message to "the young men like the defendant that appear macho, that are involved in drugs, that have cars, attractive new cars, that have jewelry, that have money, [and] that have attractive ladies," that "[they] have to think before they commit such an act like this." Thereafter, the court sentenced the defendant to fifty years of incarceration. On December 30, 2016, the defendant filed the motion to correct an illegal sentence that is the subject of the present appeal. In the memorandum of law accompanying his motion, the defendant alleged that his sentence was illegal because the trial court substantially relied on materially false information regarding his prior criminal history and misconstrued the evidence at trial surrounding the underlying crime. On August 10, 2017, the court, Dewey , J. , denied the defendant's motion, concluding, inter alia, that there was no indication that the sentencing court substantially relied on materially inaccurate information. This appeal followed. Additional facts will be set forth as needed. The defendant claims that the trial court improperly concluded that the sentencing court did not substantially rely on materially inaccurate information regarding his prior criminal history and the manner in which the underlying offense was committed. We do not agree and, therefore, affirm the judgment of the trial court. We begin our analysis of the defendant's claim by setting forth our standard of review and applicable legal principles. Practice Book § 43-22 provides that "[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner." "[A] claim that the trial court improperly denied a defendant's motion to correct an illegal sentence is reviewed pursuant to the abuse of discretion standard.... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court's decision and every reasonable presumption is given in favor of its correctness.... We will reverse the trial court's ruling only if it could not reasonably conclude as it did." (Internal quotation marks omitted.) State v. Bozelko , 175 Conn. App. 599, 609, 167 A.3d 1128, cert. denied, 327 Conn. 973, 174 A.3d 194 (2017). "[A]n illegal sentence is essentially one [that] either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory. By contrast . [s]entences imposed in an illegal manner have been defined as being within the relevant statutory limits but . imposed in a way [that] violates [a] defendant's right . to be addressed personally at sentencing and to speak in mitigation of punishment . or his right to be sentenced by a judge relying on accurate information or considerations solely in the record , or his right that the government keep its plea agreement promises . These definitions are not exhaustive, however, and the parameters of an invalid sentence will evolve . as additional rights and procedures affecting sentencing are subsequently recognized under state and federal law." (Emphasis added; internal quotation marks omitted.) State v. Jason B. , 176 Conn. App. 236, 243-44, 170 A.3d 139 (2017). "[D]ue process precludes a sentencing court from relying on materially untrue or unreliable information in imposing a sentence.... To prevail on such a claim as it relates to a [presentence report], [a] defendant [cannot] . merely alleg[e] that [his presentence report] contained factual inaccuracies or inappropriate information.... [He] must show that the information was materially inaccurate and that the [sentencing] judge relied on that information.... A sentencing court demonstrates actual reliance on misinformation when the court gives explicit attention to it, [bases] its sentence at least in part on it, or gives specific consideration to the information before imposing sentence." (Emphasis omitted; footnote omitted; internal quotation marks omitted.) State v. Petitpas , 183 Conn. App. 442, 449-50, 193 A.3d 104, cert. denied, 330 Conn. 929, 194 A. 3d 778 (2018). In claiming that his sentence was imposed in an illegal manner, the defendant points to several purported inaccuracies in the presentence report. Specifically, he asserts that the report incorrectly indicated that he had been convicted of conspiracy to sell cocaine, when in fact he was convicted of conspiracy to possess cocaine. The defendant argues that the record demonstrates substantial reliance on this inaccuracy in light of the sentencing court's description of him as a drug dealer who had "new cars," "jewelry," "money" and "attractive ladies," despite the fact that he never had been convicted of selling drugs. Further, the defendant submits that, although the prosecutor informed the court of the inaccuracy in the presentence report concerning his assault conviction, the state failed to correct the portion of the report that erroneously indicated that the victim of that assault was an elderly person and that the defendant's sentence for this conviction had been illegal. The defendant contends that the court substantially relied on these errors when it intimated that the defendant was a "violent predator attacking the weak and infirm," rather than just a child caught up in "a senseless and tragic neighborhood fight." Additionally, the defendant claims that the court substantially relied on an inaccurate account of the manner in which the underlying murder offense occurred. In particular, the defendant argues that the evidence at trial indicated that the victim had sustained only a single stab wound during the altercation that resulted in his death. During its recitation of the evidence, however, the sentencing court stated that the victim had suffered a "graze" wound prior to being fatally stabbed in the chest. The defendant contends that this material inaccuracy was substantially relied on by the court and served to portray the defendant as a "more determined and violent individual than the evidence actually showed." With respect to the presentence report, we conclude that the trial court did not abuse its discretion in concluding that the sentencing court did not substantially rely on the inaccuracies concerning the defendant's prior criminal history. Although the sentencing court incorrectly noted that the defendant had been convicted of conspiracy to sell cocaine, this error was not a substantial factor in the court's determination of the defendant's appropriate sentence. Rather, as it relates to the defendant's prior criminal history, the court expressly considered the fact that the defendant had incurred three separate felony convictions by the age of nineteen, that he was "involved in drugs" and that he was on probation when he murdered the victim. None of those considerations is impugned by any discrepancy between the defendant's actual criminal record and the record that was provided in the presentence report. Similarly, the court made no mention at all of the defendant's purported prior assault of an elderly person. Thus, despite the state's failure to correct all of the errors in the presentence report relating to the defendant's criminal history, the record demonstrates that the court did not substantially rely on these inaccuracies in imposing its sentence. See State v. Petitpas , supra, 183 Conn. App. at 449-50, 193 A.3d 104. Further, we agree with the trial court that the sentencing court's summarization of the evidence regarding the manner in which the defendant committed the underlying offense was not materially inaccurate, nor was the disputed fact-namely, whether the victim sustained a "graze" wound-substantially relied on by the court. At trial, several witnesses testified that the defendant made multiple stabbing motions toward the victim prior to inflicting the lethal blow. Although the defendant is correct that the evidence indicated that the victim sustained a single fatal injury, the court's statement that the victim was "grazed" prior to being stabbed to death was not without a modicum of support in the record. See State v. Francis , supra, 228 Conn. at 121, 635 A.2d 762. Moreover, the defendant's sentence clearly was predicated on his killing the victim by stabbing him in the chest, not on the disputed graze wound. Neither the purported inaccuracies contained in the defendant's presentence report nor the court's account of the manner in which the underlying murder occurred support the conclusion that the defendant's fifty year sentence was imposed in an illegal manner. Consequently, we conclude that the trial court did not abuse its discretion in denying the defendant's motion to correct an illegal sentence. The judgment is affirmed. In this opinion the other judges concurred. The present motion is predicated on the same grounds as an earlier motion to correct an illegal sentence that the defendant, then self-represented, filed on July 12, 2010, and amended on October 12, 2010. That motion was denied by the trial court, Gold , J. , and the defendant appealed to this court, which reversed the trial court's judgment on the ground that the trial court was required to follow the procedure set forth in Anders v. California , 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), before it properly could deny the defendant's request for the appointment of counsel. See State v. Francis , 148 Conn. App. 565, 590-91, 86 A.3d 1059 (2014), rev'd, 322 Conn. 247, 140 A.3d 927 (2016). The state appealed to our Supreme Court, which reversed the judgment of this court on the ground that the "Anders procedure is not strictly required to safeguard the defendant's statutory right to counsel in the context of a motion to correct an illegal sentence." State v. Francis , 322 Conn. 247, 250-51, 140 A.3d 927 (2016). The court concluded, however, that the trial court "improperly failed to appoint counsel to assist the defendant in determining whether there was a sound basis for him to file such a motion," and, thus, remanded the case to the trial court so that counsel could be appointed to represent the defendant. Id., at 251, 140 A.3d 927. The defendant argues that because he was convicted of assault in the third degree, which was a class A misdemeanor punishable by no more than one year in prison, the four year sentence he received was illegal and, thus, an inaccuracy that the court substantially relied on. The defendant's three felony convictions were (1) possession of narcotics in violation of General Statutes (Rev. to 1989) § 21-279(a), (2) conspiracy to possess cocaine in violation of General Statutes § 53a-48(a) and General Statutes (Rev. to 1989) § 21-279(a), and (3) murder in violation of § 53a-54a(a). Despite the fact that the court referred to the second conviction as conspiracy to sell cocaine, the actual conviction the defendant received nonetheless was a felony conviction. We also disagree with the defendant's assertion that because his previous sentence for assault in the third degree allegedly was illegal, the sentencing court was not permitted to rely on the fact that he was on probation when he committed the underlying murder. Regardless of the merits of the defendant's argument that his sentence for his conviction of assault in the third degree was illegal, the defendant does not dispute that he was on probation when he committed this murder; accordingly, this fact was not materially inaccurate when it was relied on by the sentencing court. "On August 12, 1990, the defendant and the victim met again. At approximately 4 p.m. on that day, two witnesses, Jennifer Green and Sandra Brown, were on the porch of Brown's residence at 165 Homestead Avenue in Hartford. At that time, they saw a young man, later determined to be the victim, walking toward them on Homestead Avenue, holding an 'ice pop' in his hand. At the same time, two additional witnesses, Victor Lowe and Fred Faucette, were standing on the sidewalk of Homestead Avenue. They also noticed the victim. "All four witnesses then observed a red Mitsubishi automobile drive up Homestead Avenue, pass the victim, stop suddenly, back up and halt near him. The defendant then emerged from the driver's side of the car and approached the victim. An argument ensued between the two men. This confrontation occurred twenty to forty feet from Lowe and Faucette. "While the defendant and victim exchanged words, the four witnesses observed, from different vantage points, that the defendant held his right hand behind his back. From where they were located, both Green and Brown observed that the defendant's hand, which was behind his back, was on the handle of a knife. Upon seeing the knife, Brown commented to Green, 'He wouldn't dare do that.' "After further words had been exchanged, the victim agreed to fight the defendant. The victim did not, however, make any physical movement toward the defendant. The defendant then pulled the knife from behind his back and began to make stabbing motions at the victim. One of these stabbing motions cut the victim's ice pop in half as the victim was retreating. "The victim ran into a nearby yard where he was pursued by the defendant. There, the defendant stabbed the victim in the upper left portion of his chest, causing his death. The defendant then reentered the car and left the scene. He was arrested in Miami, Florida, on August 17, 1990." State v. Francis , supra, 228 Conn. at 120-21, 635 A.2d 762.

12511347

Catherine LEDERLE v. Stevan SPIVEY

Lederle v. Spivey

2019-08-27

SC 20016

481

495

213 A.3d 481

213

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:58:09.224733+00:00

Fastcase

Catherine LEDERLE v. Stevan SPIVEY

Catherine LEDERLE v. Stevan SPIVEY SC 20016 Supreme Court of Connecticut. Argued January 24, 2019 Officially released August 27, 2019 Tara C. Dugo, with whom, on the brief, was Norman A. Roberts II, Stamford, for the appellant (plaintiff). David V. DeRosa, Naugatuck, for the appellee (defendant). Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

6654

40811

KAHN, J. In this dissolution of marriage action, the plaintiff, Catherine Lederle, appeals, following our grant of certification, from the judgment of the Appellate Court reversing the decision of the trial court, which had awarded appellate attorney's fees to the plaintiff under the bad faith exception to the American rule. The plaintiff contends that the Appellate Court did not accord the proper level of deference in determining that the trial court's findings lacked sufficient specificity. The defendant, Stevan Spivey, responds that the Appellate Court properly applied the abuse of discretion standard and also correctly concluded that, in determining that the appellate claims lacked color, the trial court improperly assessed the conduct of the defendant's attorney rather than that of the defendant. The defendant claims that the amount of the award was unreasonable and excessive because (1) the plaintiff's success in the appeal for which fees were awarded was not due to the efforts of the plaintiff's counsel, and (2) the defendant's attorney charged him a significantly lower amount of fees for representing him in that appeal. We reverse the judgment of the Appellate Court and conclude that the trial court did not abuse its discretion in setting the amount of the fees. The Appellate Court opinions in the present case have set forth the following relevant facts and procedural history. "The parties were married in Darien on December 31, 1998. One child was born of the marriage in 2000. Thereafter, the marriage broke down irretrievably, and, in March, 2005, the plaintiff commenced an action seeking to dissolve the marriage. On May 2, 2007, the court, Abery-Wetstone , J ., rendered a judgment of dissolution [2007 decision]. As part of this decision, the court acknowledged the plaintiff's claim that she needed to move to Virginia in order to remain competitive in her employment with Lexmark, and found that it was in the best interest of the child to relocate with her to Virginia. The defendant appealed from the judgment, arguing, inter alia, that the court improperly permitted the plaintiff to relocate with their minor child to Virginia. [The Appellate Court] affirmed the judgment of the court, and [the] Supreme Court denied certification to appeal. Lederle v. Spivey , 113 Conn. App. 177, 965 A.2d 621 [ ( Lederle I ) ], cert. denied, 291 Conn. 916, 970 A.2d 728 (2009)." Lederle v. Spivey , 151 Conn. App. 813, 814-15, 96 A.3d 1259 ( Lederle II ), cert. denied, 314 Conn. 932, 102 A.3d 84 (2014). The defendant subsequently learned that the plaintiff had not started her employment at Lexmark because she lost that position but had started a position at a different company in Virginia. "The defendant subsequently filed an amended motion to open the judgment, in which he claimed that [t]he plaintiff, in her trial testimony committed fraud with respect to the issue of her Lexmark employment and specifically whether or not [her Lexmark employment position] was available in Virginia on the dates testified to.... According to the defendant, [t]he plaintiff had a continuing duty to disclose the status of her job situation with Lexmark after [the May 2, 2007] judgment [of the trial court], and before the Appellate Court issued a . decision in [March] 2009.... The defendant further argued that the plaintiff's failure to disclose the status of her job situation with Lexmark constituted fraud with respect to a material fact or facts which ultimately led to [the trial] court's conclusion that [the] plaintiff and the minor child should be permitted to relocate from the state of Connecticut to the state of Virginia for primarily employment purposes.... "The court, Emons , J ., heard oral argument on the motion and, after receiving a memorandum of law from counsel for each party in support of their position, issued a memorandum of decision denying the motion to open on January 28, 2013 [2013 decision]. In reaching its decision, the court found that [a]fter the May 2, 2007 judgment, on June 5, the plaintiff lost her employment at Lexmark.... On or about August 20, 2007, the plaintiff relocated to Virginia and at or about the same time, began a new job at Xerox, also located in Virginia. The court noted that Judge Abery-Wetstone found numerous reasons why relocation was in the best interest of the minor child and that no single factor controlled the decision of the court. On the basis of the foregoing, the court held that while the plaintiff did have a duty to disclose that she lost her Lexmark job and procured a new one at Xerox, prior to the Appellate [Court's] decision, her failure to disclose [did] not constitute fraud." (Citations omitted; internal quotation marks omitted.) Lederle v. Spivey , 174 Conn. App. 592, 594-95, 166 A.3d 636 (2017) ( Lederle III ). The defendant appealed from the judgment of the trial court to the Appellate Court, claiming that the court "(1) improperly held a portion of the hearing on the motion to open in chambers and off the record; and (2) abused its discretion by deciding the motion to open, which was based on a claim of fraud and therefore involved a question of material fact, without the benefit of sworn testimony or other evidence." Lederle II , supra, 151 Conn. App. at 814, 96 A.3d 1259. The Appellate Court did not directly address either of the defendant's claims. It held that the record was inadequate to review the defendant's first claim. Id., at 816, 96 A.3d 1259. The court rejected the defendant's second claim on the basis of its conclusion that, once the final judgment of dissolution had been rendered, as a matter of law, the plaintiff had no continuing duty to disclose the loss of her Lexmark employment. Id., at 819, 96 A.3d 1259. While the defendant's appeal from the denial of his motion to open was pending before the Appellate Court, the plaintiff filed the motion that gave rise to the present appeal, seeking appellate attorney's fees for the then pending appeal. The trial court held a hearing on the motion on October 30, 2013, but, because the appeal before the Appellate Court was still pending, continued the matter until after the defendant's appeal was resolved. On February 10, 2015, after the Appellate Court had affirmed the judgment of the trial court denying the motion to open the judgment of dissolution; Lederle II , supra, 151 Conn. App. at 814, 96 A.3d 1259 ; the trial court resumed the hearing on the motion for appellate attorney's fees and, subsequently, issued a memorandum of decision, granting the plaintiff's motion for attorney's fees on the basis of its finding that the defendant's appeal was taken in bad faith and was entirely without color (2015 decision). The defendant appealed from the judgment of the trial court to the Appellate Court, which held that the trial court had abused its discretion in awarding attorney's fees because "its decision lacked the 'high degree of specificity' as to its finding that the defendant's appeal was entirely without color." Lederle III , supra, 174 Conn. App. at 598, 166 A.3d 636. Specifically, the Appellate Court explained that the trial court, in its 2015 decision, (1) did not properly set forth separate, subordinate findings to support each of its ultimate findings as to lack of colorability and bad faith; id., at 603-604, 166 A.3d 636 ; and (2) in determining that the defendant's claims lacked color, improperly failed to apply the proper standard for colorability, which, according to the Appellate Court, should have been the standard that applies to a party rather than an attorney. Id., at 604, 166 A.3d 636. This appeal followed. We begin by setting forth the general principles governing the application of the bad faith exception to the American rule. "[T]his state follows the general rule that, except as provided by statute or in certain defined exceptional circumstances, the prevailing litigant is ordinarily not entitled to collect a reasonable [attorney's] fee from the loser.... That rule does not apply, however, where the opposing party has acted in bad faith.... It is generally accepted that the court has the inherent authority to assess attorney's fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.... This bad faith exception applies, not only to the filing of an action, but also in the conduct of the litigation.... It applies both to the party and his counsel." (Citations omitted; internal quotation marks omitted.) Maris v. McGrath , 269 Conn. 834, 844-45, 850 A.2d 133 (2004). We have explained that, in order to impose sanctions under the bad faith exception, "the trial court must find both that the litigant's claims were entirely without color and that the litigant acted in bad faith." (Emphasis in original.) Berzins v. Berzins , 306 Conn. 651, 663, 51 A.3d 941 (2012). The court must make these findings with "a high degree of specificity ." (Internal quotation marks omitted.) Id., at 662, 51 A.3d 941. The requirement of an independent finding that the challenged actions or claims are entirely without color ensures that "fear of an award of [attorney's] fees against them will not deter persons with colorable claims from pursuing those claims ." (Internal quotation marks omitted.) Maris v. McGrath , supra, 269 Conn. at 845, 850 A.2d 133. The requirement of that independent finding means that, if a court concludes that a claim is colorable, it cannot award attorney's fees, even if the court were to conclude that the person against whom sanctions are sought acted in bad faith. When, as in the present case, the actor's bad faith is predicated on the theory that he knowingly brought claims entirely lacking in color, colorability and bad faith are, by necessity, closely linked. For that reason, we take the opportunity to clarify the distinction between colorability and bad faith. Colorability is measured by an objective standard, whereas bad faith is measured by a subjective one. Colorability focuses on the merits of the claim. A "colorable claim" is defined as one "that is legitimate and that may reasonably be asserted, given the facts presented and the current law (or a reasonable and logical extension or modification of the current law)." Black's Law Dictionary (9th Ed. 2009) p. 282. Put another way, a claim is colorable if, given the facts presented and the current law (or a reasonable extension thereof), the claim arguably has merit. Although we have stated that the standard for colorability varies depending on whether the person against whom sanctions are sought is a party or the party's attorney; see Maris v. McGrath , supra, 269 Conn. at 847, 850 A.2d 133 ; we now clarify that the inquiry is the same in either case. As the United States Court of Appeals for the Second Circuit has explained, "[a] claim is colorable, for the purpose of the bad faith exception, when it has some legal and factual support, considered in light of the reasonable beliefs of the individual making the claim." Nemeroff v. Abelson , 620 F.2d 339, 348 (2d Cir. 1980). Put simply, the colorability inquiry asks whether there is a reasonable basis, given the facts, for bringing the claim, regardless of whether it is brought by an attorney or a party. A determination of bad faith, by contrast, rather than focusing on the objective, reasonable beliefs of the person against whom sanctions are sought, focuses on subjective intent. We have emphasized that, in determining whether a party has engaged in bad faith, "[t]he appropriate focus for the court . is the conduct of the party in instigating or maintaining the litigation." (Internal quotation marks omitted.) Maris v. McGrath , supra, 269 Conn. at 847, 850 A.2d 133. From that conduct, the court may infer the subjective intent of the person against whom sanctions are sought. Some examples of evidence that would support a finding of bad faith include "a party's use of oppressive tactics or its wilful violations of court orders"; id., at 845-46, 850 A.2d 133 ; or a finding that the challenged actions "[are taken] for reasons of harassment or delay or for other improper purposes ." CFM of Connecticut, Inc. v. Chowdhury , 239 Conn. 375, 394, 685 A.2d 1108 (1996), overruled in part on other grounds by State v. Salmon , 250 Conn. 147, 155, 735 A.2d 333 (1999). When, as in the present case, the claim that an individual has brought or maintained an action in bad faith is predicated on the individual's personal knowledge that there is no factual support for the claim or claims at issue, in order to infer that the individual acted in bad faith, the court must make a finding that the individual knew of the absence of that factual basis. Applying these principles to the present case, we disagree with the Appellate Court's conclusion that the trial court, in its 2015 decision, abused its discretion in awarding attorney's fees to the plaintiff. In arriving at our conclusion, we are mindful that, in applying the abuse of discretion standard, our "review of the trial court's decision is a deferential one. First, we observe that, [w]here the trial court reaches a correct decision but on [alternative] grounds, this court has repeatedly sustained the trial court's action if proper grounds exist to support it.... [W]e . may affirm the court's judgment on a dispositive [alternative] ground for which there is support in the trial court record.... Additionally, [i]t is well established that we review the trial court's decision to award attorney's fees for abuse of discretion.... This standard applies to the amount of fees awarded . and also to the trial court's determination of the factual predicate justifying the award." (Citation omitted; internal quotation marks omitted.) Berzins v. Berzins , supra, 306 Conn. at 661, 51 A.3d 941. In its 2015 decision, the trial court found that the defendant acted in bad faith in taking an appeal in Lederle II and that his appellate claims were entirely lacking in color. The court accordingly awarded sanctions against the defendant, as opposed to his attorney. See Lederle III , supra, 174 Conn. App. at 602, 166 A.3d 636. The trial court predicated its ultimate findings on the following subordinate factual findings. As to the defendant's claim on appeal that the trial court improperly held a portion of the hearing on the motion to open in chambers and off the record, the court found that nothing in the record provided support for that claim. The trial court found that the record demonstrated only two instances in which the court conducted any business related to this matter in chambers: first, prior to the start of the hearing to discuss procedural issues with counsel for both parties and, second, to read two decisions as requested by counsel. The court further found that, although the defendant was physically present at all court proceedings, neither he nor his attorney raised any objection on the basis that the court was holding a portion of the hearing in chambers and off the record. As to the defendant's claim on appeal that the trial court, in its 2013 decision, abused its discretion by ruling on the motion to open-which was predicated on the basis of a claim of fraud-without hearing testimony or taking evidence, the court, in its 2015 decision, predicated its ultimate determination that the claim lacked any indicia of color on two independent findings, either of which on its own would support the court's ultimate finding. First, the court found that the parties agreed to a two part procedure by which the court would first determine whether, but-for the plaintiff's job with Lexmark, the trial court, in its 2007 decision, would not have granted her motion for permission to relocate with the minor child to Virginia. If, and only if, the court answered that question in the affirmative, would it consider whether an evidentiary hearing would be required to resolve the motion to open. The court found that it had explained the proposed bifurcated procedure not only to counsel, but also to both the plaintiff and the defendant. Second, the court found that the transcript of the October 24, 2012 hearing clearly revealed that, in lieu of an evidentiary hearing, the parties agreed to proceed by filing simultaneous briefs with factual stipulations. The trial court's subordinate findings were sufficiently specific to support its ultimate findings that the defendant acted in bad faith in knowingly bringing appellate claims that were entirely lacking in color. As to the defendant's first appellate claim-that the court conducted part of the hearing in chambers and off the record-the court's findings were sufficiently specific to support the conclusion that the claim was entirely lacking in color. The court found not only that there was no evidence to support the claim, but also found that the record reflected the purpose of the two instances during the hearing when the court retired to chambers. The first instance was prior to the hearing and related to purely procedural matters and the second instance was when the court retired to chambers to read decisions provided to it by counsel. It is difficult to imagine what more could be said, once a court has found that no evidence supports the claim and that the only relevant evidence in the record expressly contradicts the claim. The court further found that the defendant was physically present to observe that lack of evidence. That finding establishes the defendant's firsthand knowledge and supports the ultimate finding that the defendant knew that his claim lacked merit and, therefore, acted in bad faith in pursuing the claim on appeal. As to the defendant's second appellate claim-that the trial court, in its 2013 decision, improperly denied the motion to open without hearing testimony or taking evidence-the court found, in its 2015 decision, that, during the hearing on the motion to open, the parties had agreed that the court would first resolve the threshold legal issue of materiality and would subsequently hold an evidentiary hearing only if it concluded that the plaintiff's employment with Lexmark was a material fact. Excerpts of the transcripts of the October 24, 2012 hearing on the defendant's motion to open were attached in an appendix to the trial court's 2015 decision. During the October 24, 2012 hearing, after some initial colloquy regarding disputed facts, counsel for both parties proposed that the court decide the motion to open in two steps. As the attorney for the plaintiff explained to the court, they proposed "a methodology [that] perhaps [would result in the court] not having to sort through these and other important facts ." (Emphasis added.) The parties had engaged in a series of discussions in an attempt to "boil this down to a nut." As a result of those discussions, they agreed that the defendant could prevail on his motion to open the judgment only if the trial court would not have granted the plaintiff's motion for permission to relocate-and the Appellate Court would not have upheld that ruling-if she had not been employed by Lexmark in Virginia. Accordingly, they both agreed that the court should first resolve the purely legal determination of whether the plaintiff's employment with Lexmark was the "but-for" cause underlying both the trial court's decision granting the plaintiff's motion for permission to relocate and the Appellate Court decision upholding that ruling. The trial court would proceed to the evidentiary phase only if it answered that legal question in the affirmative. The parties therefore requested that, prior to hearing any evidence, the court first review both the 2007 decision rendering final judgment of dissolution and granting permission to the plaintiff to relocate to Virginia and the Appellate Court decision in Lederle I that affirmed the judgment of the trial court. See Lederle I , supra, 113 Conn. App. at 177, 965 A.2d 621. Before the court took a recess to read the two decisions, it clarified in open court, in the presence of both parties and their counsel, its understanding of the agreed upon procedure as requiring the court to "make an initial determination as to whether this is a 'but-for' situation." The court further clarified the parties' agreement that, if the court resolved the motion to open on the threshold issue, "we're done and you can do whatever you want to do with your motions and everything like that." Finally, the trial court made clear to the parties its understanding that, if the court were unable to resolve the motion on the initial legal issue, then "correct me if I'm wrong . we would have to schedule a lengthy factual hearing ." Following the court's review of the decisions of the trial court and the Appellate Court, in its 2013 decision, the court concluded that the plaintiff's employment with Lexmark was not the "but-for" cause of the decision granting the plaintiff permission to relocate. To the contrary, the court explained, the plaintiff's employment was only one among "numerous reasons" that the 2007 decision had determined that relocation was in the best interest of the minor child. The court quoted from the 2007 decision, which specifically stated that "[n]o single factor has controlled the decision of the court" and that the court had weighed "all the evidence" and considered "all the factors relevant to the child's best interest" in determining to grant the plaintiff permission to relocate. The 2007 decision also noted that, in granting permission to relocate, the court had considered "the body of case law regarding best interest, the specific facts of this case, the testimony and credibility of the various witnesses here, and the court's assessment and evaluation of the best interest of this specific child. The court has considered the recommendations of both the [guardian ad litem] and the family relations counselor of sole custody to the mother and approval of the relocation." On the basis of its review of the Appellate Court's decision in Lederle I , the trial court also concluded that the plaintiff's employment with Lexmark was not material to that court's affirmance of the trial court's 2007 decision. The trial court's findings as to the defendant's second appellate claim are sufficiently specific to support its ultimate findings that the claim lacked any colorability, and that the defendant acted in bad faith by knowingly pursuing a claim entirely lacking in color. The essence of the defendant's claim on appeal in Lederle II was that the court improperly decided the motion to open without taking any evidence. As to the colorability of that claim, the trial court found that the parties expressly agreed in open court to the bifurcated procedure by which the court would hear evidence only if it determined that the plaintiff's employment with Lexmark was a fact that was material to both the trial court's 2007 decision and the Appellate Court's decision in Lederle I . The trial court also found that it concluded, in its 2013 decision, that the plaintiff's Lexmark employment was not material to either of those decisions. The trial court's resolution of the motion to open, therefore, rested entirely on a legal conclusion and did not require any evidence-which is precisely how the parties had agreed to proceed. Those findings support the trial court's ultimate determination in its 2013 decision that this claim lacked any indicia of color. The court further found that it had clarified in open court, in the presence of the parties and their attorneys, that this procedure was in accordance with the agreement between the parties. The defendant therefore had firsthand knowledge that his appellate claim lacked any indicia of color. That finding supports the court's ultimate finding in its 2013 decision that the defendant acted in bad faith in pursuing this claim on appeal. For the foregoing reasons, we conclude that the Appellate Court incorrectly concluded that the trial court had abused its discretion in awarding attorney's fees to the plaintiff on the basis of the bad faith exception to the American rule. Finally, we address the defendant's claim that, even if the trial court did not abuse its discretion in determining that an award was warranted under the bad faith exception to the American rule, the amount of the award was unreasonable and excessive because (1) the plaintiff's success at the Appellate Court in Lederle II was not due to the efforts of plaintiff's counsel, and (2) the fees sought by the plaintiff were significantly higher than the fees charged by the defendant's attorney for his work on the appeal. We first set forth the applicable standard of review. "[T]he amount of attorney's fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion: A court has few duties of a more delicate nature than that of fixing counsel fees. The degree of delicacy increases when the matter becomes one of review on appeal. The principle of law, which is easy to state but difficult at times to apply, is that only in case of a clear abuse of discretion by the trier may we interfere.... The trier is always in a more advantageous position to evaluate the services of counsel than are we." (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc. , 265 Conn. 210, 258-59, 828 A.2d 64 (2003). "It is well established that a trial court calculating a reasonable attorney's fee makes its determination while considering the factors set forth under rule 1.5 (a) of the Rules of Professional Conduct. Sorrentino v. All Seasons Services, Inc. , [245 Conn. 756, 775, 717 A.2d 150 (1998) ] ('[r]ule 1.5 [a] of the Rules of Professional Conduct lists the factors that ordinarily determine the reasonableness of an attorney's fee'); Andrews v. Gorby , 237 Conn. 12, 24, 675 A.2d 449 (1996) ('[t]ime spent is but one factor in determining the reasonableness of an attorney's fee'). A court utilizing the factors of rule 1.5 (a) considers, inter alia, the time and labor spent by the attorneys, the novelty and complexity of the legal issues, fees customarily charged in the same locality for similar services, the lawyer's experience and ability, relevant time limitations, the magnitude of the case and the results obtained, the nature and length of the lawyer-client relationship, and whether the fee is fixed or contingent." (Footnote omitted.) Schoonmaker v. Lawrence Brunoli, Inc. , supra, 265 Conn. at 259, 828 A.2d 64. The fee hearing took place over the course of four days. The trial court began the hearing on October 30, 2013, but postponed the proceedings until the resolution of the appeal in Lederle II . The final three days of the hearing were held in February, 2015, at which time the court heard testimony and took evidence concerning the amount of the plaintiff's attorney's fees. The court heard the testimony of the plaintiff's attorney, Norman A. Roberts II, who was questioned extensively regarding his fee affidavit as well as the attached, detailed invoices for his firm's services. Roberts claimed that his reasonable fees for the services rendered as a result of the defendant's bad faith claims on appeal amounted to $61,625.90. Included in that total were fees for services rendered by two associate attorneys and a paralegal employed by the firm. Slightly less than one half of the total fees were for services rendered directly by Roberts, who asserted in the fee affidavit that he rendered 60.3 hours of service at a rate of $500 per hour, resulting in fees of $30,150. The defendant's examination of Roberts and testing of the fee affidavit were thorough. He questioned Roberts concerning the propriety of charging for the services of the paralegal, on the basis that some of those services could be classified as clerical. He also highlighted portions of each of the twenty attached individual invoices, probing the necessity of the time spent on various tasks. For example, with respect to the invoice dated May 31, 2013, the defendant questioned the need to charge for two attorneys, Roberts and an associate, to attend a preargument conference, resulting in a bill for more than ten hours of time. The defendant further questioned Roberts concerning the charges for services rendered in connection with the plaintiff's attempt to recover attorney's fees from the defendant. The defendant focused particular attention on two issues in his questioning of Roberts. First, he challenged the propriety of the plaintiff's recovering attorney's fees from him for the appeal on the basis that the Appellate Court granted the defendant's motion to strike the portions of the plaintiff's appellate brief that referenced and relied on the October 30, 2013 hearing. In closing argument to the trial court, the defendant contended that, because the Appellate Court rendered judgment in favor of the plaintiff on the basis of theories other than those advanced by Roberts, and because the court granted the defendant's motion to strike portions of the plaintiff's brief, Roberts did not actually "win" the appeal for the plaintiff. Accordingly, the defendant argued, he should not be charged for the time that Roberts spent on the appeal. Second, the defendant introduced evidence of the fees charged by the defendant's previous appellate counsel, Paul Greenan, which amounted to $9700. The trial court admitted that evidence, over the plaintiff's objection, on the ground that it was relevant to the question of the reasonableness of the plaintiff's fees. The defendant later asked Roberts why his fees were six times higher than his counsel's fees. Roberts explained that the difference was due, in part, to the different rates charged: Roberts' rate is $500 per hour, whereas the defendant's counsel charges $200 per hour. Roberts also testified that the discrepancy was due, in part, to the conduct of the defendant's counsel, which required Roberts to expend more time on the appeal than he otherwise would have. For example, Roberts testified that the defendant's counsel "would come to court and have other business and [Roberts] was forced to stand there and wait while [the defendant's counsel] attended [to] other business ." During the course of the fee hearing, the trial court stated its view that it considered the amount that Roberts sought, approximately $61,000, to be "way . too much." At one point, the court stated that it "had a hard time figuring out" how it was possible to justify that amount of fees in connection with the present case. Ultimately, the court awarded the plaintiff approximately one half of what Roberts had claimed, $30,000. Although the court did not specify the particular facts on which it relied, it is evident from the record that, in awarding the plaintiff less than one half of the fees requested, the court considered Roberts' detailed testimony regarding the fee affidavit, the fee affidavit itself, the relative rates charged by Greenan and Roberts, and the challenges raised by the defendant regarding certain charges. A reasonable reading of the transcripts and the fee affidavit supports the conclusion that the trial court discounted all but the fees for the services rendered directly by Roberts himself. On the basis of the foregoing, we conclude that the trial court acted within its discretion in awarding the plaintiff $30,000 in attorney's fees. The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the trial court's award of attorney's fees. In this opinion the other justices concurred. This court granted the plaintiff's petition for certification to appeal, limited to the following issue: "Did the Appellate Court properly apply the abuse of discretion standard of review in holding that the trial court's memorandum of decision lacked 'factual findings with a high degree of specificity' when the trial court found that the defendant's claims on appeal lacked any indicia of color?" Lederle v. Spivey , 327 Conn. 954, 171 A.3d 1050 (2017). Pursuant to the American rule, "except as provided by statute or in certain defined exceptional circumstances, the prevailing litigant is ordinarily not entitled to collect a reasonable [attorney's] fee from the loser." (Internal quotation marks omitted.) CFM of Connecticut, Inc. v. Chowdhury , 239 Conn. 375, 393, 685 A.2d 1108 (1996), overruled in part on other grounds by State v. Salmon , 250 Conn. 147, 155, 735 A.2d 333 (1999). Although the defendant's claim is outside the scope of the certified issue, the plaintiff has had the opportunity to brief that issue. Therefore, in the interests of judicial economy, we address the defendant's claim. We observe, however, that, even if we agreed with the defendant that the trial court abused its discretion in setting the amount of the award, that conclusion would not serve as an alternative ground to affirm the judgment of the Appellate Court, which held that the trial court had abused its discretion in awarding attorney's fees at all . Our decision in the present case concludes that the trial court did not abuse its discretion in determining that attorney's fees were warranted under the bad faith exception. The Appellate Court did not reach the issue of whether the trial court had abused its discretion as to the amount of the award. In his brief to this court, the defendant asserts that he raised a third claim on appeal in Lederle II , contending that, because "a decision on the motion to [open] was made behind closed doors and without a court reporter, the court effectively sealed the hearing from the public in violation of the public's right to access." Rather than a separate claim, the defendant identifies an additional theory in support of his claim that the court improperly held a portion of the hearing in chambers and off the record. In his brief to this court, the defendant takes issue with the conclusion of the Appellate Court that the plaintiff had no continuing duty to disclose the loss of her Lexmark employment. That issue, however, is not within the scope of the certified question and, therefore, is not before us in the present appeal. We further note that we find unpersuasive the defendant's argument that, because the Appellate Court sua sponte concluded that there was no continuing duty to disclose, his claim on appeal that the trial court improperly decided the motion to open without taking evidence was a colorable claim. The fact that the Appellate Court resolved the case on a different ground has no bearing on the merits-or the complete lack thereof-of the claim that the defendant raised before that court. The court in that decision also granted the plaintiff's motion for termination of the stay of proceedings, which she had filed in January, 2015. We find unpersuasive the defendant's contention that, because the trial court also found that the defendant's attorney was aware of the complete lack of any merit to both of the defendant's appellate claims, the trial court failed to make the requisite finding as to the defendant. The mere fact that the trial court made the additional, irrelevant finding that the defendant's attorney was aware that the defendant's appellate claims were completely lacking in color has no bearing on the fact that the trial court also found that the defendant knew that his claims lacked any indicia of color. Although we have stated that the findings must have a high degree of specificity; Berzins v. Berzins , supra, 306 Conn. at 662, 51 A.3d 941 ; we have never stated that the trial court must separately indicate which factual findings relate to which prong, colorability or bad faith, and we reject that proposition. Frequently, the subordinate factual findings that support bad faith will also provide support for lack of colorability. Rather than requiring a rigid structure in the trial court's analysis, we merely examine the court's findings to determine whether they are sufficiently specific to support the conclusion that the court did not abuse its discretion in arriving at its ultimate findings of bad faith and lack of colorability. We note that the 2007 decision could reasonably be read to suggest that the plaintiff's employment with Lexmark was material to the court's decision granting relocation. Because the defendant, however, did not challenge the trial court's legal conclusion to the contrary, we need not consider whether the trial court's interpretation of the 2007 decision was correct. As an alternative ground for affirmance, the defendant contends that there was a colorable basis for the two claims that he raised on appeal in Lederle I . As we have discussed, the trial court's subordinate findings are sufficiently specific to support the court's ultimate determination that both of his claims were entirely lacking in color. Accordingly, we need not address the defendant's alternative ground for affirmance. We note, however, that our review of the record confirms the trial court's determination that neither of the defendant's appellate claims had any indicia of color. As we already have stated in this opinion, the trial court predicated its ultimate finding as to the defendant's appellate claim that the court improperly decided the motion to open without hearing evidence on two, independent bases: the parties' agreement to the bifurcated proceeding and an alleged stipulation of facts entered into by the parties in lieu of an evidentiary hearing. Our conclusion that the trial court's finding that the parties agreed to the bifurcated proceeding-which resulted in the motion to open being resolved under the purely legal question-renders it unnecessary for us to consider the alternative ground for affirmance relied on by the defendant, namely, that the trial court's second subordinate finding in support of its ultimate finding of lack of colorability-that the parties entered into a stipulation of facts-was clearly erroneous. We observe, however, that our review of the October 24, 2012 transcript suggests, to the contrary, that there was no agreement between the parties in court that they would proceed by way of stipulation in lieu of an evidentiary hearing. Although it was later suggested that the parties had exchanged e-mails in which they agreed that their statements of facts in their briefs would serve as a joint stipulation of facts for purposes of the motion to open, there is no mention during the October 24, 2012 hearing of any stipulation entered into by the parties. In fact, the transcript of the October 24, 2012 hearing suggests that, if the trial court had concluded that the plaintiff's employment with Lexmark was material to the 2007 decision granting her permission to relocate, the court would have proceeded to an evidentiary hearing. The court expressly stated that expectation to the parties, and neither party contradicted the court. Moreover, during the course of the hearing, the parties identified various issues that remained contested, including credibility issues, the date when the plaintiff learned that she no longer had a job with Lexmark, and whether she had left that position voluntarily. Because, however, it is clear from the record that the parties agreed to the bifurcated proceeding, it is immaterial that the record does not support the court's finding that the parties entered into a stipulation of facts. We reject the defendant's suggestion that we should not accord deference to the trial court's decision because the fees incurred were in connection with proceedings before the Appellate Court. The applicable standard of review is deferential because the trial court has heard the testimony and received evidence regarding the reasonableness of the fees and, accordingly, is in the best position to evaluate the evidence and to make the necessary factual findings. The fact that the proceedings giving rise to the claim for attorney's fees took place on appeal does not change the standard of review. Our review of the invoices reveals a slight error in the calculation of Roberts' total hours. The invoices show that he devoted a total of 59.5 hours as a result of the defendant's appellate claims. The defendant claims that the clean hands doctrine bars recovery on this basis. That argument is without merit.

12503746

BLOOMFIELD HEALTH CARE CENTER OF CONNECTICUT, LLC v. Jason DOYON

Bloomfield Health Care Ctr. of Conn., LLC v. Doyon

2018-10-09

AC 40281

415

437

197 A.3d 415

197

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731571+00:00

Fastcase

BLOOMFIELD HEALTH CARE CENTER OF CONNECTICUT, LLC v. Jason DOYON

BLOOMFIELD HEALTH CARE CENTER OF CONNECTICUT, LLC v. Jason DOYON AC 40281 Appellate Court of Connecticut. Argued May 15, 2018 Officially released October 9, 2018 Anne Jasorkowski, with whom, on the brief, was Angelo Maragos, Norwalk, for the appellant (plaintiff). Lauren A. MacDonald, with whom, on the brief, was Timothy R. Scannell, Hartford, for the appellee (defendant). DiPentima, C. J., and Prescott and Eveleigh, Js.

11833

73019

PRESCOTT, J. In Jewish Home for the Elderly of Fairfield County, Inc. , v. Cantore , 257 Conn. 531, 532, 543-44, 778 A.2d 93 (2001) ( Jewish Home ), our Supreme Court recognized that a nursing home that has been harmed by the negligence of a conservator is entitled to recover, through an action on a probate bond, the losses it suffered as a result of the conservator's failure to timely file an application for Medicaid benefits on behalf of his or her ward. This appeal asks us to determine whether to recognize a similar right of recovery in a case where no probate bond was obtained. This appeal arises out of an action by the plaintiff, Bloomfield Health Care Center of Connecticut, LLC, in which it alleged that the defendant, Jason Doyon, breached a duty to use reasonable care in managing the estate of his ward, Samuel Johnson. Specifically, the plaintiff argues that the defendant was negligent by failing to apply for and to obtain on a timely basis Medicaid benefits that were necessary to pay the plaintiff for the cost of Johnson's care at the plaintiff's nursing home. The plaintiff now appeals from the summary judgment rendered by the trial court in favor of the defendant. On appeal, the plaintiff claims that the court improperly concluded that the defendant did not owe it a duty of care and, thus, was entitled to judgment as a matter of law. We agree with the plaintiff and, accordingly, reverse the judgment of the court. The record, viewed in the light most favorable to the plaintiff as the nonmoving party, reveals the following facts. The plaintiff operates a chronic care and convalescent nursing home facility in Bloomfield. On April 19, 2013, Johnson was admitted as a resident to the plaintiff's facility. Thereafter, the plaintiff provided care and services to Johnson at a rate of $360 per day. On October 1, 2013, the cost of care increased to $370 per day. On September 26, 2013, Johnson's daughter, who at the time was acting as his attorney-in-fact, filed an application for Medicaid benefits on behalf of Johnson. On November 26, 2013, Johnson's daughter sold his home. The net proceeds from the sale of the home totaled $48,000. On January 8, 2014, the Department of Social Services (department) denied Johnson's application for Medicaid benefits for failure to provide required information. The information missing from the application included the disposition of the proceeds from the sale of his home, copies of bank statements, information regarding the surrender of his stocks, and proof that his assets totaled less than $1600. On February 26, 2014, the plaintiff petitioned the Probate Court to appoint an involuntary conservator to oversee Johnson's estate for the purpose of assisting him with his finances and Medicaid application, and to ensure that it would be compensated for the necessary care it provided to him. On April 8, 2014, the court adjudicated Johnson incapable of managing his financial affairs, granted the plaintiff's petition, and appointed the defendant as the conservator of Johnson's estate. The court dispensed with the requirement of a probate bond. On April 15, 2014, the defendant tendered the $48,000 in proceeds from the sale of Johnson's home to the plaintiff to be applied to Johnson's outstanding bill, which totaled $124,000 at that time. After the proceeds from the sale of Johnson's home were paid to the plaintiff, his only other source of income was $1363 that he received in social security benefits each month, which the defendant subsequently began paying over to the plaintiff. Although Johnson did not have sufficient remaining funds or income to pay for his care, it was not until nine months later, on January 21, 2015, that the defendant submitted Johnson's application for Medicaid benefits. On February 17, 2015, the department told the defendant that Johnson's application was incomplete and requested that the defendant provide it with additional information by February 28, 2015, including the value of any of Johnson's remaining real property and bank account statements. The defendant failed to provide the department with the requested information, and, on March 24, 2015, Johnson's application was denied. The defendant filed Johnson's second application for Medicaid benefits on August 12, 2015. The application was granted on September 24, 2015, and Johnson's Medicaid benefits were made retroactive to May 1, 2015. Johnson did not receive any Medicaid benefits for the cost of his care prior to that date. On October 21, 2015, Johnson died. On February 1, 2016, the plaintiff commenced the present action. The plaintiff alleged in the operative complaint that the defendant's failure to apply for and to obtain on a timely basis Medicaid benefits for Johnson had violated a duty of care that he owed to the plaintiff. The plaintiff further alleged that the defendant's negligence caused it to suffer financial harm and loss, and therefore it requested monetary damages. On July 19, 2016, the defendant filed an answer to the plaintiff's complaint and special defenses. On September 21, 2016, the defendant filed a motion for summary judgment. In his memorandum of law in support of his motion, the defendant argued that he did not owe a duty of care to the plaintiff. Specifically, he argued that he owed a duty of care only to Johnson, his ward, and thus the plaintiff did not have standing to bring the action. The defendant also argued that he was entitled to quasi-judicial immunity for his actions. In its memorandum in opposition to the defendant's motion for summary judgment, the plaintiff argued that the defendant owed it a duty of care under a common-law theory of negligence. Specifically, the plaintiff argued that it was readily foreseeable that Johnson would be unable to pay it for the cost of his care if the defendant failed to timely submit a Medicaid application on his behalf and, further, that the plaintiff would suffer harm as a result. The plaintiff also argued that public policy supported its claim that the defendant owed it a duty of care and that there was "no principled reason why a conservator should avoid liability for his negligence simply because there is no probate bond in a particular case." Finally, the plaintiff argued that the defendant was not entitled to quasi-judicial immunity because the Probate Court never expressly approved the defendant's actions with respect to Johnson's Medicaid application. On March 13, 2017, the court issued its memorandum of decision granting the defendant's motion for summary judgment, concluding that "the law does not support the plaintiff's claim that the defendant, solely as a result of his appointment as a conservator, owed any duty to the plaintiff." The court reasoned that "the defendant's duty, and, in fact, his authority to pursue Medicaid benefits on behalf of his ward, does not arise out of any relationship between the plaintiff and him, but solely from his appointment by the Probate Court as conservator, and his duties pursuant to that appointment." The court thus determined that the defendant did not owe the plaintiff a duty of care because "[t]he purpose of a conservator is not to manage the ward's estate for the benefit of his creditors but for the benefit of the ward." On March 31, 2017, the plaintiff timely filed the present appeal. The plaintiff claims on appeal that the trial court improperly granted the defendant's motion for summary judgment because it incorrectly concluded that the defendant did not owe it a duty of care. Specifically, the plaintiff argues that the defendant owed it a duty to use reasonable care in managing Johnson's estate because (1) the harm caused to the plaintiff as a result of the defendant's negligence was foreseeable, and (2) public policy supports recognizing a duty of care in this context. We agree with the plaintiff that the defendant owed it a duty to use reasonable care to timely secure Medicaid benefits for Johnson. We begin by setting forth the relevant standards that govern our review of a court's decision to grant a defendant's motion for summary judgment. "Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under the applicable principles of substantive law, entitle him to a judgment as a matter of law . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... [I]ssue-finding, rather than issue-determination, is key to the procedure.... Our review of the decision to grant a motion for summary judgment is plenary.... We therefore must decide whether the court's conclusions were legally and logically correct and find support in the record." (Internal quotation marks omitted.) Barbee v. Sysco Connecticut , LLC , 156 Conn. App. 813, 817-18, 114 A.3d 944 (2015). We begin our analysis by first considering the defendant's role and general duties as conservator of Johnson's estate. General Statutes § 45a-655 sets forth the statutory duties of a conservator of an estate. Section 45a-655(a) provides in relevant part: "A conservator of the estate appointed under section 45a-646, 45a-650, or 45a-654 shall, within two months after the date of the conservator's appointment, make and file in the Probate Court, an inventory, under penalty of false statement, of the estate of the conserved person, with the properties thereof appraised or caused to be appraised, by such conservator, at fair market value as of the date of the conservator's appointment. Such inventory shall include the value of the conserved person's interest in all property in which the conserved person has a legal or equitable present interest, including, but not limited to, the conserved person's interest in any joint bank accounts or other jointly held property. The conservator shall manage all the estate and apply so much of the net income thereof, and, if necessary, any part of the principal of the property, which is required to support the conserved person and those members of the conserved person's family whom the conserved person has a legal duty to support and to pay the conserved person's debts , and may sue for and collect all debts due the conserved person...." (Emphasis added.) Under certain circumstances, if a conservator is appointed to manage an individual's estate, a probate bond is issued. A probate bond is a "bond with security given to secure the faithful performance by an appointed fiduciary of the duties of the fiduciary's trust and the administration of and accounting for all moneys and other property coming into the fiduciary's hands, as fiduciary, according to law." General Statutes § 45a-139(a). Every probate bond is "conditioned for the faithful performance by the principal in the bond of the duties of the principal's trust and administration of and accounting for all moneys and other property coming into the principal's hands, as fiduciary, according to law ." General Statutes § 45a-139(b). If the assets of the ward's estate total twenty thousand dollars or more, the issuance of a probate bond is required. General Statutes § 45a-139(c). A judge has discretion to waive the requirement of a probate bond if the assets of the estate total less than that amount, or under certain circumstances. See Probate Court Rules § 35.1 (b). If a probate bond is issued and the conservator breaches his or her duties as fiduciary of the estate, a third party may bring an action on the bond to recover for the harm caused by the conservator's breach. In Jewish Home , our Supreme Court considered whether the plaintiff in that case, a nursing home facility, had "a right to bring an action on a probate bond when it suffer[ed] a loss as a result of a conservator's failure to ensure payment to the nursing home for his ward's care." Jewish Home , supra, 257 Conn. at 532, 778 A.2d 93. J. Michael Cantore, Jr., had been appointed conservator of the person and estate of Diana Kosminer, a patient of the plaintiff nursing home. Id., at 534, 778 A.2d 93. Cantore subsequently executed and filed with the Probate Court a probate bond in the amount of $50,000, which "was conditioned, as required by § 45a-139, on Cantore faithfully perform[ing] the duties of his trust and administer[ing] and account[ing] for all monies and other property coming into his hands, as fiduciary, according to law ." (Internal quotation marks omitted.) Id., at 534-35, 778 A.2d 93. Cantore, however, failed to use the assets of Kosminer's estate to pay the nursing home for her care or to timely secure Medicaid benefits for her, which resulted in an unpaid balance to the nursing home of $63,000. Id., at 536, 778 A.2d 93. The nursing home subsequently brought an action against Cantore on the probate bond, alleging that he had a duty, "as Kosminer's conservator, to use the assets of her estate to pay for the care and services she had received from the plaintiff." Id., at 533-34, 536, 778 A.2d 93. The nursing home further alleged that Cantore had a duty to apply promptly for Medicaid assistance when the estate's assets approached the $1600 Medicaid eligibility mark. Id., at 536, 778 A.2d 93. Cantore filed a motion to strike the nursing home's complaint for failure to state a legally sufficient cause of action. Id. The trial court granted Cantore's motion to strike, and this court affirmed the court's judgment. Id. On appeal to our Supreme Court, the nursing home argued that "the law imposed certain duties upon Cantore, as conservator of Kosminer's estate and person; he breached those duties by failing to ensure timely payment to the plaintiff through either the estate or through public assistance; the breach of those duties constituted a breach of the probate bond; and the plaintiff was aggrieved by those breaches." Id., at 537, 778 A.2d 93. Cantore argued, however, that the "[nursing home] had no authority to bring an action for the breach of the probate bond because only parties acting as a representative of the estate or seeking recovery for the estate are entitled to bring such actions." Id. In evaluating the plaintiff's claim, our Supreme Court first considered Cantore's duties as a conservator of the estate and conservator of the ward, respectively. Specifically, our Supreme Court noted that "[t]he statutory duties of a conservator are clearly defined in . § 45a-655, which delineates the duties of a conservator of the estate , and General Statutes § 45a-656, which prescribes the duties of a conservator of the person . A conservator of the estate shall manage all of the estate and apply so much of the net income thereof, and, if necessary, any part of the principal of the property, which is required to support the ward and those members of the ward's family whom he or she has the legal duty to support and to pay the ward's debts . A conservator of the person has the duty to provide for the care, comfort, and maintenance of the ward . and the duty shall be carried out within the limitations of the resources available to the ward, either through his own estate or through private or public assistance.... In addition, where a statute imposes a duty and is silent as to when it is to be performed, a reasonable time is implied." (Citations omitted; emphasis in original; footnotes omitted; internal quotation marks omitted.) Id., at 539-40, 778 A.2d 93. Our Supreme Court then considered whether the complaint properly alleged a breach of Cantore's duties as conservator of Kosminer's estate and person. Id., at 541, 778 A.2d 93. The complaint alleged that "Cantore failed to make timely payment to the plaintiff for the care and services it provided to Kosminer and failed to apply for [M]edicaid benefits on Kosminer's behalf once timely payment for the plaintiff's services had exhausted the assets of the estate. The complaint further alleged that these actions by Cantore resulted in a breach of his fiduciary duties as conservator of Kosminer's estate and person. Kosminer incurred a substantial debt as a result of the services she received from the [nursing home]. Cantore's failure to pay this debt, despite the estate's ample resources, constituted a breach of his duty under § 45a-655(a) to use the assets of the estate to pay Kosminer's debts. Furthermore, Cantore's failure to ensure timely payment to the [nursing home] constituted a breach of his duty under § 45a-656(a) to provide for Kosminer's care through the estate or through other private or public assistance." Id. Our Supreme Court concluded, therefore, that the nursing home had properly alleged facts that, if proven, would establish that Cantore failed to fulfill his duties as conservator of Kosminer's estate and person. Id. Our Supreme Court then considered the categories of plaintiffs that can bring an action on a probate bond to recover loss suffered as a result of a conservator's breach of his or her fiduciary duties pursuant to General Statutes (Rev. to 1995) § 45a-144. Id., at 543, 778 A.2d 93. Specifically, our Supreme Court determined that the language of the statute "evince[d] the legislature's intent to create three separate categories of potential plaintiffs in a suit on a probate bond: first, a plaintiff bringing an action as representative of the estate; second, a plaintiff bringing an action in his own right; and third, a plaintiff bringing an action in the right of himself and all others having an interest in the estate ." (Internal quotation marks omitted.) Id., at 543, 778 A.2d 93. Our Supreme Court found that "[t]he [nursing home] fit squarely in the second category of potential plaintiffs authorized by § 45a-144 (a) to bring an action on the probate bond, namely, a plaintiff suing in its own right to recover in its own name for the breach of a probate bond," and concluded, therefore, that the complaint stated a legally sufficient cause of action. Id., at 543-44, 778 A.2d 93. In the present case, unlike in Jewish Home , no probate bond was issued. The plaintiff claims, nevertheless, that although it cannot bring an action against the defendant on a probate bond, it may still bring an action against the defendant under a common-law theory of negligence because the defendant in the present case, like Cantore, owed it a duty to use reasonable care to apply for and to obtain Medicaid benefits for Johnson and had breached that duty. The plaintiff argues that "the absence of a probate bond . is not and should not be determinative of a [c]onservator's liability for his negligent actions under the common law" when the "establishment of a bond is predicated upon the amount of assets" in the estate. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Jarmie v. Troncale , 306 Conn. 578, 589, 50 A.3d 802 (2012). "Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.... Although it has been said that no universal test for [duty] ever has been formulated . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.... [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate the harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibilities for its negligent conduct should extend to the particular consequences or particular plaintiff in the case ." (Emphasis added; internal quotation marks omitted.) Munn v. Hotchkiss School , 326 Conn. 540, 548, 165 A.3d 1167 (2017). "[T]he determination of whether a duty exists . is a question of law." (Internal quotation marks omitted.) Lodge v. Arett Sales Corp. , 246 Conn. 563, 571, 717 A.2d 215 (1998). It is important, before conducting a duty analysis, to note that the common law is not static but dynamic, and often evolves to adapt to the changing conditions of society. See Goodrich v. Waterbury Republican-American, Inc. , 188 Conn. 107, 127, 448 A.2d 1317 (1982) (recognizing for first time action for invasion of privacy in Connecticut). Thus, when a plaintiff can show that the two requirements for the test of the existence of a legal duty of care have been met, our courts may recognize that the plaintiff can bring an action for negligence against the defendant. See Munn v. Hotchkiss School , supra, 326 Conn. at 548-60, 165 A.3d 1167 (recognizing that school had legal duty to warn students about or protect students against risk of serious insect-borne disease when organizing trip abroad); Monk v. Temple George Associates, LLC , 273 Conn. 108, 114-22, 869 A.2d 179 (2005) (parking lot owner owed reasonable duty to adequately light and monitor parking lot to nightclub patron who parked there). I FORESEEABILITY The plaintiff argues that it was readily foreseeable that, if the defendant failed to timely obtain Medicaid benefits for Johnson, the plaintiff would suffer harm as a result because it would not be reimbursed for the cost of Johnson's care. The plaintiff contends that the entire purpose of its petition to the Probate Court was to assure access to Medicaid benefits for Johnson and that the defendant knew that Johnson did not have enough assets to pay for his care and was incurring debt to it at a rate of $370 per day. The plaintiff also contends that the defendant was the only person who had control over Johnson's estate and, consequently, the authority to obtain Medicaid benefits for him. The defendant argues, however, that the harm suffered by the plaintiff was not foreseeable because the defendant's only fiduciary responsibilities were to Johnson and not his creditors. Specifically, the defendant argues that he "could not have foreseen any harm to the [p]laintiff because [he] did not enter into any agreement, contract, or relationship with the [p]laintiff regarding [Johnson's] eligibility for [Medicaid] benefits." The defendant also disagrees with the plaintiff's assertion that the purpose of its petition to the Probate Court was to have a conservator appointed to help Johnson obtain Medicaid benefits. "[F]oreseeability that harm may result if [a duty of care] is not exercised . is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result ." Jarmie v. Troncale , supra, 306 Conn. at 590, 50 A.3d 802. Ordinarily, "whether the injury is reasonably foreseeable . gives rise to a question of fact for the finder of fact . foreseeability becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Citation omitted; internal quotation marks omitted.) Ruiz v. Victory Properties, LLC , 315 Conn. 320, 330, 107 A.3d 381 (2015). We conclude that the harm suffered by the plaintiff in the present case was foreseeable as a matter of law. The plaintiff petitioned the Probate Court to appoint an involuntary conservator to Johnson to help him manage his estate and noted in its petition that Johnson needed help completing a Medicaid application. Once appointed as Johnson's conservator, the defendant alone had access and control over Johnson's assets, income and property. Furthermore, it is undisputed that, when the defendant was appointed as conservator of Johnson's estate, Johnson already had accrued several thousands of dollars of debt to the plaintiff. It is also undisputed that, even though the defendant tendered the $48,000 in proceeds from the sale of Johnson's house to the plaintiff and began paying over his social security checks, Johnson still was unable to pay the $370 per day required to cover the cost of his care and, therefore, continued to accrue debt to the plaintiff. Having disposed of Johnson's assets and being familiar with his finances, the defendant would have been acutely aware of these facts and that his failure to obtain Medicaid benefits for Johnson would result in Johnson being unable to pay for the necessary care rendered to him by the plaintiff. The defendant argues that the harm to the plaintiff was not foreseeable because the defendant was not in privity with the plaintiff. Our Supreme Court has determined, however, that a defendant may owe a duty of care to third parties under certain circumstances. See Gazo v. Stamford , 255 Conn. 245, 249-51, 765 A.2d 505 (2001) (defendant who contracted with Chase Bank to remove snow from sidewalk in front of building owed duty to third-party plaintiff who was injured as result of defendant's failure to properly remove snow and ice; relationship between defendant's alleged negligence and plaintiff's injury was direct and well within scope of foreseeability); Lombard v. Edward J. Peters, Jr., P.C. , 252 Conn. 623, 632-33, 749 A.2d 630 (2000) (defendant, acting as committee for foreclosure sale, owed plaintiff condominium owners duty to use reasonable care to properly identify property included in foreclosure sale; plaintiffs could properly maintain negligence action against defendant for misidentifying their garage as part of foreclosure property); Coburn v. Lenox Homes, Inc. , 173 Conn. 567, 574, 378 A.2d 599 (1977) (privity not required to bring negligence action; subsequent purchasers of home could bring negligence action against corporation that constructed it). Thus, the plaintiff need not show that it was in privity with the defendant for us to determine that the harm suffered by the plaintiff was foreseeable. Rather, what is important is whether an ordinary person, standing in the shoes of the defendant, would or should have known that the harm of the general nature suffered by the plaintiff was likely to result. See Lombard v. Edward J. Peters, Jr., P.C. , supra, 252 Conn. at 633, 749 A.2d 630. Thus, considering that (1) the plaintiff petitioned the Probate Court to have a conservator appointed, (2) the petition specifically alleged that Johnson needed assistance completing his Medicaid application, (3) the defendant knew of Johnson's growing debt to the plaintiff and that Johnson could not pay the plaintiff for the cost of his care, and (4) the defendant had the exclusive authority to access and manage Johnson's finances, we conclude, as a matter of law, that the harm to the plaintiff was foreseeable. II PUBLIC POLICY In light of our conclusion that the harm suffered by the plaintiff was reasonably foreseeable as a matter of law, we next turn to consider whether public policy supports recognizing that the defendant owed to the plaintiff a duty to use care in the administration and management of Johnson's estate, which included timely completing Johnson's application for Medicaid benefits. Indeed, "[a] simple conclusion that the harm to the plaintiff was foreseeable . cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed.... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself . but is only an expression of the sum total of those considerations of policy [that] lead the law to say that the plaintiff is entitled to protection.... The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Internal quotation marks omitted.) Munn v. Hotchkiss School , supra, 326 Conn. at 549-50, 165 A.3d 1167. "[I]n considering whether public policy suggests the imposition of a duty, we . consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." (Internal quotation marks omitted.) Id., at 550, 165 A.3d 1167. "[This] totality of the circumstances rule . is most consistent with the public policy goals of our legal system, as well as the general tenor of our [tort] jurisprudence." (Internal quotation marks omitted.) Ruiz v. Victory Properties, LLC , supra, 315 Conn. at 337, 107 A.3d 381. We also note the three fundamental purposes of our tort compensation system, which are the "compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct ." (Internal quotation marks omitted.) Lodge v. Arett Sales Corp. , supra, 246 Conn. at 578-79, 717 A.2d 215. A We begin by considering the normal expectations of the participants in the activity under review. The plaintiff argues that, although it "certainly did not expect to recover the debt which accrued prior to [the defendant's] appointment, [it] did expect that funds were going to be provided and made available for . Johnson's care, and [that the defendant] would obtain funds for his support by way of the Medicaid program" because it "set out to [have] appoint[ed] a conservator for that purpose." Before we begin our analysis, we note that our statutes themselves are a source of public policy, and may militate in favor of recognizing a common-law duty of care when doing so advances the general policies and objectives of the statute. See Williams Ford, Inc. v. Hartford Courant Co. , 232 Conn. 559, 580-82, 657 A.2d 212 (1995). Thus, in determining the normal expectations of the parties, our appellate courts have often looked to "Connecticut's existing body of common law and statutory law relating to th[e] issue. See, e.g., [ Ruiz v. Victory Properties , supra, 315 Conn. at 337-38, 107 A.3d 381 ] (considering existing common-law principles and statutory requirements in determining whether apartment building landlord owed duty to keep yard clear of debris that could be thrown by children); Greenwald v. Van Handel , 311 Conn. 370, 376-77, 88 A.3d 467 (2014) (noting [our Supreme Court's] recognition in equity and contractual contexts of certain 'common-law maxims' before considering whether to extend them to professional negligence claim against therapist arising from plaintiff's arrest for possession of child pornography); Jarmie v. Troncale , supra, 306 Conn. at 603-605, 50 A.3d 802 (reviewing Connecticut medical malpractice case law and statutes governing health-care providers in determining whether physician owed plaintiff, who was injured in automobile accident with physician's patient, common-law duty to inform patient of driving risks associated with her medical condition)." Lawrence v. O & G Industries, Inc. , 319 Conn. 641, 651, 126 A.3d 569 (2015). In considering whether the plaintiff reasonably could have expected that the defendant would have obtained available funds for the cost of Johnson's care, then, we first look to the statutory duties of a conservator of an estate, which are outlined in § 45a-655(a). Section 45a-655(a) provides that the defendant had a statutory duty to use Johnson's estate to support him as well as pay his debts, which, in Johnson's case, included his significant and growing debt to the plaintiff. Moreover, § 45a-655(d) provides, in relevant part, that, "[i]n the case of any person receiving public assistance, state-administered general assistance or Medicaid, the conservator of the estate shall apply toward the cost of care such person any assets exceeding limits on assets set by statute or regulation adopted by the Commissioner of Social Services...." In the present case, Johnson did not have enough assets in his estate to pay the plaintiff for the cost of his care. Because Johnson was unable to pay for his care, the only way that the defendant could use Johnson's estate to support him and to pay his debt to the plaintiff would be to spend down Johnson's remaining assets such that he was eligible for Medicaid and, thereafter, timely complete Johnson's application for Medicaid benefits. See Ross v. Giardi , 237 Conn. 550, 555-74, 680 A.3d 113, 680 A.2d 113 (1996) (discussing applicability of resource spend down methodology to Medicaid benefits). The defendant clearly had the authority, pursuant to statute, to take such actions. Section 45a-655(a) grants the conservator of the estate access to the ward's assets and financial records and the authority to manage his estate. Furthermore, § 45a-655(d) contemplates that the conservator of the ward's estate will assist the ward in qualifying for Medicaid benefits, specifically. It is a logical extension of the plain language of the statute, then, to conclude that the parties could expect that the defendant would timely submit Johnson's application for Medicaid benefits in the event that he was unable to pay the plaintiff for the cost of his care. In addition to the statutory duties of a conservator of an estate outlined in § 45a-655(a), the Connecticut Standards of Practice for Conservators (2018), standard 17 I explicitly provides, in relevant part, that "[w]ith the proper authority and within the resources available to the conserved person, the conservator of the estate shall have the following duties . E. The conservator shall seek public and insurance benefits that are beneficial for the conserved person ." (Emphasis added.) Standard 17 I E suggests that it is widely understood by conservators in Connecticut that they are able to-and, in fact, have a duty to-seek public assistance for their ward when necessary. Moreover, we also find compelling in evaluating the normal expectation of the parties the fact that the plaintiff's petition for involuntary conservatorship specifically noted that Johnson needed help completing his application for Medicaid benefits. This allegation put the defendant on notice that (1) one of the purposes of his appointment was to help Johnson obtain Medicaid benefits, and (2) the plaintiff, specifically, would incur loss if the defendant failed to do so. It is reasonable, then, considering the defendant's statutory duties under § 45a-655(a) and the authority granted in him thereunder, as well as the fact that the plaintiff's petition for a conservator specifically mentioned that Johnson needed help obtaining Medicaid benefits, that the plaintiff would have expected the defendant, as conservator of Johnson's estate, to take steps necessary to pay the portion of Johnson's debt to the plaintiff that accrued after he was appointed and to secure any available public funding that would help pay for the cost of his care. See Jewish Home , supra, 257 Conn. at 540-42, 778 A.2d 93 (plaintiff nursing home correctly expected that conservator of patient's estate and person would timely secure payment for cost of patient's care considering conservator's statutory duties); see also Jarmie v. Troncale , supra, 306 Conn. at 604, 50 A.3d 802 (plaintiff could not expect that physician owed general public duty to warn patient that her condition might affect her ability to drive because no statute or regulation imposed such duty). The defendant argues, however, that in the event that he failed to timely submit Johnson's application for Medicaid benefits, he could not have expected that he would be held personally liable to the plaintiff for his failure to do so. Rather, he contends that, because there was no direct relationship between the plaintiff and the defendant, it was the normal expectation of the parties "that any claim by the [p]laintiff . for money owed by the ward for the [p]laintiff's services would be brought against the ward's estate and not the [d]efendant." We disagree with the defendant. At the outset, we note that there is a fundamental inconsistency in applying the defendant's argument to our inquiry regarding the normal expectations of the parties. The sole issue in this case is whether the defendant owed the plaintiff a duty to use reasonable care in timely securing public assistance to pay for the services rendered to Johnson by the plaintiff. If we do agree with the plaintiff that the defendant owed it a duty of care and, therefore, that it properly could bring a negligence action against him, it would be the first time that this notion was expressly recognized by either of our appellate courts. Because of this, our inquiry regarding the normal expectations of the parties cannot begin and end with the question of whether our appellate courts have considered previously the legal viability of this exact action. To conclude as such would render our inquiry pointless, as we only consider the normal expectations of the parties when we ask for the first time whether the defendant in a particular case owed the plaintiff a duty of care. Presumably, then, every time a plaintiff brought a negligence action against a defendant alleging breach of a duty that has not been explicitly recognized by our appellate courts, the defendant could simply make an argument that it was not the normal expectation of the parties that the defendant could be held personally liable to the plaintiff for his or her negligence. We must focus, instead, not on whether the defendant could have expected that the plaintiff could bring a negligence action against him, specifically, but on the broader inquiry of whether the defendant could have expected that he would be held liable to a nursing home, in some way, for the type of misconduct alleged in the present case. Our Supreme Court's decision in Jewish Home , supra, 257 Conn. at 531, 778 A.2d 93 is instructive on this point. Our Supreme Court concluded in that case that a conservator could be held liable to a nursing home, specifically, for the losses it incurred as a result of the conservator's failure to timely secure Medicaid benefits for his ward. Id., at 539-44, 778 A.2d 93. It is true that the nursing home in Jewish Home brought an action on a probate bond, rather than an action in negligence. What is significant for the purpose of our analysis, however, is that our Supreme Court recognized that a conservator could be held liable (1) to a nursing home, and (2) for the exact type of misconduct alleged in the present case. The fact that the plaintiff in the present case and the plaintiff in Jewish Home are both nursing homes is significant because nursing homes are unique and differ from other creditors of an estate. This difference is primarily due to the critical nature of the services they provide to the ward-namely, shelter, food, and care to a vulnerable segment of our population. Moreover, nursing homes are also unique because, unlike other service providers, they are very limited in their ability to refuse to provide or discontinue service to individuals who are indigent. Indeed, Connecticut by statute has imposed strict rules that govern the circumstances under which a nursing home can (1) refuse to admit an indigent patient, or (2) involuntarily discharge a patient. General Statutes § 19a-533(b) provides in relevant part: "A nursing home which receives payment from the state for rendering care to indigent persons shall: (1) Be prohibited from discriminating against indigent persons who apply for admission to such facility on the basis of source of payment . Except as otherwise provided by law, all applicants for admission to such facility shall be admitted in the order in which such applicants apply for admission...." (Emphasis added.) Subsection (b)(3) of § 19a-533 further prohibits nursing homes from "requiring that an indigent person pay any sum of money or furnish any other consideration, including but not limited to the furnishing of an agreement by the relative, conservator or other responsible party of an indigent person which obligates such party to pay for care rendered to an indigent person as a condition for admission of such indigent person ." General Statutes § 19a-535 governs the circumstances under which a nursing home may involuntarily discharge a patient. Section 19a-535(b) provides, in relevant part, that "[a] facility shall not transfer or discharge a resident from the facility except to meet the welfare of the resident which cannot be met in the facility, or unless the resident no longer needs the services of the facility due to improved health, the facility is required to transfer the resident pursuant to section 17b-359 or 17b-360, or the health or safety of individuals in the facility is endangered, or in the case of a self-pay resident , for the resident's nonpayment or arrearage of more than fifteen days of the facility room rate, or the facility ceases to operate...." (Emphasis added.) Section 19a-535(a)(5) provides, in relevant part, that a "self-pay resident means a resident who is not receiving state or municipal assistance to pay for the cost of care at a facility , but shall not include a resident who has filed an application with the Department of Social Services for Medicaid coverage for facility care but has not received an eligibility determination from the department on such application, provided that the resident has timely responded to requests by the department for information that is necessary to make such determination ." (Emphasis added; internal quotation marks omitted.) Thus, pursuant to § 19a-533 and 19a-535, a nursing home may not refuse to admit a patient simply because he or she is indigent, nor may a nursing home discharge a patient who is reliant on Medicaid or in the process of obtaining Medicaid benefits but otherwise unable to pay for the cost of his or her care. In other words, the nursing home's hands are metaphorically tied-in the case that a patient is indigent and unable to pay for the cost of care, the nursing home itself cannot apply on behalf of the patient for public assistance yet must continue to provide services to the patient at its own expense. This predicament highlights just how critical it is to the nursing home that a conservator, once appointed, performs his or her duties in a timely and attentive fashion. Moreover, with respect to the defendant's argument that he could not expect that he would be held liable for the plaintiff's loss because no probate bond was issued, we reiterate that the type of misconduct alleged by the plaintiff against the defendant in the present case is almost identical to that complained of by the plaintiff in Jewish Home , supra, 257 Conn. at 535, 543-44, 778 A.2d 93. Our Supreme Court concluded in Jewish Home that the plaintiff nursing home could maintain an action on a probate bond against a conservator for his failure to timely complete an application for Medicaid benefits on behalf of his ward. Id., at 540-44, 778 A.2d 93. Thus, the defendant should have at least been on notice that his failure to submit timely Johnson's application for Medicaid benefits could give rise to some sort of liability. Indeed, it would be unreasonable for the defendant to believe that the plaintiff would be left without a remedy simply because no probate bond was obtained. Finally, the defendant argues that the parties could not have expected that he would be held personally liable to the plaintiff for his failure to timely submit Johnson's application for Medicaid benefits because he was acting as an agent of the Probate Court and thus is entitled to quasi-judicial immunity. A conservator is entitled to quasi-judicial immunity, however, only when his or her actions are expressly authorized or approved by the Probate Court. See Gross v. Rell , 304 Conn. 234, 251-52, 40 A.3d 240 (2012). "[W]hen the Probate Court has expressly authorized or approved specific conduct by the conservator, the conservator is not acting on behalf of the conservatee, but as an agent of the Probate Court." Gross v. Rell , supra, 304 Conn. at 251, 40 A.3d 240. Thus, "when the conservator has obtained the authorization or approval of the Probate Court for his or her actions on behalf of the conservatee's estate, the conservator cannot be held personally liable." Id., at 251-52, 40 A.3d 240. In cases where "the conservator's acts are not authorized or approved by the Probate Court, however . [there is] no reason to depart from the common-law rule that the conservator of the estate is not acting as the agent of that court, but as the fiduciary of the conservatee, and, as such, may be held personally liable." Id., at 253-54, 40 A.3d 240. "A conservator is a fiduciary and acts at his peril and on his own personal responsibility unless and until his actions in the management of the ward's estate are approved by the Probate Court." (Emphasis added; internal quotation marks omitted.) Zanoni v. Hudon , 48 Conn. App. 32, 37, 708 A.2d 222, cert. denied, 244 Conn. 928, 711 A.2d 730 (1998) ; see also Elmendorf v. Poprocki , 155 Conn. 115, 120, 230 A.2d 1 (1967) ("[e]ven if it was proper and necessary for the conservatrix to utilize the plaintiff's services in the management of her ward's estate, the liability for the value of the services rested on her personally, until they were subsequently approved by the Probate Court"). The defendant has failed to show that any of his actions with respect to his failure to obtain Medicaid benefits for Johnson were specifically ratified by the Probate Court. In other words, the defendant has not directed our attention to any order of the Probate Court that excused his obligation to timely submit Johnson's application for Medicaid benefits. Rather, in support of his argument that he is entitled to quasi-judicial immunity, the defendant simply makes the conclusory legal assertion that "[i]t was the expectation of the parties that [he] was acting with quasi-judicial immunity as he was performing his duties pursuant to his Probate Court appointment as conservator." Because our case law provides that a conservator is entitled to quasi-judicial immunity only if the specific act or acts at issue were approved by the court, the defendant's failure to show that even one act of his was ratified by the court is fatal to his argument. See Gross v. Rell , supra, 304 Conn. at 256-57, 40 A.3d 240 (rejecting claims that conservators are entitled to quasi-judicial immunity even when acts are not authorized or approved by Probate Court simply because statutory safeguards exist to ensure proper behavior by conservator and that conservators, like guardian ad litems, are entitled to quasi-judicial immunity for discretionary acts); see also Elmendorf v. Poprocki , supra, 155 Conn. at 119, 230 A.2d 1 (conservator was powerless to sell ward's estate without prior express authorization of Probate Court); compare Zanoni v. Hudon , supra, 48 Conn. App. at 36-, 708 A.2d 222 (conservator was not individually liable for breach of contract because Probate Court approved contract of sale and conservator, therefore, was acting as agent of Probate Court). We conclude, therefore, that the parties reasonably could have expected that the defendant (1) would take the steps necessary to secure payment for the cost of Johnson's care, which necessarily included timely completing Johnson's application for Medicaid benefits, and (2) could be held liable to the plaintiff if he failed to do so. The first factor of the public policy prong of our duty analysis therefore weighs heavily in support of the plaintiff's claim that the defendant owed it a duty of care. B Next, because they are analytically related, we consider together the second and third factors, namely, the public policy of encouraging participation in the activity, while weighing the safety of the participants, and the avoidance of increased litigation. See Lawrence v. O & G Industries, Inc. , supra, 319 Conn. at 658, 126 A.3d 569. With respect to these two factors, the plaintiff argues that, if we decline to recognize that a conservator can be held personally liable to it for his or her breach of statutory duties, it would lessen any incentive on conservators to perform their duties efficiently and adequately, and thus undermine the purpose of allowing nursing homes to petition to have a conservator appointed in the first place. The plaintiff further argues that, with respect to the consideration of increased litigation, any concern that recognizing a duty in this context would increase significantly a conservator's exposure is misplaced because a conservator already has certain statutory duties that require him or her to timely secure funding for the ward's care. The defendant argues, however, that recognizing a duty in this context would chill, rather than encourage, individuals to take on the role of conservator because it would increase a conservator's liability. We recognize that, with respect to the third factor which contemplates the concern of increased litigation, "[i]t is [often] easy to fathom how affirmatively imposing a duty on the defendants . could encourage similarly situated future plaintiffs to litigate on the same grounds; that is true anytime a court establishes a potential ground for recovery." (Emphasis in original.) Monk v. Temple George Associates , LLC, supra, 273 Conn. at 120, 869 A.2d 179. Because of this, in considering these two factors, our Supreme Court at times has employed a balancing test to determine whether, in the event that a duty of care is recognized by the court, the advantages of encouraging participation in the activity under review outweigh the disadvantages of the potential increase in litigation. See id., at 119-120, 869 A.2d 179 (concluding that desirability of promoting local business if duty was recognized out-weighed relatively small potential increase in litigation); see also Lawrence v. O & G Industries, Inc. , supra, 319 Conn. at 658-61, 126 A.3d 569 (concluding that recognition of duty would cause increase in litigation with no corresponding increase in safety on industrial and construction work sites.); Jarmie v. Troncale , supra, 306 Conn. at 613-14, 50 A.3d 802 ("expanding the duty of a health care provider to an unforeseen victim of a patient's unsafe driving [w]ould interfere significantly with a health care provider's discretion to treat and counsel patients in accordance with an assessment of the patient's individual needs," while inevitably increasing number of actions against health care providers). Thus, the relevant inquiry in the present case is whether recognizing a duty in this context would further encourage conservators to use reasonable care in their administration of the ward's estate and, if so, whether the advantages of encouraging such behavior would outweigh the negative effects of a corresponding increase in litigation. Our statutory scheme-or lack thereof-with respect to conservator liability has created a liability "loop-hole." Conservators are able to escape liability in cases in which no probate bond is issued even if they act negligently in carrying out their duties. As discussed in part II A of this opinion, § 45a-655(a) imposes certain statutory duties on conservators. Interestingly enough, however, our statutes do not provide any corresponding statutory cause of action to third parties who are harmed by a conservator's negligent failure to perform his or her duties when no probate bond is issued. Thus, it is likely that recognizing that a conservator can be held liable for his or her negligence even without a probate bond would incentivize conservators to carry out their duties in a timely manner and with due care, whereas someone else who is already exposed to this type of liability would not be so incentivized. See Lawrence v. O & G Industries, Inc. , supra, 319 Conn. at 659, 126 A.3d 569 ("[W]e observe that expanding the defendants' liability in this industrial accident context to include the purely economic damages suffered by other workers on site appears likely to increase the pool of potential claimants greatly. At the same time, the recognition of such a duty fails to provide a corresponding increase in safety, given that companies like the defendants are subject to extensive state and federal regulation, and already may be held civilly liable to a wide variety of parties who may suffer personal injury or property damage as a result of their negligence in the industrial or construction context." [Footnote omitted.] ). Furthermore, we do not agree with the defendant that allowing the plaintiff to bring a negligence action against him would discourage individuals from accepting the role of conservator of the estate. As we discussed in part II A of this opinion, the conservator of the estate already has a duty to pay their ward's debt and to use the assets of the estate to support the ward, which necessarily includes timely securing any available public assistance if the ward lives in a nursing home and is unable to pay for the cost of his or her care. See General Statutes § 45a-655(a) ; Jewish Home , supra, 257 Conn. at 538-44, 778 A.2d 93 ; Office of the Probate Court Administrator, Connecticut Standards of Practice for Conservators (2018), standard 17 I E, available at http://www.ctprobate.gov/Documents/Connecticut% 20Standards% 20of20Practice% 20for% 20Conservators.pdf (last visited October 3, 2018). We are therefore not imposing any additional duties on the conservator of the estate that he or she is not already required to perform. See Gazo v. Stamford , supra, 255 Conn. at 254, 765 A.2d 505 (rejecting snow removal company's public policy argument that recognizing duty to third parties "would be too burdensome because independent contractors would be liable to innumerable third parties, thereby creating a disincentive to contractors from doing this kind of business" and concluding that "[a]lthough we agree that contractors may be liable to parties whom they could not have necessarily identified specifically when entering into the original contract, they always have had a duty to perform their work in a nonnegligent manner, and our conclusion does no more than to hold contractors liable to those parties foreseeably injured by their negligence"). The defendant also argues that recognizing a duty in this context would increase litigation. Although we agree that recognizing such a duty would expose conservators to a new type of liability, we conclude that any corresponding increase in litigation would be minimal and not enough to outweigh the advantages of encouraging conservators to perform their obligations with due care. First, there likely would be no need to bring an action against a conservator in his or her personal capacity in cases where a probate bond was issued because, in those cases, an action could be brought on the bond. Second, the nature of the relationship between a conservator and a nursing home is not normally contentious or fertile ground for litigation in the first instance. See Gross v. Rell , supra, 304 Conn. at 258, 40 A.3d 240 (Our Supreme Court considered whether conservators, like guardians ad litem, should be entitled to quasi-judicial immunity for discretionary acts and concluded: "The role of a guardian ad litem for children in the inherently hostile setting of a marital dissolution proceeding . is distinguishable . from the role of a court-appointed conservator. It is all but inevitable that, in a dissolution proceeding, at least one of the parties will be disgruntled by the guardian ad litem's conduct towards the children and his or her recommendations concerning their best interests. Accordingly, without immunity, the guardians would act like litigation lightning rods.... In contrast, it is not all but inevitable that conservators will act as litigation lighting rods for third party claims because there is no such inherent conflict between the conservatee's interests and the interests of others." [Citation omitted; emphasis added; internal quotation marks omitted.] ). Finally, with respect to the "safety" of the participants of the activity, we find it particularly worrisome that, if we decline to recognize that the defendant owed the plaintiff a duty in the present case, the plaintiff and other nursing homes similarly situated will be left without a remedy that would allow them to recover losses sustained as a result of a conservator's negligence in cases where no probate bond is issued. The defendant argues that the plaintiff could have (1) requested the issuance of the probate bond itself, or (2) pursued a claim directly against Johnson's estate. We disagree with the defendant that the pursuit of either of these alternatives would suffice to make the plaintiff whole. We find the defendant's suggestion that the nursing home that houses the ward, rather than the conservator of that ward's estate, should be required to ask the court to issue a probate bond to be unfair and unrealistic, as it would require a nursing home to monitor probate proceedings to ensure that a probate bond has been issued for each of its patients for which a conservator has been appointed. Imposing this obligation seems unnecessary considering that the issuance of a probate bond is already mandated by statute in certain circumstances. See General Statutes § 45a-139(c) ; see also Probate Court Rules § 35.1 (b). Moreover, this potential avenue of recovery exists only if a nursing home acts preemptively on an assumption that a conservator will act negligently which, once again, seems unnecessary considering that a conservator already has certain statutory duties that require the conservator to pay the ward's debts and to use the estate to support the ward. See General Statutes § 45a-655(a). Pursuing a direct claim against a ward's estate would likewise be a fruitless endeavor for the plaintiff and other similarly situated nursing homes that encounter this issue because, typically, the ward's estate is insolvent. To obtain Medicaid benefits, an applicant must have less than $1600 in assets. Furthermore, because the cost of care at a nursing home is so expensive, even those individuals that have a considerable amount of assets in their estate likely will not be able to pay for the long-term costs of care. In those instances, the conservator should "spend down" the ward's assets so that the ward becomes eligible to receive Medicaid benefits, meaning that the ward's estate becomes insolvent for all practical purposes. See Ross v. Giardi , supra, 237 Conn. at 555-74, 680 A.2d 113. Therefore, pursuing a third-party claim against the estate would often be fruitless. Having considered all the relevant concerns of the parties, we conclude that the benefits of encouraging conservators to carry out their duties with care and preventing financial harm outweigh any corresponding minimal increase in litigation. Thus, the second and third factors support the plaintiff's claim that the defendant owed it a duty of care. C The fourth and final factor that we consider in conducting our public policy analysis is the law of other jurisdictions on this issue. See Jarmie v. Troncale , supra, 306 Conn. at 615, 50 A.3d 802. The plaintiff and the defendant both agree, and our independent research confirms, that no other reported decisions from other jurisdictions have decided the exact issue in this case, i.e., whether a conservator can be held personally liable to a nursing home facility or other third-party creditor, under a common-law theory of negligence, for failure to use care in performing his or her duties. Several of our sister states, however, have enacted legislation that allows a third party to bring a statutory cause of action against a conservator if the conservator commits a tort in the course of the administration of the estate or the conservator otherwise is personally at fault for the party's loss. See Ala. Code § 26-2A-157(b) (1975) ("[t]he conservator is personally liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate if personally at fault"); Ariz. Rev. Stat. Ann. (1997) § 14-5429(B) (same) ; Colo. Rev. Stat. § 15-1.5-112(2)(b) (1999) (custodial trustee liable to third parties for obligations arising from control of custodial trust property or for tort committed in course of administration of custodial trust where custodial trustee is personally at fault); D.C. Code § 21-2074(b) (2001) ("[t]he conservator is personally liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate . if personally at fault"); Haw. Rev. Stat. § 560:5-430(b) (2004) (same); Idaho Code Ann. § 68-1312(2)(b) (1989); Mass. Gen. Laws ch. 190b, § 5-428(b) (2009) (conservator can be held personally liable if personally at fault for obligations arising from ownership or control of property of estate or torts committed in course of administration of estate); Minn. Stat. § 524.5-430(b) (2003) ; Mo. Rev. Stat. § 475.132(2) (1983) ; N.J. Stat. Ann. § 3b:13A-29 (1983) ; N.C. Gen. Stat. § 33B-12(b)(2) (1995) ; S.C. Code Ann. § 62-5-429(b) (1976) ; W. Va. Code § 44A-3-14(c) (2000). The recognition by so many of our sister states of this statutory cause of action is significant with respect to our public policy analysis. Statutes do not exist in a vacuum, and "it is well established that statutes are a useful source of policy for common-law adjudication, particularly when there is a close relationship between the statutory and common-law subject matters." (Internal quotation marks omitted.) Hopkins v. O'Connor , 282 Conn. 821, 844, 925 A.2d 1030 (2007) (recognizing need for consistency between statutory scheme and common law and declining to extend common-law absolute immunity to officer's actions where statute imposed criminal liability for same actions); see also DeMaria v. DeMaria , 247 Conn. 715, 721, 724 A.2d 1088 (1999) (considering statutory definition of "cohabitation" in determining meaning of that term as used in dissolution judgment; statute was useful source of common-law policy and could be used as definitional source); Williams Ford, Inc. v. Hartford Courant Co. , supra, 232 Conn. at 580-82, 657 A.2d 212 (concluding that policy underlying statute should apply to negligent misrepresentation as matter of common law). Indeed, statutes "are now central to the law in the courts, and judicial law-making must take statutes into account virtually all of the time ." (Internal quotation marks omitted.) Hopkins v. O'Connor , supra, at 845, 925 A.2d 1030. We can therefore glean from the fact that so many of our sister states have recognized this statutory cause of action that the legislatures of those states believed that third parties should have a right to recover for harm caused to them by a conservator's negligence. The defendant argues that the fact that no other states have considered whether a third party can bring an action against a conservator under a common-law theory of negligence weighs against recognizing that the defendant owed the plaintiff a duty of care. The fact that those states allow a third party to bring a statutory, rather than a common-law, cause of action is of no consequence to our consideration of whether public policy favors recognizing a duty of care. Instead, the relevant observation for purposes of the present analysis is that other jurisdictions recognize that principles of fairness weigh in favor of providing a third party with a remedy in the event that a conservator acts negligently and, as a result of that negligence, causes a third party to suffer harm. The fourth prong of our public policy analysis therefore also supports the plaintiff's claim that the defendant owed it a duty of care in the present case. III CONCLUSION We therefore conclude, having considered whether the harm suffered by the plaintiff was foreseeable and all relevant public policy concerns, that the defendant owed the plaintiff a duty to use reasonable care in performing his duties as conservator of Johnson's estate, which necessarily included timely submitting Johnson's application for Medicaid benefits in order to obtain available public assistance funds for the cost of Johnson's necessary and critical care provided by the plaintiff. The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion. In this opinion the other judges concurred. General Statutes (Rev. to 2013) § 45a-648 provided, in relevant part, that "[a]n application for involuntary representation may be filed by any person alleging that a respondent is incapable of managing his or her affairs or incapable of caring for himself or herself and stating the reasons for the alleged incapability...." The plaintiff does not seek to recover the debt accrued to it by Johnson prior to the defendant's appointment as conservator of Johnson's estate. See Office of the Probate Court Administrator, Connecticut Standards of Practice for Conservators (2018), available at http://www.ctprobate.gov/Documents/Connecticut% 20Standards% 20of20Practice% 20for% 20Conservators.pdf(last visited October 3,2018). Unlike the defendant in Jewish Home , who was appointed as conservator of the ward's estate and person, the defendant in the present case was appointed conservator of Johnson's estate only. Our Supreme Court in Jewish Home relied on both § 45a-655(a), which sets forth the duties of a conservator of the estate, and § 45a-656(a), which sets forth the duties of a conservator of the person, in concluding that Cantore owed the plaintiff nursing home a duty to timely complete his ward's application for Medicaid benefits. Id., at 539-43, 778 A.2d 93. Section 45a-656 (c) provides that the conservator of the person shall carry out his or her duties "either through the conserved person's own estate or through private or public assistance." At the time Jewish Home was decided, this language was included in subsection (a) of § 45a-656. Jewish Home , supra, 257 Conn. at 540, 778 A.2d 93. For the reasons set forth in part II A of this opinion, we conclude that the fact that § 45a-656 references public assistance in this way does not undermine our ultimate determination that the conservator of the estate has a duty to assist the ward in applying for and obtaining public assistance. The defendant also cites Krawczyk v. Stingle , 208 Conn. 239, 543 A.2d 733 (1988), seemingly for the proposition that Connecticut's statutory scheme does not warrant holding conservators liable to third-party creditors of the ward. Our Supreme Court in Krawczyk considered whether an attorney could be held liable to the intended beneficiaries of his client's estate for his failure to arrange for timely execution of the client's estate planning documents. Id., at 240, 543 A.2d 733. The court concluded that the defendant attorney could not be held liable to the beneficiaries because he did not owe them a duty of care. Id., at 245-48, 543 A.2d 733. In its analysis of this issue, our Supreme Court noted that "[d]etermining when attorneys should be held liable to parties with whom they are not in privity is a question of public policy." Id., at 245, 543 A.2d 733. The court then went on to explain that, in addressing whether an attorney should be held liable to a third party, "courts have looked principally to whether the primary or direct purpose of the transaction was to benefit the third party.... Additional factors considered have included the foreseeability of harm, the proximity of the injury to the conduct complained of, the policy of preventing future harm and the burden on the legal profession that would result from the imposition of liability." (Citations omitted.) Id., at 245-46, 543 A.2d 733. In its analysis, the court placed significant weight on the fact that "[a] central dimension of the attorney-client relationship is the attorney's duty of [e]ntire devotion to the interest of the client.... This obligation would be undermined were an attorney to be held liable to third parties if, due to the attorney's delay, the testator [client] did not have an opportunity to execute estate planning documents prior to death. Imposition of liability would create an incentive for an attorney to exert pressure on a client to complete and execute estate planning documents summarily. Fear of liability to potential third party beneficiaries would contravene the attorney's primary responsibility to ensure that the proposed estate plan effectuate[d] the client's wishes ." (Citations omitted; internal quotation marks omitted.) Id., at 246, 543 A.2d 733. Krawczyk is easily distinguishable for two reasons. First, the analysis in that case is controlled by the unique nature of the relationship between an attorney and his or her client, which is characterized by the attorney's duty of steadfast devotion to the interests of the client. See id. ; see also Rules of Professional Conduct 1.7. Second, the imposition of liability here would not undermine the relationship between a conservator and the ward in the same way-in fact, doing so would arguably advance that relationship, because it would encourage conservators to carry out their duties to the ward with due care. See part II B of this opinion. General Statutes § 19a-533(a) defines a "nursing home" in relevant part as "any chronic and convalescent facility or any rest home with nursing supervision . which has a provider agreement with the state to provide services to recipients of funds obtained through Title XIX of the Social Security Amendments of 1965 ." We also note that, historically, many nursing homes have struggled to remain solvent. See General Statutes § 17b-339 (establishing nursing home financial advisory committee to "examine the financial solvency of nursing homes on an ongoing basis and to support the Departments of Social Services and Public Health in their mission to provide oversight to the nursing home industry on issues concerning the financial solvency of and quality of care provided by nursing homes"); see also Conn. Joint Standing Committee Hearings, Public Health, Pt. 10, 2017 Sess., p. 4780 (president and chief executive officer of Connecticut Association of Health Care Facilities noting that, in many larger urban nursing home facilities, percentage of Medicaid residents is close to 70 percent and that industry is in period of financial instability); Conn. Joint Standing Committee Hearings, Public Health, Pt. 6, 2009 Sess., p. 1763-65 (executive vice president of Connecticut Association of Health Care Facilities discussing in relation to Senate Bill No. 845, titled "An Act Concerning Oversight of Nursing Homes," insolvent nursing homes in state). Generally, our cases that have applied this test have referred to the "safety of the participants" because those cases involve activities that typically result in physical rather than financial harm. See Lawrence v. O & G Industries, Inc. , supra, 319 Conn. at 659, 126 A.3d 569. That phraseology is somewhat inapt in circumstances, such as here, involving only allegations of financial harm. Thus, when we address the "safety" of the participants, we refer to the risk of financial harm presented by the alleged negligence. Pursuant to § 35.1 (b) of the Probate Court Rules, the Probate Court has broad discretion to waive the requirement of a probate bond.

12511234

IN RE ANAISHALY C. et al.

In re Anaishaly C.

2019-06-10

AC 41830, (AC 41889)

12

28

213 A.3d 12

213

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:58:09.224733+00:00

Fastcase

IN RE ANAISHALY C. et al.

IN RE ANAISHALY C. et al. AC 41830, (AC 41889) Appellate Court of Connecticut. Argued January 16, 2019 Officially released June 10, 2019 David J. Reich, for the appellant in AC 41830 (respondent father). Joshua Michtom, assistant public defender, for the appellant in AC 41889 (respondent mother). Rosemarie T. Weber, assistant attorney general, with whom, on the brief, were George Jepsen, former attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee in both cases (petitioner). DiPentima, C. J., and Keller and Elgo, Js. In accordance with the spirit and intent of General Statutes § 46b-142(b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court. June 10, 2019, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

8370

52995

ELGO, J. The respondent mother (mother) and the respondent father (father) appeal from the judgments of the trial court terminating their parental rights with respect to their minor children, Anaishaly C. and Khrianalis C., and appointing the petitioner, the Commissioner of Children and Families (commissioner), as the statutory parent. The respondents contend that the court improperly concluded that (1) they failed to achieve the requisite degree of personal rehabilitation required by General Statutes § 17a-112, and (2) termination of their parental rights was in the best interests of the children. We affirm the judgments of the trial court. The following facts, which the trial court found by clear and convincing evidence, and procedural history are relevant to the resolution of this appeal. On August 28, 2012, the father was arrested on charges of assault in the third degree and disorderly conduct after he punched and kicked the mother during an argument at their residence, leaving a boot shaped imprint on her back. The mother was transported to the hospital by ambulance. Although the father told police officers that he had consumed several drinks, the police report noted his ability to articulate his thoughts clearly and calmly. According to the police report, the mother told officers that Anaishaly, who was born in June, 2011, and was fourteen months old at the time, was living with the respondents and had not witnessed the assault. Thereafter, a no contact protective order was issued by the criminal court. The order barred the father from initiating any contact with the mother and required him to vacate the home that they shared. On October 21, 2014, the mother met with a Department of Children and Families (department) social worker and its domestic violence consultant. At that time, the mother indicated that she was afraid of the father and informed the department about his ongoing abuse. She told the department personnel about the incident that occurred on August 28, 2012, and about another occasion in which the father had choked and had assaulted her, which left a scar on her forehead. On October 22, 2014, after the mother signed a safety plan in which she agreed to have no contact with the father, the department brought her and Anaishaly to a domestic violence shelter. During October, 2014, the mother received drug treatment because she had rendered a positive urine test during a substance abuse assessment. On October 27, 2014, the department learned that the mother and Anaishaly were no longer at the shelter after a department worker called the cell phone number provided by the mother and the father answered. He stated that he was at work and that the mother was at home with Anaishaly. Later that day, the mother spoke with a department worker. She reported that she had bipolar disorder, expressed her reluctance to return to the shelter, and recanted the allegations that the father had abused her physically. On that same date, the commissioner assumed temporary custody of Anaishaly, who was then three years old, pursuant to an administrative ninety-six hour hold. On October 30, 2014, the commissioner filed a neglect petition as to Anaishaly and obtained an ex parte order of temporary custody. That order was sustained at a hearing held on November 5, 2014. At 4:11 a.m. on January 1, 2015, police were called to the respondents' address. The police report indicated that the father had kicked in the front door of the apartment and attempted to punch the mother. Responding officers observed the damaged door, overturned furniture, and other vandalism. The father was not at the scene when the police arrived. The police returned to the residence again at approximately 6 a.m., at which time the mother told the police that she had received a telephone call from the father, who had threatened to "kill her" and "burn down" the apartment. (Internal quotation marks omitted.) The police discovered the father on the premises and arrested him on charges of threatening, criminal mischief, disorderly conduct, and possession of a hallucinogenic substance. The police report noted that the father was "acting like he had consumed some kind of drug(s) and alcohol." Tablets, later identified as the illegal drug ecstasy, were found on the father's person. The police report also noted that the father was combative during booking. On January 2, 2015, another full no contact protective order was issued against the father, which prohibited him from having any contact with the mother and required him to stay 100 yards away from her. He subsequently was convicted of threatening and received a six month suspended jail sentence as a result of this incident. Anaishaly was adjudicated neglected and committed to the commissioner's custody on February 24, 2015. Thereafter, the department referred both respondents to various rehabilitative services in order to facilitate their reunification with Anaishaly. During 2015, the mother successfully completed an intimate partner violence course, substance abuse treatment, and a parenting education course. The father's progress reports revealed mixed results. Although a department report received on March 18, 2015, indicated that he had attended all sessions in a parenting education course, he did not appear to gain insight about "how to effectively parent and display an image of a good father to his child." He also received drug treatment, from which he was discharged on September 29, 2015. Although his drug tests were negative on August 3, August 17 and September 28, 2015, he tested positive for opiates on September 8, 2015, and positive for oxycodone on September 14, 2015. The father claimed that the positive urine tests resulted from his use of his mother's prescription pain killers to treat a back injury. Following his completion of a family violence program on November 17, 2015, the department believed that he made progress in that program. Khrianalis was born in August, 2015. After being discharged from the hospital, she lived with the respondents. Approximately six months after Khrianalis was born, the department referred the respondents to the Village for Children & Families (Village) for reunification services in an effort to reunify Anaishaly with the respondents and Khrianalis. The Village began providing reunification services on March 3, 2016. On the basis of the respondents' satisfactory participation with the Village, the department returned Anaishaly to the respondents' home on a trial basis on May 31, 2016. Approximately one month later, on June 28, 2016, neighbors overheard the father cursing at the mother, followed by loud noises coming from the respondents' apartment. Several tenants were concerned that it sounded like the father was physically abusing the mother. A department social worker met with the respondents the next day. Both respondents denied that there had been any physical violence. They told the department social worker that they had not argued but had discussed an accusation that the father had been seen with another woman earlier that day. The department social worker also learned that the mother was pregnant. The department social worker spoke with Anaishaly, who was five years old at the time. Anaishaly reported to the department social worker that she and Khrianalis had stayed the previous night at their paternal grandmother's home. She also reported that she had observed the mother and the father arguing and had observed the father hit the mother. Anaishaly proceeded to describe verbally and physically where and how the father hit the mother, pointing to her left cheek when asked where the mother was hit. She showed an open hand and performed a slapping motion when she was asked how the father hit the mother. In response to Anaishaly's disclosure, "[t]he [respondents] openly blamed Anaishaly for the current situation, saying she has lied about witnessing violence and has lied on a frequent basis." As a result of this incident, the department returned five year old Anaishaly to foster care on June 29, 2016. On that same date, the commissioner assumed temporary custody of almost ten month old Khrianalis pursuant to an administrative ninety-six hour hold. On July 1, 2016, the commissioner filed a neglect petition as to Khrianalis and obtained an ex parte order of temporary custody. That order was sustained on July 8, 2016. Khrianalis was adjudicated neglected on September 8, 2016. The children have remained in department foster care continuously from June 29, 2016, to the time of trial and have been placed with their paternal stepuncle, Jose Q., and his domestic partner. On July 1, 2016, the court issued amended specific steps to the respondents. They were "ordered, inter alia, to cooperate with counseling and gain insight about how domestic violence affects their children; abstain from illegal drugs; submit to random drug testing; submit to substance abuse evaluations and follow treatment recommendations; visit the children as often as permitted; and obtain suitable housing." To facilitate their compliance with the treatment goals and reunification, the department referred the respondents to appropriate services and treatment that focused on their problems with substance abuse, parenting skills, intimate partner violence, and lack of suitable housing. On November 26, 2016, the mother gave birth to another daughter, Knitzeyalis. Both the mother and the child's meconium tested positive for marijuana. On November 30, 2016, the commissioner obtained an ex parte order granting her temporary custody of Knitzeyalis. That order was sustained by the court at a hearing held on December 9, 2016. Knitzeyalis was adjudicated neglected and committed to the commissioner's custody on January 3, 2017. She has remained in the commissioner's custody and guardianship from the date of her removal through the time of trial and lives with her sisters in the foster home of Jose Q. As the court indicated in its memorandum of decision, "[e]xtensive evidence was presented during this trial about the [respondents'] varying degrees of cooperation and involvement with services during the past two years." On September 29, 2016, prior to the birth of Knitzeyalis, the department referred the respondents to the Intimate Partner Violence-Family Assessment Intervention Response (IPV-FAIR) program at Community Health Resources. The service provider informed the department that the respondents were discharged from the program on January 3, 2017, due to poor attendance. On May 5, 2017, the commissioner filed termination of parental rights petitions as to the respondents on behalf of the children. The department had been providing reunification services since October, 2014, when Anaishaly was first placed into foster care at three years old. At the time the petitions were filed, Anaishaly was nearly six years old, and Khrianalis, who was placed in foster care when she was almost ten months old, was twenty months old. The respondents subsequently reengaged in the IPV-FAIR program on May 22, 2017, and successfully completed it on November 1, 2017. They attended the IPV-FAIR program "regularly, participated consistently in the sessions, were cooperative, and made progress in the program." In a discharge summary dated November 11, 2017, an outreach therapist at Community Health Resources "recommended that [the father] should undergo a mental health assessment and follow treatment guidelines to deal with [the] underlying trauma issues in his life that appear to cause his reactive behavior." The father had not initiated this treatment as of the conclusion of trial. On October 24, 2017, while the termination of parental rights petitions were still pending, the department referred the family to the Village for a reunification readiness assessment to determine if the children could be safely returned to the respondents' care. Chastity Chandler, who holds a master's degree in social work and is employed as a family support specialist at the Village, was assigned to conduct the thirty day evaluation. She met with the family on eight occasions. She observed four visits between the respondents and the children and also visited the family home four times. The court found that Chandler "credibly reported that [the respondents] actively engaged with the children during the visits and that [the respondents] were capable of meeting the children's basic needs.... She credibly testified that the respondents displayed love and affection for the children during these contacts and that a strong bond exists between the [respondents] and their children.... Chandler testified credibly that Anaishaly articulated her desire to live with [the respondents]." (Citations omitted.) Chandler, however, did not recommend reunification. Notwithstanding the pendency of the termination of parental rights petitions, both respondents were noncompliant with random drug testing. The father cooperated with only one out of twelve random drug screens. He did not appear for his first random drug test on September 8, 2017. He submitted a sample that was negative for all illicit substances on September 19, 2017, but he then failed to attend all subsequent random testing sessions. Further, the father told Chandler that he would continue smoking marijuana after the children were returned to his care because he did not believe that using it was harmful. The mother refused to give a urine sample when one was requested on October 25, 2017. Both respondents refused to submit to segmented hair tests. On November 21, 2017, Chandler held a "closing meeting," which was attended by the respondents and department personnel, where she explained the outcome of the Village's reunification assessment to the respondents. During the meeting, the father became upset, used profanity, made a threat to harm a department social worker, and threatened that he would "blow up" the department office. After the reunification assessment, in December, 2017, the department asked both respondents to submit to segmented hair drug testing. The mother did not attend scheduled appointments for hair testing on either December 21 or December 26, 2017. A hair sample was collected from the mother on January 2, 2018, which came back negative. The mother admitted, however, that she had used marijuana sometime between Christmas and New Year's Day. The father appeared for testing on December 26, 2017, but because he had cut his hair, he could not provide a testable sample. Between that date and trial, the father had been scheduled for four appointments for hair testing, and he had still not been tested. The court also found that the respondents failed to secure adequate housing. At the time of the reunification assessment, in the fall of 2017, the respondents were residing in a five bedroom apartment that was leased by the father's mother, who was the recipient of section 8 housing benefits whereby program rules prohibited the respondents from living with her in the apartment. Consequently, the court found that "at the time of the readiness reunification assessment, the [respondents] lacked stable housing for [the children and Knitzeyalis]." In making these findings, the court also found relevant that in February, 2017, the mother was dismissed from a supportive housing assistance program, which provided her with rental assistance, due to noncompliance with program rules. The program allowed for two warnings of noncompliance, and the mother was issued three warnings due to disturbances at the home and her failure to attend meetings. Through the date of trial, the children resided with their foster parents, their foster parents' two children, and Knitzeyalis. The court found that the children have bonded well with their foster parents and other family members. Although Jose Q. and his domestic partner initially told the department that they would not serve as long-term placement resources, they have since informed the department that they are willing to adopt the children. The court credited a department social study, which opined that the children "need permanent and stable living arrangements in order to grow and develop in a healthy manner." A trial on the termination of parental rights was held on January 11, April 12 and May 1, 2018. On May 22, 2018, the court terminated the respondents' parental rights and appointed the commissioner as the children's statutory parent. This appeal followed. I The respondents first claim that there was insufficient evidence for the trial court to find by clear and convincing evidence that they have each failed to achieve the degree of personal rehabilitation that would encourage the belief that, within a reasonable time, they could assume a responsible position in the lives of the children. We disagree. We begin by setting forth the applicable standard of review and general principles. "The trial court is required, pursuant to § 17a-112, to analyze the [parents'] rehabilitative status as it relates to the needs of the particular child, and further . such rehabilitation must be foreseeable within a reasonable time.... Rehabilitate means to restore [a parent] to a useful and constructive place in society through social rehabilitation.... The statute does not require [a parent] to prove precisely when [he or she] will be able to assume a responsible position in [his or her] child's life. Nor does it require [him or her] to prove that [he or she] will be able to assume full responsibility for [his or her] child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation [he or she] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [he or she] can assume a responsible position in [his or her] child's life.... In addition, [i]n determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department.... "When a child is taken into the commissioner's custody, a trial court must issue specific steps to a parent as to what should be done to facilitate reunification and prevent termination of parental rights." (Citations omitted; footnote added; internal quotation marks omitted.) In re Shane M. , 318 Conn. 569, 585-86, 122 A.3d 1247 (2015). "Specific steps provide notice and guidance to a parent as to what should be done to facilitate reunification and prevent termination of rights. Their completion or noncompletion, however, does not guarantee any outcome. A parent may complete all of the specific steps and still be found to have failed to rehabilitate.... Conversely, a parent could fall somewhat short in completing the ordered steps, but still be found to have achieved sufficient progress so as to preclude a termination of his or her rights based on a failure to rehabilitate." (Citation omitted.) In re Elvin G. , 310 Conn. 485, 507-508, 78 A.3d 797 (2013). "While . clear error review is appropriate for the trial court's subordinate factual findings . the trial court's ultimate conclusion of whether a parent has failed to rehabilitate involves a different exercise by the trial court. A conclusion of failure to rehabilitate is drawn from both the trial court's factual findings and from its weighing of the facts in assessing whether those findings satisfy the failure to rehabilitate ground set forth in § 17a-112(j)(3)(B). Accordingly . the appropriate standard of review is one of evidentiary sufficiency, that is, whether the trial court could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify its [ultimate conclusion].... When applying this standard, we construe the evidence in a manner most favorable to sustaining the judgment of the trial court." (Emphasis in original; footnote omitted; internal quotation marks omitted.) In re Shane M. , supra, 318 Conn. at 587-88, 122 A.3d 1247. "An important corollary to these principles is that the mere existence in the record of evidence that would support a different conclusion, without more, is not sufficient to undermine the finding of the trial court. Our focus in conducting a review for evidentiary sufficiency is not on the question of whether there exists support for a different finding-the proper inquiry is whether there is enough evidence in the record to support the finding that the trial court made." (Emphasis altered.) In re Jayce O ., 323 Conn. 690, 716, 150 A.3d 640 (2016). The court found by clear and convincing evidence that the department's offer and provision of services from 2015 through the end of the trial "constituted reasonable and timely efforts by the department to assist each parent's rehabilitation and to reunify the family." It also found by clear and convincing evidence that the respondents had each "failed to achieve the degree of personal rehabilitation that would encourage the belief that, within a reasonable time, considering [the] ages and needs of [the children], they could assume a responsible position in the lives of those children." Our review of the record in light of the lengthy recitation of the factual findings made by the court convinces us that the extensive evidence credited by the court supports its determination. The court found that "[the children] came into [the commissioner's] custody because of [the respondents'] problems with marijuana use, domestic violence and transience. Anaishaly was twice removed from the custody of [the respondents]. She has been committed to the [commissioner's custody] since February 24, 2015. Khrianalis followed her sister into the child protection system on June 29, 2016. Both children have lived in their current foster home since that date." The court concluded "[b]ased on all of the evidence presented . that [the respondents] are unable or unwilling to benefit from the extensive assistance that [the department] and other agencies have offered and provided to them while the children's cases have been pending." As the court explained in its memorandum of decision: "[The department] has offered and provided multiple reunification services to [the respondents] on an ongoing basis since October, 2014. These have included mental health counseling, substance abuse evaluations, counseling and testing, parenting education, intimate partner violence programs, supervised visitation, case management, supportive housing assistance, and reunification readiness assessments and services. The court has found that these services were timely and constituted reasonable efforts to reunify the family. The respondents successfully completed some programs, but they were unsuccessful, or noncompliant, with others. One [department] witness offered an apt analogy during her testimony when she likened the twists and turns of this case to a roller coaster ride. There were high points when [the respondents] appeared to be making progress, followed by low points when the [respondents], who were twice assessed for the return of the children, engaged in negative behavior that stopped reunification in its tracks." In challenging these findings, both respondents argue that there is no evidence that their use of marijuana affected their ability to parent, and that "because the law concerning [the criminalization of] marijuana has changed, this change must also be reflected in the law concerning child protection ." We are not persuaded. First, the respondents offer no authority to support their claim that the movement toward legalization of marijuana is relevant to the law the court was required to apply in evaluating the evidence in this case. Indeed, our Supreme Court has held otherwise. The court in In re Shane M. , supra, 318 Conn. at 596 n.23, 122 A.3d 1247, found "unpersuasive the respondent's claim that, even properly drawn, [the] inference [that he had continued to use marijuana based on his proven past marijuana use and his refusal to submit to drug testing] did not prove that he failed to rehabilitate because criminal penalties for possession of marijuana have been reduced and the legislature has approved the use of marijuana for palliative medical purposes." Our Supreme Court reasoned that, "regardless of marijuana's recent limited legalized status, the respondent was ordered to refrain from using it due to his extensive personal history of substance abuse." Id. Similarly, in the present case, the respondents' personal history of substance abuse, which has included the illegal use of marijuana, as well as other substances, has properly informed and determined their specific steps, which, in turn, are prerequisites to their own rehabilitation. See id. ; see also In re Elvin G. , supra, 310 Conn. at 507-508, 78 A.3d 797 ("[s]pecific steps provide notice and guidance to a parent as to what should be done to facilitate reunification and prevent termination of rights"). Second, there is a vast difference in the purpose and application of criminal laws designed to protect the general public as compared to specific steps tailored to parents whose parenting issues are precisely why they have come to the attention of the department and the child protection court in the first instance. In the same way that the general public may legally consume alcohol while those who are alcohol dependent may not enjoy the same freedom, less restrictive laws around marijuana use for the general public have no bearing on respondents whose abuse of substances, including marijuana, has required treatment and abstention. The current movement and controversy over the legalization of marijuana in the criminal justice context is simply irrelevant. Further, the respondents' focus on the legalization of marijuana operates on the assumption that their admissions of marijuana use are credible evidence of the extent of their rehabilitation. Understood in the context of the respondents' failure to cooperate with drug testing, evidence amounting to the respondents' self-report of marijuana use was simply that-a self-serving assessment of their own rehabilitative status-which the court was free not to credit. In fact, the proper measure of their compliance with the requirement that they refrain from abusing substances is in their ability to provide negative and randomized drug testing results over a sustained period of time, which they failed to do. The respondents knew full well that the failure to submit to drug testing violated their specific steps, which, in turn, would impede reunification with their children. Understanding these consequences, and not-withstanding the pending termination petitions, the respondents nevertheless chose not to comply, which the court properly considered in finding that the respondents failed to rehabilitate. In observing that the mother "was also aware that her fitness to resume custody of [the children and Knitzeyalis] was being evaluated when she refused to submit to drug testing in October, 2017," the court gave appropriate weight to this factor when considering whether the respondents were willing and able to reunify with the children. We simply do not find fault in the court's finding that "the [respondents'] refusal to comply with drug testing during the assessment period, and the father's attitude about continued marijuana use, [was] particularly disturbing. This evidence reveals each parent's significant lack of insight about the correlation between substance abuse and intimate partner violence, as well as their failure to recognize how their use of illegal substances has harmed [the children] and Knitzeyalis." The respondents also argue that there was insufficient evidence for the court to conclude that they had failed to rehabilitate on the basis of their problems with domestic violence, noting that there were no incidents of intimate partner violence since 2016, and that they had each completed domestic violence programs. We reiterate that, on review, we must determine "whether the trial court could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify its [ultimate conclusion]." (Emphasis added; internal quotation marks omitted.) In re Shane M. , supra, 318 Conn. at 588, 122 A.3d 1247. The record indicates that the court did not base its determination regarding failure to rehabilitate solely on the respondents' problems with domestic violence. The court expressed its specific concern with the father's history of domestic violence and the link between at least two of those instances and his use "of alcohol and/or illegal controlled substances." Although the court did not find that there were any instances of domestic violence since 2016, it was reasonable for the court to infer that the father has not been able to control his temper or anger. The court specifically noted "the similarity between [the father's] conduct on January 1, 2015, when he threatened to kill [the mother] and burn down her apartment, and his behavior on November 21, 2017, when he threatened to cause physical harm to [a department social worker] and blow up the [department] office." That November 21, 2017 incident occurred after the respondents had completed the IPV-FAIR program. The respondents also argue that their housing situation did not support the court's ultimate conclusion that they have failed to rehabilitate. We again note that we must look at the cumulative effect of the evidence; In re Shane M. , supra, 318 Conn. at 588, 122 A.3d 1247 ; and that the respondents' housing situation was but one of multiple factors the court considered when it made its decision. The court credited the evidence that the respondents cannot legally stay with the children at the home of the father's mother. It concluded that, "[a]s a result, the mother and the father are still without suitable housing for the children . [and] this problem might have been solved if the mother had not been discharged due to noncompliance last year from the supportive housing assistance program to which she had been referred by [the department]." Neither respondent challenges the court's factual findings. See footnote 10 of this opinion. Although the respondents were living with the father's mother, there was evidence, which the court credited, to support its conclusion that such housing was neither suitable nor permissible. The court's memorandum of decision plainly indicates that the court considered the respondents' refusal to submit to substance abuse testing, concerns over domestic violence, and the lack of suitable housing when it concluded that the respondents have failed to achieve a sufficient degree of personal rehabilitation since the department began providing reunification services to the respondents, beginning in October, 2014. The record before us contains evidence that substantiates these findings. Accordingly, we conclude that the court reasonably could have determined, on the basis of its factual findings and the reasonable inferences drawn therefrom, that the respondents failed to achieve sufficient rehabilitation that would encourage the belief that, within a reasonable time, they could assume a responsible position in the children's lives. II The respondents next claim that the court improperly determined that the termination of their parental rights was in the best interests of the children. Specifically, they argue that the court's conclusion was improper because the court found, among other things, that they have made progress in their rehabilitation and that they have a strong bond with the children. We disagree. We begin by setting forth the applicable standard of review and general principles. "In the dispositional phase of a termination of parental rights hearing, the emphasis appropriately shifts from the conduct of the parent to the best interest of the child.... It is well settled that we will overturn the trial court's decision that the termination of parental rights is in the best interest of the [child] only if the court's findings are clearly erroneous.... The best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of [his or her] environment.... In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [ § 17a-112(k) ]. . The seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered.... There is no requirement that each factor be proven by clear and convincing evidence." (Footnotes added and altered; internal quotation marks omitted.) In re Joseph M. , 158 Conn. App. 849, 868-69, 120 A.3d 1271 (2015). In the portion of its memorandum of decision where it addressed the dispositional phase, the court reasoned: "The court has given careful consideration to the strong feelings which the [respondents] and the children have for each other. However, the court must examine and weigh this evidence in conjunction with the evidence about the length of time that both children have been in foster care and each parent's lack of progress toward reunification. Anaishaly, who will turn seven in June, [2018], has spent a total of more than three and [one-half] years in the custody of [the commissioner]. Khrianalis, who will be three in August, [2018], has resided for almost [twenty-three] months-or slightly less than two thirds of her life-in a foster home. Based on each parent's inability to sufficiently recognize and remedy the issues that caused the children's removal, and their failure to substantially benefit from services and treatment, it is impossible to predict when in the future [the children] could be safely returned home. The evidence also established that [the children] are both doing well in their present placement, and that their caretakers have committed to adopting them." The court concluded: "Because of the strong bond that exists between the [respondents] and [the children], it is very appropriate that [the mother] and [the father] were afforded much help and many opportunities to achieve reunification. However, despite receiving many supportive services during the lengthy pendency of this matter, the respondents have not resolved the serious and chronic problems that resulted in the children's commitment to [the commissioner's custody]. [The children] require the security of a safe and stable, permanent home. Their current placement provides this to them. Their biological parents remain unable to offer this to them. The court finds that it would be detrimental to the well-being of these children [to] delay permanency any longer in order to afford the respondents additional time to pursue rehabilitative efforts which have thus far proven unsuccessful." The court also made additional findings as to the seven factors enumerated in § 17a-112(k) and those findings are supported by the record. Although the respondents contend that certain positive facts found by the court outweigh the negatives, "we will not scrutinize the record to look for reasons supporting a different conclusion than that reached by the trial court." In re Shane M. , supra, 318 Conn. at 593, 122 A.3d 1247. The respondents point out that the court found that they had made some progress in their rehabilitation efforts. We will not, however, overlook the court's finding that despite "successfully complet[ing] some programs," the respondents were "unsuccessful, or noncompliant, with others" since the department removed Khrianalis and Anaishaly, for the second time, from their care on June 29, 2016. Moreover, as to the respondents' contention that the court found that they shared a bond with their children, " '[o]ur courts consistently have held that even when there is a finding of a bond between [a] parent and a child, it still may be in the child's best interest to terminate parental rights.' In re Rachel J. , 97 Conn. App. 748, 761, 905 A.2d 1271, cert. denied, 280 Conn. 941, 912 A.2d 476 (2006) ; see also In re Tyqwane V. , 85 Conn. App. 528, 536, 857 A.2d 963 (2004) ('The Appellate Court has concluded that a termination of parental rights is appropriate in circumstances where the children are bonded with their parent if it is in the best interest of the child to do so.... This is such a case.' .); In re Ashley S. , 61 Conn. App. 658, 667, 769 A.2d 718 ('[A] parent's love and biological connection . is simply not enough. [The department] has demonstrated by clear and convincing evidence that [the respondent] cannot be a competent parent to these children because she cannot provide them a nurturing, safe and structured environment.'), cert. denied, 255 Conn. 950, 769 A.2d 61 (2001)." In re Melody L. , 290 Conn. 131, 164, 962 A.2d 81 (2009), overruled in part on other grounds by State v. Elson , 311 Conn. 726, 91 A.3d 862 (2014). The existence of a bond, while relevant to the court's analysis, is not dispositive of the best interests determination. On our careful review of all the evidence, we cannot conclude that the trial court's determination that the termination of the respondents' parental rights was in the best interests of the children was clearly erroneous. The judgments are affirmed. In this opinion the other judges concurred. We refer to the mother and the father collectively as the respondents. The mother gave birth to two other children. See footnote 6 of this opinion. We refer to all four children individually by their names, and we refer to Anaishaly and Khrianalis collectively as the children. We note that pursuant to Practice Book § 67-13, the attorney for the minor children filed a statement adopting the brief of the commissioner in the mother's appeal. According to a department social worker affidavit, pursuant to the safety plan, the mother agreed to go to the domestic violence shelter, follow the shelter's rules, and follow its recommendations, including those related to advocacy and domestic violence education. The mother also agreed to have no contact with the father and to file a restraining order against him. She further agreed to request advocacy regarding her lease. The department agreed to maintain communication with the mother and shelter staff. It also agreed to continue its assessment and to provide case management services. The file indicates that the respondents were issued specific steps filed on October 30, 2014, and signed by the respondents on November 5, 2014, which provided, inter alia, that they: participate in counseling and make progress toward the identified treatment goals; not use illegal drugs or abuse alcohol or medicine; submit to random drug testing; cooperate with service providers' recommendations for parenting/individual/family counseling, in-home support services, and/or substance abuse assessment/treatment; get and/or maintain adequate housing and a legal income; and learn about the impact of domestic violence on children. The respondents' parental rights as to Knitzeyalis are not the subject of this action. The mother also has an older child, Taisha R.G., who was born on December 19, 2007. According to a department social study, from "March 19, 2008, to August, 2009, [the mother] had protective services involvement in Massachusetts due to domestic violence and homelessness/transience." Guardianship of Taisha was transferred from the mother to the child's paternal grandmother in May, 2008. Since that time, Taisha has remained in her paternal grandmother's care. In its memorandum of decision, the court took judicial notice of the fact that "the court issuing that order of temporary custody made a legal finding that Knitzeyalis was in immediate danger of physical injury from [the] surroundings in the parental home at the time the order was signed." In addition to the IPV-FAIR program, the mother also successfully completed an "Intimate Partner Violence Group" on September 17, 2016, and a "Positive Parenting & Support Group" on May 20, 2017. (Internal quotation marks omitted.) The mother also completed similar domestic violence programs known as "Integrated Family Violence Services" on dates not specified and "Positive Parenting Education and Support Groups" on July 28, 2015, and September 17, 2016. (Internal quotation marks omitted.) A clinician at the agency where the testing was conducted testified that the mother's use of marijuana would likely not have shown on the hair test because of how recently the hair sample was collected relative to the time frame of the mother's reported use of the drug. We note that the father does not argue that the court's findings are clearly erroneous and, in the mother's appellate brief, she explicitly states that she "does not by the present appeal challenge the trial court's factual findings." Instead, both respondents argue that those findings are insufficient to support the court's ultimate conclusion. General Statutes § 17a-112(j) provides in relevant part: "The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent . (2) termination is in the best interest of the child, and (3) . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected, abused or uncared for in a prior proceeding, or (ii) is found to be neglected, abused or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child ." We note that the respondents do not argue on appeal that the department did not make reasonable and timely efforts to assist in their rehabilitation and reunification with the children. In her appellate brief, the mother specifically refers to the permitted palliative use of marijuana; see General Statutes § 21a-408a et seq. ; and the decriminalization of possession of less than one-half ounce of marijuana. See General Statutes § 21a-279a. The mother argues that the court cited to a department social study written before she completed the IPV-FAIR program in November, 2017, to support the following findings: "The court finds that the mother lacks understanding about the dynamic of intimate partner violence that exists in her relationship with the father, and how it is harmful to her children. The court finds that there is a substantial likelihood that [the children] would be exposed to acts of domestic violence, or other angry outbursts by [the father] if they were returned to parental custody. The court also finds that [the mother] has not demonstrated that she would be able to shield [the children] from the potential physical and psychological dangers associated with the father's reactive behavior." The mother, however, has not distinctly raised a claim that the court's factual findings were clearly erroneous. To the contrary, she specifically states in her appellate brief that she "does not by the present appeal challenge the trial court's factual findings." Moreover, on the evidence before us, we do not conclude that the court's factual findings were clearly erroneous. "In reviewing the trial court's decision, [b]ecause it is the trial court's function to weigh the evidence . we give great deference to its findings." (Internal quotation marks omitted.) In re Shane M. , supra, 318 Conn. at 593 n.20, 122 A.3d 1247. We further note that the mother completed the IPV-FAIR program to which she refers in November, 2017, subsequent to the May, 2017 filing of the termination of parental rights petitions. Practice Book § 35a-7 (a) provides: "In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights." This court "has expanded that rule to allow courts to consider events subsequent to the filing date of the petitions in the adjudicatory phase of termination proceedings. Practice Book § 33-3(a) [now § 35a-7] limits the time period reviewable by the court in the adjudicatory phase to the events preceding the filing of the petition or the latest amendment.... In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time." (Emphasis in original; internal quotation marks omitted.) In re Jennifer W. , 75 Conn. App. 485, 494-95, 816 A.2d 697, cert. denied, 263 Conn. 917, 821 A.2d 770 (2003). The mother also asserts "that there was absolutely no evidence adduced suggesting that ongoing visits with the [respondents] while the children remained in the sole relative foster placement [that they have] known since removal was having any negative effect on them.... Indeed, there was no evidence suggesting that the continuation of the [respondents'] legal rights would affect the children's well-being in any way." (Citation omitted.) This assertion, however, ignores established case law and the fundamental underlying public policy that recognizes the importance of permanency in a child's life. Anaishaly was removed from the respondents' care when she was three years old. Khrianalis was almost ten months old when she was removed from the respondents' care. The children have been in legal limbo since then. At the time the termination of parental rights petitions were filed, Anaishaly was almost six years old and Khrianalis was almost two years old. When the court rendered its decision, Anaishaly was almost seven years old and Khrianalis was almost three years old. Our appellate courts have "noted consistently the importance of permanency in children's lives. In re Juvenile Appeal (Anonymous) , 181 Conn. 638, 646, 436 A.2d 290 (1980) (removing child from foster home or further delaying permanency would be inconsistent with his best interest); In re Victoria B. , 79 Conn. App. 245, 263, 829 A.2d 855 (2003) (trial court's findings were not clearly erroneous where much of child's short life had been spent in custody of [commissioner] and child needed stability and permanency in her life); In re Teshea D ., [9 Conn. App. 490, 493-94, 519 A.2d 1232 (1987) ] (child's need for permanency in her life lends added support to the court's finding that her best interest warranted termination of the respondent's parental rights). Virtually all experts, from many different professional disciplines, agree that children need and benefit from continuous, stable home environments." (Internal quotation marks omitted.) In re Davonta V. , 285 Conn. 483, 494, 940 A.2d 733 (2008). "Termination of a biological parent's rights, by preventing further litigation with that parent, can preserve the stability a child has acquired in a successful foster placement and, furthermore, move the child closer toward securing permanence by removing barriers to adoption.... Even if no adoption is forthcoming, termination can aid stability and lessen disruption because a parent whose rights have been terminated no longer may file a motion to revoke the commitment of the child to the custody of the [commissioner] . or oppose an annual permanency plan." (Citation omitted; internal quotation marks omitted.) In re Nevaeh W. , 317 Conn. 723, 733, 120 A.3d 1177 (2015). Evidence before the court supported its findings that the children require permanency, and the court properly considered their need for permanency in its consideration of whether termination was in their best interests. Accordingly, we reject the mother's assertion. "Proceedings to terminate parental rights are governed by § 17a-112.... Under § 17a-112, a hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the . grounds for termination of parental rights set forth in § 17a-112 [ (j)(3) ] exists by clear and convincing evidence.... If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child.... The best interest determination also must be supported by clear and convincing evidence." (Citation omitted; internal quotation marks omitted.) In re Shane M. , supra, 318 Conn. at 582-83 n.12, 122 A.3d 1247. General Statutes § 17a-112(k) provides: "Except in the case where termination of parental rights is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption and Safe Families Act of 1997, as amended from time to time; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child's parents, any guardian of such child's person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust such parent's circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent."

12503184

Dennis ADKINS v. COMMISSIONER OF CORRECTION

Adkins v. Comm'r of Corr.

2018-10-02

AC 40037

1149

1171

196 A.3d 1149

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

Dennis ADKINS v. COMMISSIONER OF CORRECTION

Dennis ADKINS v. COMMISSIONER OF CORRECTION AC 40037 Appellate Court of Connecticut. Argued April 10, 2018 Officially released October 2, 2018 Michael W. Brown, assigned counsel, for the appellant (petitioner). Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Adrienne Russo, assistant state's attorney, for the appellee (respondent). Sheldon, Keller and Prescott, Js.

11600

72241

KELLER, J. Following the granting of his petition for certification to appeal, the petitioner, Dennis Adkins, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court improperly rejected his claim that his prior habeas counsel rendered ineffective assistance on the basis that he failed (1) to claim that trial counsel rendered ineffective assistance by failing to advise the petitioner with respect to his right to appeal from the denial of his motion to withdraw his guilty plea, (2) to present evidence in support of the petitioner's claim that his guilty plea was the result of trial counsel's ineffective assistance, and (3) to claim that trial counsel's conflict of interest resulted in the petitioner's guilty plea. We affirm the judgment of the habeas court. The following undisputed procedural history is relevant to this appeal. The petitioner was arrested and charged with murder in violation of General Statutes § 53a-54 (a), felony murder in violation of General Statutes § 53a-54c, and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On April 4, 2000, pursuant to a plea agreement with the state, the petitioner pleaded guilty under the Alford doctrine to felony murder in violation of § 53a-54c. The petitioner was represented by Attorney Francis Mandanici. The prosecutor set forth the factual basis of the plea, as follows: "On August 24, 1999, at or about 10:27 p.m., in front of 119 Dewitt Street in New Haven, the victim [in] this case, Rodney Williams, was on the front porch and a person wearing a mask came down the driveway and confronted two people standing in the driveway, one of them a young lady. The person in the mask grabbed the lady's chain from around her neck. She grabbed it back. She and her boyfriend, who were in the driveway, indicated that the person was wearing a mask and had a handgun in his hand. According to witnesses out front, the individual came down the driveway with the mask and confronted the victim in this case, who was standing on the front steps or on the ground near the front steps, confronted the victim with a handgun, and the victim came down off the steps and went toward the assailant and there was a short tussle during which the assailant fired a series of shots, one of which hit the victim, Rodney Williams, in the chest and caused his death. "During the subsequent investigation, a Calvin Hinton . was interviewed and indicated that he had been with [the petitioner] earlier that evening. They had talked about robbing the victim in this case and that he saw the [petitioner] with a weapon. The [petitioner], in a subsequent statement, indicated [that] he received the weapon . from Hinton. In any event, Hinton indicated that he saw the [petitioner] go to the area where the victim was standing and later saw the [petitioner] run away from the area. "Subsequently, [the petitioner] was interviewed and admitted that he and Hinton had talked about [committing] the robbery, that Hinton had provided him the gun, that he had gone to the area for the purpose of committing a robbery of Williams, who they knew to be a drug dealer, [and] that a struggle ensued and shots were fired from his gun which struck Williams. [The petitioner] indicated that he did not intend to kill him, but that this did occur during the attempted commission of a robbery. Subsequently, after [the petitioner] was arrested and [incarcerated,] he admitted to an individual in the correctional facility that he was responsible for the shooting and actually detailed the fact that it occurred during the commission of an attempted robbery." The prosecutor set forth the details of the plea agreement. The petitioner was to serve a thirty-five year term of incarceration and the state agreed to enter a nolle prosequi with respect to additional charges. Additionally, the state agreed not to bring charges against the petitioner for what it considered to be efforts made by him to seek retribution against a witness. The trial court, Fasano, J. , thoroughly canvassed the petitioner. After finding that the plea was made knowingly and voluntarily, the court accepted the plea and entered a finding of guilt. The petitioner returned before the court, Fasano, J. , on May 26, 2000, for sentencing. At the hearing, Mandanici indicated that, although he was unaware of any legal grounds for the request, the petitioner indicated to him that he wanted to withdraw his plea. The court observed that there was a reference to the petitioner's request in the presentence investigation report and that it had received a correspondence from the petitioner in which he requested to withdraw his plea. The petitioner addressed the court personally with respect to his request, indicating that he was not satisfied with Mandanici's representation, Mandanici was aware that he did not commit the crime, the evidence that he had confessed to the crime was "bull shit," and he believed that he was entitled to "a lesser charge." The petitioner stated that he was "not pleading out to no murder." The court replied that the petitioner already had pleaded guilty under the Alford doctrine, that the petitioner had been canvassed thoroughly, and that the petitioner had not presented the court with a basis on which to permit him to withdraw his guilty plea. Thereafter, the court sentenced the petitioner in accordance with the plea agreement that he had reached with the state. In 2003, in a prior habeas corpus action, the petitioner filed an amended petition for a writ of habeas corpus in which he alleged that Mandanici had rendered ineffective assistance and, because of this violation of his constitutional rights, he should be permitted to withdraw his guilty plea. Also, relying on what he characterized as newly discovered evidence, the petitioner alleged that he was actually innocent. With respect to his ineffective assistance of counsel claim, the petitioner alleged that Mandanici had failed to conduct a proper pretrial investigation, failed to devote sufficient time to his defense, and failed to withdraw from his representation of the petitioner. During the prior habeas action, the petitioner was represented by Attorney Brian Russell. Following a hearing, the court, Fuger, J. , concluded that the petitioner had failed to demonstrate that Mandanici had performed deficiently and that even if such a showing had been made, the petitioner had failed to demonstrate that he suffered any prejudice as a result of Mandanici's acts or omissions. In its memorandum of decision, the court observed that there were two witnesses to the murder committed by the petitioner and that the petitioner had provided a confession to the police in which he revealed his role as the shooter. The court then stated: "[T]he petitioner now asserts that he was under the influence of illegal drugs at the time he made the statement [to the police], that the statement is false and that he only did it because he did not want to be labeled a 'snitch.' However, these assertions are not worthy of belief. Insofar as being under the influence of drugs at the time the statement was made, there are two factors that undermine the credibility of this assertion. First, the petitioner was arrested at about 10 a.m. on September 23, 1999. The statement was taken between 7:46 p.m. and 8:17 p.m. on that day. According to the petitioner, he ran from the police and swallowed some unspecified amount of crack cocaine that he had on him. There has been no evidence presented to this habeas court that would allow the court to conclude that a person who had ingested cocaine would still be under the influence of that drug nearly ten hours later. Significantly, there has been no evidence adduced to allow this court to conclude what, if anything, the ingestion of cocaine might do to a person's cognitive abilities. However, it is more or less colloquially known that the effects of cocaine are relatively short lived. Second, the testimony of Detective Sergeant [Joanne] Schaller, who coincidentally has training as an EMT paramedic, is clear that the petitioner was not exhibiting any outward signs of drug intoxication, nor did he complain of any illness or impairment. Moreover, there is some evidence that the idea to argue intoxication as a means to invalidate the confession originated with another inmate, Jason Reese. All of this leads this court to conclude that the petitioner's statement attacking his confession is self-serving and unworthy of belief." (Footnote omitted.) Moreover, the court rejected the petitioner's claim of actual innocence, noting that the petitioner had failed to submit to the court "anything even remotely resembling newly discovered evidence." Consequently, the court denied the amended petition for a writ of habeas corpus. This court affirmed the judgment of the habeas court. Adkins v. Commissioner of Correction , 88 Conn. App. 901, 869 A.2d 279 (2005), cert. denied, 281 Conn. 906, 916 A.2d 48 (2007). In May, 2016, the petitioner, represented by counsel, filed a third amended petition for a writ of habeas corpus in the habeas corpus action that underlies the present appeal. The amended petition set forth three counts. In count one, the petitioner alleged that Mandanici deprived him of his right to effective representation by failing to advise him with respect to his right to appeal from the trial court's denial of his oral motion to withdraw his guilty plea. He argued that he did not have a full and fair opportunity to raise this claim in his prior habeas action. In count two, the petitioner alleged that Mandanici deprived him of his right to conflict free representation at trial because on February 19, 2000, prior to the date of his plea, he filed a grievance complaint against Mandanici. The petitioner alleged that the filing of the complaint "completed a total and complete breakdown in the attorney-client relationship" between him and Mandanici. He argued that his defense "was adversely affected by [Mandanici's] actual conflict of interest" because Mandanici failed to communicate with him, failed to investigate the allegations against him, failed to zealously advocate for him during plea negotiations, and failed to advise him with respect to his right to appeal from the trial court's denial of his oral motion to withdraw his guilty plea. The petitioner alleged that he was prejudiced in that he received a harsher sentence than he would have received following a trial or an adequate plea bargaining process. The petitioner alleged that he did not have a full and fair opportunity to present this claim in his prior habeas action. In count three, the petitioner alleged that Russell had deprived him of his right to the effective assistance of counsel during the prior habeas action by failing "to plead and present evidence and argument" in support of the claims set forth in counts one and two. The petitioner argued that there was a reasonable probability that, but for Russell's deficient performance, the result of the petitioner's prior habeas action would have been favorable to him. With respect to the substantive allegations in the amended petition, the respondent, the Commissioner of Correction, generally left the petitioner to his proof. With respect to claims one and two, the respondent alleged as a special defense that, to the extent that the petitioner intended to raise these claims as freestanding claims against trial counsel, they were successive and should be dismissed. Additionally, with respect to claim one, the respondent alleged that, absent a showing that the Appellate Court denied a motion seeking permission to file a late appeal from the trial court's denial of the petitioner's motion to withdraw his guilty plea, the petitioner's claim related to his right to appeal was not ripe. Also, with respect to claim two, the respondent alleged as a special defense that the allegations set forth in claim two were barred by res judicata and collateral estoppel because they were raised, litigated, and resolved against the petitioner in the prior habeas action. Moreover, the respondent alleged that claim two should be dismissed because it constituted a legally noncognizable claim of "cumulative" error by trial counsel. Also, the respondent argued that the petitioner was defaulted from litigating the allegations in claim two because his conflict with Mandanici was the basis for his motion to withdraw his guilty plea and, although he had the opportunity to do so, he failed to appeal from the trial court's denial of the motion to withdraw the guilty plea. The respondent alleged that the petitioner failed to satisfy the cause and prejudice standard to excuse the default. In his reply to the return, the petitioner alleged that claims one and two were not barred by the successive petition doctrine because, due to Russell's ineffective representation during the prior habeas action, he was deprived of a full and fair opportunity to litigate these claims in that action. With respect to claim one, the petitioner alleged that his claim related to his right to appeal was ripe for adjudication. With respect to claim two, the petitioner alleged that the doctrines of collateral estoppel and res judicata did not apply because the issues involved had not been litigated in a prior proceeding. Also, the petitioner alleged that claim two was not pleaded in a legally deficient manner. Finally, the petitioner alleged that any procedural default with respect to claim two was the result of the ineffective assistance of counsel. The court, Sferrazza, J. , held a trial over the course of two days, September 1 and October 25, 2016. Among the evidence presented, the court heard testimony from Mandanici, Russell, and the petitioner. On December 7, 2016, the court rendered judgment denying the amended petition for a writ of habeas corpus. In its thorough memorandum of decision, the court dismissed the first and second counts of the petition under Practice Book § 23-29 (3) because they presented the same ground for relief, namely, ineffective representation by Mandanici, that Judge Fuger had considered and denied in the prior habeas action. The court, however, observed that, in the present action, the petitioner had the right to assert that Russell had rendered ineffective representation in the prior habeas action by failing to claim that Mandanici rendered ineffective representation because Russell failed to raise the newly raised claims on which the petitioner presently relies. These claims are that Mandanici failed to advise him with respect to his right to appeal from the trial court's denial of his motion to withdraw his guilty plea and that, because the petitioner filed a grievance complaint against Mandanici prior to the date of the plea, Mandanici had a conflict of interest during his representation of the petitioner. The court proceeded to analyze the merits of both of the petitioner's claims of ineffective assistance by Russell. After concluding that neither claim had merit, it denied the habeas petition. Thereafter, the court granted the petitioner's petition for certification to appeal. This appeal followed. Additional facts will be discussed as necessary. Before turning to the petitioner's claims, we set forth basic principles governing the present appeal. "The use of a habeas petition to raise an ineffective assistance of habeas counsel claim, commonly referred to as a habeas on a habeas, was approved by our Supreme Court in Lozada v. Warden , 223 Conn. 834, 613 A.2d 818 (1992). In Lozada , the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296 (a) includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to challenge the effectiveness of habeas counsel is through a habeas petition.... In Lozada , the court explained that [t]o succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. Lozada v. Warden , supra, 223 Conn. [at] 842 [613 A.2d 818]. As to each of those inquiries, the petitioner is required to satisfy the familiar two-pronged test set forth in Strickland v. Washington , [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]. First, the [petitioner] must show that counsel's performance was deficient.... Second, the [petitioner] must show that the deficient performance prejudiced the defense. . Unless a [petitioner] makes both showings, it cannot be said that the conviction . resulted from a breakdown in the adversary process that renders the result unreliable.... Lozada v. Warden , supra, 223 Conn. [at] 842-43 [613 A.2d 818]. In other words, a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice . "In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.... Judicial scrutiny of counsel's performance must be highly deferential and courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; [but] strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.... With respect to the prejudice prong, the petitioner must establish that if he had received effective representation by habeas counsel, there is a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . "It is well settled that in reviewing the denial of a habeas petition alleging the ineffective assistance of counsel, [t]his court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary." (Citations omitted; internal quotation marks omitted.) Gerald W . v. Commissioner of Correction , 169 Conn. App. 456, 463-65, 150 A.3d 729 (2016), cert. denied, 324 Conn. 908, 152 A.3d 1246 (2017) ; see also Toccaline v. Commissioner of Correction , 177 Conn. App. 480, 499, 172 A.3d 821 (describing petitioner's burden as "herculean task"), cert. denied, 327 Conn. 986, 175 A.3d 45 (2017). I First, the petitioner claims that the court improperly rejected his claim that Russell rendered ineffective assistance in the prior habeas action in that he failed to claim that Mandanici rendered ineffective assistance by failing to advise the petitioner with respect to his right to appeal from the denial of his motion to withdraw his guilty plea. We disagree. The court analyzed this claim, in relevant part, as follows: "Between plea and sentencing, on May 26, 2000, the petitioner expressed his desire to withdraw his guilty plea to both Attorney Mandanici and the trial judge in the presentence investigation report . and other material sent directly to the court by the petitioner. "Before imposing sentence, the trial judge heard the parties' positions on this request. Attorney Mandanici candidly acknowledged that he knew of no legal basis to grant the petitioner's request. Attorney Mandanici related that the petitioner never articulated to him any reason to withdraw the guilty plea except that the petitioner experienced a change of heart. "The trial judge inquired of the petitioner as to why he should permit the petitioner to withdraw his guilty plea. The petitioner responded by disavowing any knowledge that he pleaded guilty to murder rather than a lesser offense and by repudiating his confessions to the police and admissions to others. The trial court found that no legitimate basis for the withdrawal of the guilty plea existed and denied the petitioner's request. "Attorney Mandanici never advised the petitioner about the opportunity to appeal from that denial, and no appeal was timely initiated. The [Supreme] Court denied permission to file a late appeal on September 27, 2016, more than sixteen years after the criminal case concluded." The habeas court stated that the petitioner bore the burden of proving not only that Mandanici performed deficiently by failing to advise him with respect to his right to appeal, but that he suffered prejudice in that he would have succeeded on appeal and that he would have been acquitted following a retrial. The court stated: "After consideration of all the evidence adduced, the court finds that the petitioner has failed to meet his burden of proving, by a preponderance of the evidence, that Attorney Russell was deficient for failing in the first habeas corpus [action] to raise [a claim related to] Attorney Mandanici's failure to advise the petitioner about the possibility of appealing from the denial of his request to withdraw his plea. Judge Fasano's denial of the request was unassailable. Attorney Mandanici provided no good faith basis to support that request. The petitioner voiced his complaint that he misunderstood that he [had] pleaded guilty to felony murder, but the transcript of the plea canvass refutes that statement. "The court finds that the petitioner's request to withdraw his guilty plea was simply a change of mind. Reconsideration or regret, standing alone, cannot validly support a motion to withdraw a guilty plea that was otherwise lawfully entered. [In ruling on the petitioner's prior habeas petition] Judge Fuger found 'the petitioner's statement attacking his confession is self-serving and unworthy of belief' . This court received no credible evidence that Attorney Russell could have presented a stronger case before Judge Fuger to alter that conclusion. "No legal expert testified at the habeas trial that Attorney Russell ineffectively represented the petitioner on that issue or any other issue. The court rules that the petitioner has failed to demonstrate either prong of the Strickland standard with respect to Attorney Russell's assistance at the first habeas trial.... No genuine infirmity surrounding the guilty plea existed." (Citation omitted.) In its evaluation of the merits of an appeal from Judge Fasano's ruling, the court observed that the petitioner failed to demonstrate that any of the grounds as set forth in Practice Book § 39-27 that would support a motion to withdraw a guilty plea could be proven. As the court observed, in light of the petitioner's representations, he conceivably could have attempted to demonstrate under Practice Book § 39-27 (4) that Mandanici had rendered ineffective assistance that resulted in his decision to plead guilty. The court observed, however, that such a claim of ineffective assistance had been raised before and rejected on its merits by Judge Fuger in the prior habeas action and that Judge Fuger's decision had been affirmed on appeal. The court stated: "At the time of his request, the petitioner bore the burden to present facts sufficient to persuade the trial court that his guilty plea should be withdrawn at [that] point in the proceedings . There was no credible evidence presented at the habeas trial before this court to support a claim that such proof was available to Attorney Mandanici at the time the petitioner sought to withdraw his plea. Consequently, Attorney Russell had no professional obligation to raise a claim of ineffective assistance for failing to advise the petitioner of the possibility of appealing from that denial of his request because that appeal was very likely to fail." (Citation omitted; internal quotation marks omitted.) In the present appeal, the petitioner argues that although counsel is not always required to advise a defendant of his or her right to appeal following a guilty plea, Mandanici had a duty to advise him that he could appeal from the denial of his motion to withdraw his guilty plea. The petitioner argues that his conduct during the sentencing hearing demonstrated his interest in pursuing an appeal. Moreover, the petitioner argues, the record reflected that he was prejudiced by Mandanici's failure because he had several nonfrivolous claims to raise in an appeal, which included claims with respect to whether (1) his plea was the result of ineffective assistance of counsel, (2) the sentencing court should have appointed him new counsel for purpose of his motion to withdraw his plea and should have held a full hearing in connection with his motion to withdraw his plea, and (3) he did not fully understand the charges contemplated by the plea agreement. The petitioner acknowledges that, in addressing Judge Fasano, he did not articulate a basis for his motion, but he argues that it was unnecessary for him to do so because he provided a basis in his correspondence to the court and that, in denying the motion to withdraw the guilty plea, the sentencing court failed to address the concerns set forth therein, namely, that he had not understood the nature of the plea agreement and that he was dissatisfied with Mandanici's representation. In Ghant v. Commissioner of Correction , 255 Conn. 1, 7-10, 761 A.2d 740 (2000), our Supreme Court, relying on Roe v. Flores-Ortega , 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), set forth the applicable standard of review under the federal constitution in the determination of whether counsel is ineffective in failing to apprise a defendant of the right to appeal from a guilty plea. The court stated: " Roe has clarified the applicable standard of review under the federal constitution in the determination of whether counsel is ineffective in failing to apprise a defendant of the right to appeal from a guilty plea. The Supreme Court held that, in such a case, counsel has a constitutional obligation to advise a defendant of appeal rights when either (1) the defendant has reasonably demonstrated to counsel his or her interest in filing an appeal, or (2) a rational defendant would want to appeal under the circumstances.... "The Supreme Court began its decision in Roe with a review of Strickland v. Washington, supra, 466 U.S. [at] 687 [104 S.Ct. 2052], in which the court had held that criminal defendants have a sixth amendment right to 'reasonably effective' legal assistance. Under Strickland, a defendant claiming ineffective assistance of counsel must demonstrate that (1) counsel's representation fell below an objective standard of reasonableness . and (2) counsel's deficient performance prejudiced the defendant in that there was a reasonable probability that the result of the proceeding would have been different.... "The Supreme Court in Roe then further articulated that 'this [ Strickland ] test applies to claims, like [the petitioner's in Roe ] that counsel was constitutionally ineffective for failing to file a notice of appeal.' Roe v. Flores-Ortega, supra, 528 U.S. [at] 477 [120 S.Ct. 1029]. '[N]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel.... Rather, courts must judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct . and [j]udicial scrutiny of counsel's performance must be highly deferential .' " (Citations omitted.) Ghant v. Commissioner of Correction , supra, 255 Conn. at 7-8, 761 A.2d 740. "The court in Roe began its analysis with the first part of the Strickland test and enunciated the rule to be applied to ineffective assistance claims concerning the failure to take an appeal. 'In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking . whether counsel in fact consulted with the defendant about an appeal. We employ the term "consult" to [mean] . advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes. If counsel has consulted with the defendant . [c]ounsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal.... If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel's failure to consult with the defendant itself constitutes deficient performance.... And, while States are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented . the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices.' . Roe v. Flores-Ortega, supra, 528 U.S. [at] 478-79 [120 S.Ct. 1029].... "Rejecting a bright line test that would require counsel always to consult with a defendant regarding an appeal, the court in Roe stated: 'We . hold that counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known.... Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal.' . [Id., at] 480 [120 S.Ct. 1029]. "The second part of the Strickland test, as enunciated in Roe, requires the defendant to show prejudice from counsel's deficient performance.... '[T]o show prejudice [when counsel fails to apprise a defendant of his or her appellate rights], a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed.' Id., [at] 484 [120 S.Ct. 1029]. The court further articulated that 'whether a given defendant has made the requisite showing will turn on the facts of a particular case.... [E]vidence that there were nonfrivolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making this determination.' . Id., [at] 485 [120 S.Ct. 1029]." (Citations omitted; emphasis in original; footnote omitted.) Ghant v. Commissioner of Correction , supra, 255 Conn. at 8-10, 761 A.2d 740. Having set forth the court's findings of fact and the legal standard governing the present claim, we turn to an examination of the merits of the petitioner's claim that Mandanici rendered ineffective assistance by failing to advise him concerning his right to appeal and that Russell rendered ineffective assistance by failing to raise such a claim in the prior habeas action. In the present case, there is no factual dispute that Mandanici did not consult with the petitioner concerning his appellate rights following the denial of the motion to withdraw the guilty plea. In determining, under Strickland 's first prong, whether Mandanici had a constitutional obligation to advise the petitioner concerning his right to appeal, we first consider in our plenary review whether the issues arising from the denial of the motion to withdraw the guilty plea had such a degree of merit that a rational defendant would have wanted to appeal. In arguing that Russell rendered ineffective assistance during the prior habeas trial, the petitioner argues that the record supports a finding that a rational defendant would have appealed from Judge Fasano's denial of his motion to withdraw his guilty plea. He asserts that, setting aside what he expressly stated to Judge Fasano when he was asked why he wanted to withdraw his plea, he had alerted the court in a correspondence that his plea was the result of ineffective assistance by Mandanici and that he did not understand the charges contemplated by the plea agreement. At the time that Judge Fasano addressed the petitioner and Mandanici, Judge Fasano stated that he was aware of the petitioner's correspondence. Assuming that, in addition to what the petitioner stated at the sentencing hearing when Judge Fasano afforded him an opportunity to explain his motion, Judge Fasano should have considered the content of any correspondence he had received from the petitioner concerning the motion, the petitioner is unable to demonstrate that the grounds for the motion to withdraw his plea were nonfrivolous in nature. Previously in this opinion, we set forth in detail the habeas court's findings of fact. The habeas court expressly found that the petitioner's motion to withdraw his guilty plea was not related to ineffective representation by Mandanici or any misunderstanding by the petitioner. It is significant that, in its role as fact finder, the habeas court found that the petitioner's motion to withdraw his guilty plea reflected that he simply had changed his mind about the plea . The court found that there was "no credible evidence" to support the petitioner's claim that Mandanici should have been aware of a valid ground on which the petitioner may have based his motion. Consequently, the habeas court found that Russell was not deficient for failing to raise a claim related to Mandanici's assistance. The habeas court made findings of fact that undermine the petitioner's claim that nonfrivolous grounds existed to support an appeal from Judge Fasano's ruling. The petitioner has not demonstrated that the court's findings of fact lack support in the evidence. The petitioner also argues that a nonfrivolous basis to appeal existed because Judge Fasano did not appoint new counsel to litigate the motion to withdraw the guilty plea or conduct an adequate hearing into the motion. Regardless of whether the petitioner in the present case was afforded a full evidentiary hearing or new counsel to assist him in presenting his motion, he was afforded a full opportunity to demonstrate the merits of his motion during the present habeas trial. Specifically, the habeas trial afforded him a full opportunity to demonstrate that a reasonable defendant in his position would have appealed because nonfrivolous grounds for an appeal existed. After examining the evidence presented by the petitioner, however, the habeas court found that he was unable to demonstrate that a nonfrivolous ground for appeal existed because the motion was based not on a defect in Mandanici's representation or confusion about the nature of the charge, but on the fact that the petitioner had changed his mind. The petitioner cannot dispute that such a change of heart concerning the plea is an invalid basis upon which to base a motion to withdraw a plea. This finding is fatal to the petitioner's claim that there were viable grounds to appeal and, thus, that a rational defendant would have wanted to bring an appeal to pursue these grounds. Next, in determining whether Mandanici had a constitutional obligation to advise the petitioner concerning his right to appeal, we consider under our plenary standard of review whether the evidence as a whole reflects that the petitioner had reasonably demonstrated to Mandanici that he was interested in appealing from Judge Fasano's denial of his motion to withdraw the guilty plea. As we stated previously in this opinion, the habeas court did not analyze the petitioner's claim in light of the currently recognized standard as set forth in Roe and did not set forth any findings of fact with respect to this distinct issue. See footnote 6 of this opinion. As a reviewing court, we must rely on the factual findings of the habeas court unless they are not supported by the record. Despite the absence of specific factual findings with respect to this issue, we may examine the evidence to determine whether the petitioner presented evidence on which the habeas court reasonably could have found that such a showing had been made. If such evidence is lacking, the court's failure to make any relevant findings, under the Roe standard, with respect to the issue of whether the petitioner demonstrated an interest in appealing is harmless. At the present habeas trial, the petitioner presented the transcripts from his prior habeas proceeding in 2003. The petitioner's testimony at that prior proceeding does not reflect that he had asked Mandanici about his right to appeal from the denial of his motion to withdraw his guilty plea or had otherwise indicated to Mandanici that he was interested in bringing an appeal. Likewise, during Mandanici's testimony at the prior habeas trial, Mandanici did not testify that the petitioner had asked him about his right to appeal or had otherwise stated that he was interested in bringing an appeal. Rather, Mandanici testified that he did not believe that there were grounds for bringing the motion to withdraw the guilty plea and that the petitioner wanted to withdraw his plea "because he had changed his mind." During his testimony at the present habeas trial, the petitioner explained the reasons why he wanted to withdraw his plea and his view that he did not want to proceed to trial under Mandanici's representation. He stated that, by the time of the sentencing hearing, he had filed a grievance complaint against Mandanici and that his relationship with Mandanici had deteriorated. He testified that prior to his appearance at the sentencing hearing, he had not even discussed his desire to withdraw his plea with Mandanici. The petitioner testified that, after the sentencing hearing and the court's denial of his motion, he did not speak with Mandanici. He testified that Mandanici did not advise him that he could appeal from Judge Fasano's ruling, and, in fact, he and Mandanici did not have any discussions about the topic of an appeal. He testified that he was unaware that he could appeal from that ruling but that he "most likely" would have appealed if he knew that he could do so. At the present habeas trial, Mandanici testified that he could not recall whether he spoke with the petitioner following the sentencing hearing. The petitioner broadly asserts in his appellate brief that his "actions" at the sentencing hearing "reasonably demonstrated that he would be interested in pursuing an appeal." (Internal quotation marks omitted.) Our careful review of the transcript of the sentencing hearing, however, does not reflect that the petitioner made any reference to an appeal or, in lay terms, bringing any type of challenge to Judge Fasano's ruling. Although, at the hearing, the petitioner communicated with the court with respect to the reasons why he believed that he should be permitted to withdraw his guilty plea and expressed his dissatisfaction with Mandanici, none of his statements reasonably may be interpreted to reflect a desire to further pursue the issue. The evidence, therefore, reflects that despite the fact that, during the present habeas trial, he expressed his desire to bring an appeal from Judge Fasano's ruling, there was no evidence that he demonstrated such an interest to Mandanici or inquired to any extent about his appellate rights. Because the evidence, viewed in its entirety, does not support a finding that the petitioner reasonably demonstrated to Mandanici that he was interested in bringing an appeal from Judge Fasano's denial of his motion to withdraw the guilty plea, the petitioner has not demonstrated that, despite the fact that there were not any nonfrivolous grounds for an appeal, Mandanici had a constitutional obligation to advise him about his right to appeal. In light of the foregoing, we conclude that the petitioner is unable to demonstrate that, in the prior habeas action, Russell rendered ineffective assistance by failing to pursue a claim concerning Mandanici's failure to advise him concerning his right to appeal. II Next, the petitioner claims that the court improperly rejected his claim that Russell rendered ineffective assistance in that he failed to present evidence in support of the petitioner's claim that his guilty plea was the result of Mandanici's ineffective assistance. We decline to reach the merits of this unpreserved claim. In support of this claim, the petitioner argues that, at the prior habeas trial, he testified, inter alia, about the ways in which, in his view, Mandanici rendered ineffective assistance. The petitioner argues, however, that, at the prior habeas trial, Russell failed to present testimony from him that would have demonstrated how the deficiencies in Mandanici's representation "impacted his decision to plead guilty, or what would have needed to change in order for the petitioner to have rejected the plea and proceeded to trial." He argues that the judgment of the habeas court should be reversed because Russell's failure to present such testimony deprived him of the effective assistance of habeas counsel. The state argues, and we agree, that the petitioner did not plead this ground in his habeas petition. "It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action.... The principle that a plaintiff may rely only upon what he has alleged is basic.... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.... While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations . it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised." (Internal quotation marks omitted.) Abdullah v. Commissioner of Correction , 123 Conn. App. 197, 202, 1 A.3d 1102, cert. denied, 298 Conn. 930, 5 A.3d 488 (2010) ; see also Arriaga v. Commissioner of Correction , 120 Conn. App. 258, 262, 990 A.2d 910 (2010), appeal dismissed, 303 Conn. 698, 36 A.3d 224 (2012). Thus, we turn to the petitioner's amended petition. In count three of his amended petition, the only count based on Russell's representation, he alleged in relevant part that "[Russell's] performance was deficient because he failed to plead and present evidence and argument in support of the claims" previously set forth in his petition. These claims were, in count one, that Mandanici was ineffective for failing to advise the petitioner that he had the right to appeal from Judge Fasano's denial of his oral motion to withdraw his guilty plea and, in count two, that "[t]he petitioner's defense was adversely affected by [Mandanici's] actual conflict of interest ." (Emphasis added.) In count two, the petitioner alleged that he was prejudiced by a conflict of interest because Mandanici failed to reasonably communicate with him, to adequately investigate the allegations against him, to zealously advocate for him during plea negotiations, and to advise him about his right to appeal from Judge Fasano's denial of his motion to withdraw his guilty plea. Nowhere in the amended petition did the petitioner allege that Russell was deficient for failing to present evidence in support of a claim that his decision to plead guilty was the product of any type of deficiencies in Mandanici's representation generally. In light of the fact that the petitioner did not distinctly raise the current claim in his amended petition, it is unsurprising that the court did not expressly rule on it in its thorough memorandum of decision. "This court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . and was ruled upon and decided by the court adversely to the [petitioner's] claim.... This court is not compelled to consider issues neither alleged in the habeas petition nor considered at the habeas proceeding ." (Internal quotation marks omitted.) Satchwell v. Commissioner of Correction , 119 Conn. App. 614, 619, 988 A.2d 907, cert. denied, 296 Conn. 901, 991 A.2d 1103 (2010) ; see also Greene v. Commissioner of Correction , 131 Conn. App. 820, 822, 29 A.3d 171 (2011), cert. denied, 303 Conn. 936, 36 A.3d 695 (2012). Accordingly, we decline to reach the merits of this claim. III Finally, the petitioner claims that the court improperly rejected his claim that Russell rendered ineffective assistance in his prior habeas action by failing to claim that Mandanici's conflict of interest resulted in the petitioner's guilty plea. We disagree. In rejecting the petitioner's claim, the habeas court stated in relevant part: "The petitioner alleges that . Russell represented him deficiently because he failed to raise the claim that . Mandanici had a conflict of interest in continued representation of the petitioner during his criminal case. The purported basis for that conflict of interest claim was that the petitioner had, on February 19, 2000, filed a complaint against . Mandanici with the Statewide Grievance Committee while the criminal case was pending. That grievance was ultimately dismissed because the committee determined that no misconduct occurred. This allegation of ineffective assistance by habeas counsel fails for multiple reasons. "First, the gist of the petitioner's grievance was that he was dissatisfied with the amount of investigation performed and the lack of communication with the petitioner by . Mandanici. This form of discontent fails to create a conflict of interest requiring the removal of counsel . "Unhappiness with the perceived performance of counsel by a criminal defendant creates no ground for conflict of interest requiring removal of counsel . Insignificant and unsubstantiated criticisms of trial counsel are insufficient to warrant withdrawal by that lawyer . The filing of a grievance based on that perception is likewise insufficient to implicate violation of the defendant's sixth amendment rights and does not disqualify the attorney who is the subject of that grievance from continuing to represent the recalcitrant client . Consequently, the supposed conflict of interest engendered by the lodging of the grievance against . Mandanici afforded a very shaky legal ground on which . Russell could assert such a claim at the earlier habeas proceeding. "Second, the petitioner's later guilty plea waived any conflict of interest claim even if . the ersatz disqualifying circumstance existed. The petitioner pleaded guilty on April 14, 2000, around two months after he grieved . Mandanici. The general rule is that a guilty plea waives all nonjurisdictional defects antecedent to the entering of the plea, including defects asserting constitutional deprivations . Only defects which implicate the subject matter jurisdiction of the court survive a later valid guilty plea, and effects asserting lack of personal jurisdiction over an accused are waived by a subsequent guilty plea. . This waiver rule applies equally to matters raised by way of direct appeal or by collateral attack, such as through a petition for habeas corpus relief ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Then, the court discussed Connecticut Supreme Court and federal court case law in support of the well settled proposition that a later guilty plea waives claims of ineffectiveness of counsel at earlier proceedings unrelated to the taking of a plea. The court correctly observed that, unless an alleged conflict of interest was shown to have rendered a plea itself to be involuntarily or unknowingly made, a claim of a conflict of interest by an accused's attorney is waived for all purposes by virtue of a guilty plea. The court stated: "This court's review of the petitioner's plea hearing transcript discloses that the petitioner entered that plea, under the Alford doctrine, knowingly and voluntarily. Whatever psychological role the petitioner's dissatisfaction with . Mandanici's previous representation may have played in his decision to plead guilty is immaterial. What counts is that the petitioner understood the rights he gave up by pleading guilty, the nature of the charge against him, the strengths and weaknesses of the state's case and his own, the punishments available for that offense, and the terms of the agreed disposition. This court's examination of the record leads it to concur with Judge Fuger's finding on the same point that the petitioner 'freely made the choice to give up his constitutional right to a trial in order to obtain favorable consideration upon sentencing' . "This waiver provides additional support for the conclusion that . Russell acted properly and professionally when he omitted such a dubious claim in the first habeas case." On appeal, the petitioner argues that the court improperly raised the issue of waiver sua sponte and in reliance on that doctrine determined that he was unable to demonstrate that Russell rendered ineffective representation by failing to pursue a claim in the prior habeas action related to Mandanici's conflict of interest. The petitioner accurately observes that the respondent did not allege waiver as a special defense in his return. The petitioner argues that it was improper for the court to have disposed of his claim based on that defense because he was without notice that the court would rely on waiver. He argues that, "[a]lthough the issue of whether waiver must be pleaded by the respondent in a habeas case before a habeas court can dismiss a petition on grounds of waiver has not been directly been addressed by Connecticut courts," appellate case law and Practice Book § 23-30 (b), which requires the respondent to allege in the return "facts in support of any claim . that the petitioner is not entitled to relief," support a determination that a habeas court may not sua sponte raise a special defense and dispose of a claim in reliance thereupon. The petitioner relies heavily on this court's holdings in Diaz v. Commissioner of Correction , 157 Conn. App. 701, 706-707, 117 A.3d 1003 (2015), appeal dismissed, 326 Conn. 419, 165 A.3d 147 (2017), and Barlow v. Commissioner of Correction , 150 Conn. App. 781, 786-87, 93 A.3d 165 (2014). In both Diaz and Barlow , this court concluded that it was reversible error for a habeas court to have sua sponte raised the affirmative defense of procedural default and thereafter to have dismissed a habeas petition on that ground that had not been pleaded by the respondent. Diaz v. Commissioner of Correction , supra, at 706-707, 117 A.3d 1003 ; Barlow v. Commissioner of Correction , supra, at 786-87, 93 A.3d 165. We are not persuaded by the petitioner's argument concerning waiver because, contrary to the petitioner's characterization of the court's analysis, the court's decision does not reflect that it sua sponte either raised an affirmative defense (or a claim that the petitioner was not entitled to relief) or dismissed the petition, in whole or in part, on the basis of such defense or claim. The court did not conclude that the petitioner had waived his claim that Russell had deprived him of ineffective representation during the prior habeas action. Under Strickland , it was appropriate for the court to evaluate what prejudice, if any, resulted to the petitioner as a result of Russell's alleged deficient performance. The court, in evaluating whether the petitioner met his burden of demonstrating that Russell had prejudiced him by failing to raise a claim related to Mandanici's alleged conflict of interest relied, in part, on its conclusion that the claim that Russell did not raise would have been waived by virtue of the petitioner's guilty plea. Thus, the court considered and rejected the petitioner's claim against Russell on its merits, concluding that the waiver doctrine provided "additional support" for its determination that the underlying claim against Mandanici that Russell did not raise at the prior proceeding was "dubious," at best, when viewed in light of state and federal authority concerning what types of claims may be raised following a valid guilty plea. The habeas court did not determine that the petitioner's claim arising from Russell's representation was waived nor did it dismiss that portion of the petition on that ground. Additionally, the petitioner argues that, even if the court properly considered the issue of waiver, it improperly relied on that doctrine because his testimony at the habeas trial reflected that the breakdown in his relationship with Mandanici and his concern that Mandanici would not represent him zealously at trial was "the catalyst for his decision to accept the guilty plea." The petitioner argues that the evidence presented, including his testimony, demonstrated "a direct nexus" between the conflict of interest involving Mandanici and his guilty plea. The petitioner urges us to conclude that because he was able to prove this factual link between the conflict of interest and his plea, such a showing necessarily provided him with a valid ground to withdraw his plea under Practice Book § 39-27. Accordingly, the petitioner argues, the court should not have concluded that the conflict of interest claim was not strong and, thus, that Russell did not deprive him of his right to effective representation by not raising it in the prior habeas action. In this aspect of his argument, the petitioner urges us to conclude that, to the extent that the court did not view his testimony and other evidence concerning his dissatisfaction with Mandanici as proof that Mandanici's conflict of interest was inherently related to his guilty plea, the court's findings are clearly erroneous. As we have discussed previously in this opinion, the court recognized that it was significant to determine whether the claimed conflict of interest somehow rendered the petitioner's plea invalid. The court explained in its memorandum of decision, however, that "[t]he petitioner's request to withdraw his guilty plea was simply a change of mind. Reconsideration or regret, standing alone, cannot validly support a motion to withdraw a guilty plea that was otherwise lawfully entered." The court unambiguously found that the petitioner's plea was knowingly and voluntarily made, explicitly rejecting the petitioner's argument that his dissatisfaction with Mandanici and the issues surrounding the filing of his grievance complaint influenced his decision to plead guilty. In making this finding, which is fatal to the petitioner's claim, the court stated that it had examined the record and, in particular, the transcript of the plea hearing of April 4, 2000. We reiterate that we "cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous ." (Internal quotation marks omitted.) Gerald W . v. Commissioner of Correction , supra, 169 Conn. App. at 465, 150 A.3d 729. "[A] finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Diaz v. Commissioner of Correction , 174 Conn. App. 776, 786, 166 A.3d 815, cert. denied, 327 Conn. 957, 172 A.3d 204 (2017). "[T]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Bennett v. Commissioner of Correction , 182 Conn. App. 541, 555-56, 190 A.3d 877 (2018). The petitioner relies on the weight of his testimony, in which he attempted to demonstrate that his plea was not knowingly and voluntarily made, as well as other evidence presented at the habeas trial to demonstrate that at the time of the plea he was dissatisfied with Mandanici's representation. The court, having had a firsthand vantage point from which to observe the petitioner testify about the plea and assess the truthfulness of his testimony, was not obligated to accept as true the petitioner's version of the facts, specifically, that he was compelled to plead guilty by virtue of Mandanici's ineffectiveness and the filing of the grievance complaint. The court relied on the transcript of the plea hearing, which reflects that the petitioner had been thoroughly canvassed by Judge Fasano and, despite his expressions of dissatisfaction with Mandanici, nonetheless indicated, among other things, that he was agreeable to the plea agreement, that he was satisfied with Mandanici's advice concerning the plea, that he believed that he was doing the right thing by pleading guilty, that he understood the rights he was giving up by pleading guilty, that he was pleading guilty voluntarily, that he understood the state's case against him, that he understood the punishment he was facing if he proceeded to trial, and that he was motivated to plead guilty rather than risk receiving a heavier penalty following a trial. Thus, the court's factual finding concerning the voluntariness of the plea is supported by evidence in the record. We are not persuaded that a mistake has been made. The judgment is affirmed. In this opinion the other judges concurred. See North Carolina v. Alford , 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The petitioner was put to plea for "felony murder in violation of . § 53a-54c." As part of its canvass, the court asked the petitioner if had an opportunity to discuss with his attorney the elements of the offense and the evidence on which the state relied. Also, the court asked the petitioner if he understood the elements of the offense and the evidence on which the state relied. To both inquiries, the petitioner replied, "Yes." Further, the court asked Mandanici if he was satisfied that the petitioner understood the elements of the offense and the evidence on which the state relied. Mandanici replied affirmatively. The court did not further discuss the offense or the elements thereof. None of the petitioner's claims in his amended petition for a writ of habeas corpus is based on an inadequacy in the court's canvass and, thus, such a claim is not before us. Nonetheless, we observe that, to dispel any possible confusion concerning the nature of the offense in cases such as the present case, it would be helpful for trial courts to clarify, during their plea canvasses, that when an accused pleads guilty to "felony murder" under the felony murder statute, § 53a-54c, he is, in fact, pleading guilty to a type of murder, other than intentional murder, and is, accordingly, subject to the same penalties that may be imposed for the crime of murder. In the grievance complaint, the petitioner alleged in general terms that Mandanici failed to investigate his case and failed to communicate with him concerning his defense. The statewide grievance committee concluded that Mandanici had not breached ethical standards in his representation of the petitioner and, therefore, dismissed the complaint. At trial, the petitioner presented evidence that by motion dated July 28, 2016, he sought permission from this court to file a late appeal from Judge Fasano's May 26, 2000 denial of his oral motion to withdraw his guilty plea, as well as an order from our Supreme Court, dated September 27, 2016, denying the motion. We will set forth the basis for the court's decision in the context of the claims raised on appeal. In its analysis of the petitioner's claim of whether Russell deprived him of his right to effective representation by failing to claim in the prior habeas action that Mandanici deprived him of his right to effective representation by failing to advise him of his right to appeal from Judge Fasano's denial of his motion to withdraw his guilty plea, the court relied on what it believed to be authorities that governed an analysis of the claim in 2003, when Russell represented the petitioner, namely, Bunkley v. Commissioner of Correction , 222 Conn. 444, 454, 610 A.2d 598 (1992), and Copas v. Commissioner of Correction , 234 Conn. 139, 151, 662 A.2d 718 (1995). The court correctly recognized that these cases later were overruled by Small v. Commissioner of Correction , 286 Conn. 707, 723, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz , 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008), and Carraway v. Commissioner of Correction , 317 Conn. 594, 600 n.6, 119 A.3d 1153 (2015), respectively. The parties submit, and we agree, that the proper framework for evaluating an ineffective assistance of counsel claim based on counsel's failure to advise a defendant about his appellate rights following a guilty plea is based on an evaluation of whether counsel's deficient performance deprived a defendant of an appeal that he would have taken . This framework, which we will discuss in detail, was set forth in Roe v. Flores-Ortega , 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and it has been followed by our appellate courts. See, e.g., Ghant v. Commissioner of Correction , 255 Conn. 1, 7, 761 A.2d 740 (2000) ; Shelton v. Commissioner of Correction , 116 Conn. App. 867, 878-79, 977 A.2d 714, cert. denied, 293 Conn. 936, 981 A.2d 1080 (2009). This is the standard under which we will evaluate the petitioner's claim. The fact that the habeas court utilized a different standard in its evaluation of the present claim does not affect our plenary evaluation of the claim. As we explain in our subsequent analysis, the habeas court's detailed factual findings, which are supported by the evidence, amply support a conclusion that the petitioner is unable to prevail under the currently recognized standard. Moreover, to the extent that the petitioner argues that the court erroneously relied on Copas in its analysis of the petitioner's claim that Russell rendered ineffective representation by failing to pursue a claim related to an alleged conflict of interest on the part of Mandanici, the habeas court's memorandum of decision does not support the claim. Practice Book § 39-27 provides: "The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows: "(1) The plea was accepted without substantial compliance with Section 39-19; "(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed; "(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered; "(4) The plea resulted from the denial of effective assistance of counsel; "(5) There was no factual basis for the plea; or "(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant." We observe that, in Roe , the United States Supreme Court rejected a resort to a bright line rule that counsel must always consult with a defendant regarding an appeal. Roe v. Flores-Ortega , supra, 528 U.S. at 480, 120 S.Ct. 1029. Rather than adhering to what it considered to be per se rules governing the conduct of defense counsel, the court crafted an approach that focused on whether the failure to consult with a defendant regarding an appeal was reasonable in light of the particular circumstances of each case. Id., at 481, 120 S.Ct. 1029. We acknowledge, however, that the court in Roe stated that it was "the better practice for counsel routinely to consult with the defendant regarding the possibility of an appeal." Id., at 479, 120 S.Ct. 1029. The record reflects that at the sentencing hearing on May 26, 2000, Judge Fasano invited the petitioner to indicate a basis on which his motion to withdraw the plea should be granted. The petitioner stated that Mandanici was aware that he did not commit murder, that the confession on which the state relied was "bull shit," and that he believed that he would "get a lesser charge." When the petitioner stated that he was not pleading to murder, Judge Fasano reminded the petitioner that such a plea already had been made and accepted by the court. The correspondence on which the petitioner relies is addressed to Judge Fasano and is dated May 8, 2000. In this handwritten correspondence, the petitioner stated, in relevant part, that he was "unaware of what was really going on" with respect to the plea, Mandanici did not explain things adequately to him with respect to the plea, Mandanici did not communicate effectively with him, he believed that he was forced into making a plea, he no longer wanted to enter into a plea agreement, he wanted to proceed to trial, and he wanted an attorney appointed to represent him at trial. The defendant relies on this court's reasoning in State v. Simpson , 169 Conn. App. 168, 184-204, 150 A.3d 699 (2016). In Simpson , a direct appeal, this court determined that the trial court improperly had failed to conduct an evidentiary hearing on the defendant's motion to withdraw his guilty plea based on his representation that he did not understand the nature of the charge to which he pleaded guilty and that the trial court improperly had failed to inquire into his request for new counsel. Id. Following this court's decision, our Supreme Court granted certification to appeal. State v. Simpson , 324 Conn. 904, 151 A.3d 1289 (2016). Following oral argument in the present appeal, our Supreme Court officially released its decision reversing this court's judgment. State v. Simpson , 329 Conn. 820, 189 A.3d 1215 (2018). Our Supreme Court concluded that the trial court had conducted an adequate hearing on the motion to withdraw the guilty plea and that an evidentiary hearing was unnecessary. Id., at 842, 189 A.3d 1215. Also, our Supreme Court concluded that the trial court was not required to conduct a hearing on the defendant's request for new counsel. Id. The defendant's reliance on this court's decision in Simpson is unavailing, and a careful review of our Supreme Court's decision in Simpson does not lend any support to the defendant's claim that he had advanced a nonfrivolous ground in connection with his motion to withdraw his guilty plea. At the present habeas trial, the petitioner testified that several days following the sentencing hearing, he "tried to reach" Mandanici. It is unclear from the petitioner's testimony, however, whether he actually spoke with Mandanici following the sentencing hearing or why he wanted to speak to Mandanici. The petitioner testified, however, that approximately one year following the sentencing hearing, he contacted the public defender's office in an attempt to obtain information about how to "withdraw the plea," but he was advised that the time period in which to appeal from Judge Fasano's ruling had expired. We observe, however, that the petitioner briefly mentioned the present claim in his posttrial brief, in which he argued that, in his prior habeas action, he bore the burden of demonstrating that he was prejudiced by Mandanici's ineffective assistance by proving that, if Mandanici had not performed deficiently, he would have rejected the state's plea offer and proceeded to trial. He argued in relevant part that Russell was ineffective for his failure "to present testimony that he would not have [pleaded] guilty if [he had been] properly represented [by Mandanici]." Although the petitioner made this argument in his posttrial brief, he did not distinctly raise it before the habeas court. "Claims raised for the first time in posttrial briefs are not reviewable by the habeas court or by this court on appeal." (Internal quotation marks omitted.) Antwon W . v. Commissioner of Correction , 172 Conn. App. 843, 877, 163 A.3d 1223, cert. denied, 326 Conn. 909, 164 A.3d 680 (2017). Our conclusion that the petitioner's second claim is not based on ineffective representation, but on a conflict of interest, is bolstered by the fact that, in count two of the amended petition, the petitioner alleged that his claim, based on the existence of a conflict of interest, was not previously raised. As we stated previously in this opinion, one of the grounds of the petitioner's prior habeas petition, in 2003, was that Mandanici rendered ineffective assistance and, because of this constitutional violation, he should be permitted to withdraw his guilty plea. Presumably, if the petitioner believed that the habeas court had over-looked this claim, he could have asked the court to address the claim by filing a postjudgment motion. We observe that, to the extent that the petitioner believes that in the present habeas action he presented credible evidence, including his own testimony, that demonstrated that, apart from any conflict of interest on Mandanici's part, defective representation by Mandanici resulted in his guilty plea, we observe that the court clearly indicated in its decision that it was not persuaded by the petitioner's evidence in this regard. In addressing the issue of whether Mandanici had a colorable basis upon which to bring a motion to withdraw the petitioner's guilty plea, the court considered whether, under Practice Book § 39-27 (4), the petitioner could have demonstrated that "[t]he plea resulted from the denial of effective assistance of counsel ." The court expressly found that the petitioner had not presented any "credible evidence" in the present proceeding that there was a sound basis for Mandanici to bring a motion to withdraw the petitioner's guilty plea. This finding is significant in terms of the present claim because, even if the claim at issue concerning Russell's failure to present certain testimony from the petitioner at the prior habeas trial had been properly raised and considered by the trial court, the habeas court's finding, after hearing that testimony from the petitioner at the present trial, that his plea was not the result of any deficiencies on Mandanici's part necessarily undermines the petitioner's claim that he had been prejudiced by Russell's failure to present the petitioner's testimony in this regard at the prior habeas trial. Thus, even if the court should have addressed a claim of this nature, we are convinced that its failure to do so was harmless in light of its other findings.

12505054

Chandra BOZELKO v. Tina Sypek D'AMATO et al.

Bozelko v. D'Amato

2018-11-27

AC 40466

87

92

199 A.3d 87

199

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:42.438369+00:00

Fastcase

Chandra BOZELKO v. Tina Sypek D'AMATO et al.

Chandra BOZELKO v. Tina Sypek D'AMATO et al. AC 40466 Appellate Court of Connecticut. Argued September 21, 2018 Officially released November 27, 2018 Chandra Bozelko, self-represented, the appellant (plaintiff). Michele C. Wojcik, for the appellees (defendants). Sheldon, Keller and Bright, Js.

1860

11569

SHELDON, J. In this legal malpractice action, the plaintiff, Chandra Bozelko, appeals from the summary judgment rendered by the trial court in favor of the defendants, Tina Sypek D'Amato and the Law Offices of Tina Sypek D'Amato. The trial court granted the defendants' motion for summary judgment on the ground that the plaintiff had failed to disclose an expert witness in support of her malpractice claim. The plaintiff challenges the summary judgment on the grounds that expert testimony was unnecessary to prove her claim of legal malpractice because her allegations against D'Amato fit the gross negligence exception to the expert testimony requirement for legal malpractice claims and expert testimony is not required when a legal malpractice case is tried to the court rather than to a jury. Because the plaintiff failed to disclose an expert witness who would testify that her alleged injury was caused by D'Amato's alleged grossly negligent representation of her, we affirm the judgment of the trial court. The following procedural history is relevant to this appeal. In October, 2007, following a criminal jury trial, the plaintiff was convicted of fourteen offenses and acquitted of eight others. On November 19, 2007, when the court, Cronan, J ., granted the motion of the plaintiff's prior counsel to withdraw and continued the plaintiff's sentencing hearing to December 7, 2007, so that she might hire new counsel to represent her at that hearing, it expressly informed the plaintiff that she would be sentenced on December 7, 2007, that it would not consider any further requests for continuances of sentencing beyond that date, and, thus, that she should be ready to be sentenced on that date. Thereafter, at some point in late November, the plaintiff retained D'Amato to represent her. D'Amato filed a motion for a new trial on behalf of the plaintiff. On December 7, 2007, before proceeding with the previously scheduled sentencing hearing, the court heard argument on the plaintiff's motion for a new trial. Despite D'Amato's request for an evidentiary hearing on that motion, which she asked to be held at a later date, the court heard argument on the motion and denied it from the bench without an evidentiary hearing. Thereafter, the court proceeded with the sentencing hearing, at which it heard from the assistant state's attorney and D'Amato, offered the plaintiff the opportunity to speak on her own behalf, which she declined, and then sentenced the plaintiff to a total effective sentence of ten years imprisonment, execution suspended after five years, and four years of probation. The plaintiff's convictions were later upheld on direct appeal. State v. Bozelko , 119 Conn. App. 483, 510, 987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d 867 (2010), cert. denied, 571 U.S. 1215, 134 S.Ct. 1314, 188 L.Ed.2d 331 (2014). The plaintiff filed this action against the defendants by way of a complaint dated July 15, 2011, alleging legal malpractice, breach of fiduciary duty and negligent infliction of emotional distress. The trial court granted the defendants' motion to strike the plaintiff's claims of breach of fiduciary duty and negligent infliction of emotional distress. The defendants thereafter moved for summary judgment on the plaintiff's legal malpractice claim against them on the ground that the plaintiff had failed to disclose an expert witness to testify that D'Amato had breached the standard of care in representing the plaintiff or that any such breach had proximately caused any of the plaintiff's alleged injuries. In opposition to the defendants' motion for summary judgment, the plaintiff argued that her allegations fit the gross negligence exception to the expert testimony requirement for legal malpractice claims. The plaintiff also argued that expert testimony was unnecessary in this case because the case would not be tried to a jury but, rather, to the court, which assertedly had no need for expert testimony to help it understand and decide the merits of her legal malpractice claims because it was "not a layperson." The court rejected the plaintiff's arguments, concluding that D'Amato had not been grossly negligent in her representation of the plaintiff and, thus, that the plaintiff's failure to disclose an expert was fatal to her legal malpractice claim. The court therefore rendered summary judgment in favor of the defendants, and this appeal followed. We begin with general principles of law and the standard of review. " Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.... Our review of the trial court's decision to grant [a] motion for summary judgment is plenary.... Summary judgment in favor of a defendant is proper when expert testimony is necessary to prove an essential element of the plaintiff's case and the plaintiff is unable to produce an expert witness to provide such testimony.... "Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . Generally, a plaintiff alleging legal malpractice must prove all of the following elements: (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation ; and (4) damages.... "The essential element of causation has two components. The first component, causation in fact, requires us to determine whether the injury would have occurred but for the defendant's conduct.... The second component, proximate causation, requires us to determine whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries.... That is, there must be an unbroken sequence of events that tied [the plaintiff's] injuries to the [defendant's conduct].... This causal connection must be based [on] more than conjecture and surmise.... [N]o matter how negligent a party may have been, if his negligent act bears no [demonstrable] relation to the injury, it is not actionable . "The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection.... In legal malpractice actions arising from prior litigation, the plaintiff typically proves that the . attorney's professional negligence caused injury to the plaintiff by presenting evidence of what would have happened in the underlying action had the [attorney] not been negligent. This traditional method of presenting the merits of the underlying action is often called the case-within-a-case.... More specifically, the plaintiff must prove that, in the absence of the alleged breach of duty by her attorney, the plaintiff would have prevailed [in] the underlying cause of action and would have been entitled to judgment.... To meet this burden, the plaintiff must produce evidence explaining the legal significance of the attorney's failure and the impact this had on the underlying action." (Citations omitted; footnote omitted; internal quotation marks omitted.) Bozelko v. Papastavros , 323 Conn. 275, 282-84, 147 A.3d 1023 (2016). Here, the plaintiff has abandoned any claim that the sentence that she received was enhanced by D'Amato's representation of her at her sentencing hearing. She is not claiming that but for D'Amato's allegedly gross negligence, she would have received a better or different sentence from the court. Rather, her claim focuses exclusively on certain emotional and inconvenience costs she claims to have arisen from D'Amato's alleged failure to advise her that she would be sentenced on December 7, 2007. She claims that "what would have been different would have been [her] mindset and personal preparation for the day." The plaintiff argued to this court that her claim is that D'Amato was grossly negligent in telling her that she might not be sentenced on December 7, 2007, and that because of that representation, she was surprised when she was, in fact, sentenced and remanded to the custody of the Commissioner of Correction on that day. Even if this court were to assume that D'Amato did not advise the plaintiff that she would be sentenced on December 7, 2007, and that she was grossly negligent in not doing so, the plaintiff has failed to show that such alleged negligence caused her to be unprepared for sentencing on that date. This is because the sentencing court was unequivocal in its advisement to the plaintiff that she would be sentenced on December 7, 2007, regardless of who her attorney was at that time, that requests for further continuances would not be considered, and that she should be ready to be sentenced on that date. The plaintiff has failed to demonstrate either required component of causation-that she would have been prepared for sentencing on December 7, 2007, but for D'Amato's conduct, or that D'Amato's conduct was a substantial factor in causing her to be unprepared for sentencing on that day. There is a clear absence of an unbroken sequence of events that tied the plaintiff's injuries to D'Amato's conduct, and the causal link between the alleged negligence of D'Amato and the plaintiff's alleged injuries is not so obvious as to negate the need for expert testimony on that issue. We thus agree with the trial court that the plaintiff's failure to disclose an expert witness was fatal to her legal malpractice claim. Therefore, the trial court properly rendered summary judgment in favor of the defendants. The judgment is affirmed. In this opinion the other judges concurred. The plaintiff was convicted of offenses charged in four separate case files. State v. Bozelko , 119 Conn. App. 483, 485, 987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d 867 (2010), cert. denied, 571 U.S. 1215, 134 S.Ct. 1314, 188 L.Ed.2d 331 (2014). In the first case, the plaintiff was convicted of attempt to commit larceny in the first degree, identity theft in the first degree, attempt to commit illegal use of a credit card, and forgery in the third degree. Id., at 485-86, 987 A.2d 1102. In the second case, the plaintiff was convicted of larceny in the third degree, identity theft in the third degree, illegal use of a credit card, and forgery in the third degree. Id., at 486, 987 A.2d 1102. In the third case, the plaintiff was convicted of attempt to commit larceny in the fifth degree, attempt to commit illegal use of a credit card, and identity theft in the third degree. Id. In the fourth case, the plaintiff was convicted of larceny in the fifth degree, illegal use of a credit card, and identity theft in the third degree. Id.

12503305

Shara ROCCO et al. v. Abdulhamid D. SHAIKH et al.

Rocco v. Shaikh

2018-09-18

AC 39774

366

379

196 A.3d 366

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

Shara ROCCO et al. v. Abdulhamid D. SHAIKH et al.

Shara ROCCO et al. v. Abdulhamid D. SHAIKH et al. AC 39774 Appellate Court of Connecticut. Argued March 19, 2018 Officially released September 18, 2018 Jon L. Schoenhorn, Hartford, with whom, on the brief, were Kathryn A. Mallach and Magdalena Narozniak, law student intern, for the appellants (defendants). Garrett S. Flynn, West Hartford, for the appellees (plaintiffs). Keller, Elgo and Bright, Js.

6453

39957

KELLER, J. The defendants, Abdulhamid D. Shaikh and Rukaiyabanu A. Shaikh, appeal from the judgment of the trial court rendered in favor of the plaintiffs, Shara Rocco and Patrick Rocco. On appeal, the defendants claim that (1) the plaintiffs lacked standing to maintain their causes of action because Shara Rocco transferred her interest in the subject property to a trust before the court rendered judgment; (2) the court lacked subject matter jurisdiction over count two of the plaintiffs' complaint because the statutory grounds on which the plaintiffs relied did not apply to the type of lien at issue in the present case; and (3) we should exercise our supervisory authority over the administration of justice to reverse the judgment because it was procured by fraud, both by the plaintiffs and by the defendants' former attorney. We affirm the judgment of the trial court. The following procedural history is relevant to the present appeal. In November, 2015, the plaintiffs commenced the underlying action against the defendants. In their six count complaint, dated October 29, 2015, the plaintiffs alleged that, prior to the dissolution of their marriage, they resided at 124 Steeple View Drive in the Kensington section of Berlin (property), and that Shara Rocco was the record owner of the property. The plaintiffs further alleged: "As part of the divorce process, the [plaintiffs] agreed to sell the [property] and divide the net proceeds of the sale. The [plaintiffs] agreed that until the [property] was sold, [Patrick Rocco] would be responsible for certain expenses associated with the [property], including real estate taxes, utilities, maintenance fees and insurance.... "The [plaintiffs] were motivated to sell the [property], not only to obtain the sale proceeds, but also to stop having to incur further carrying costs. The [plaintiffs] were eager to show the [property] in the spring and summer, which is customarily regarded as the best time to sell [property] in Connecticut.... [They] listed for sale the property through a real estate agent. Numerous potential buyers expressed interest in purchasing the property.... "On or about April 6, [2015], the [plaintiffs'] real estate agent showed the property to the [defendants]. On the same day, the [defendants] made an offer to purchase the property at a price lower than the asking price. The [defendants] expressly said that their offer was to purchase the [property] 'as is,' which is understood in the real estate business to mean that the sellers would not offer reductions in the selling price based on conditions with the house or property.... "In the weeks following April 6, [2015], the [plaintiffs] and the [defendants] negotiated the price for the property. During those discussions the [defendants] repeated their offer to purchase the [property] 'as is.' . "On or about April 15, 2015, the [plaintiffs] and the [defendants] agreed upon a purchase price of $577,500.... The [plaintiffs] agreed to accept the [defendants'] offer not only because of the price, but also because the [defendants'] offer lacked many contingencies often found in real estate contracts.... As memorialized in the contract for the purchase and sale of the property . the [defendants] agreed to purchase the [property] for cash . the [defendants] did not condition their purchase . on the sale of their existing house . and, as discussed repeatedly during the discussions leading up to the execution of the . contract, the [defendants] agreed to purchase the [property] 'as is.' " The plaintiffs further alleged that the parties' contract, executed on April 15, 2015, conspicuously included language that the property was being sold "as is" and that the contract permitted the defendants to terminate the contract in the event that an inspection revealed any serious issues with the property. That provision of the contract, however, provided that the defendants' right to terminate expired if it was not exercised within twenty-four days of the signing of the parties' contract. Additionally, the plaintiffs asserted: "On or before May 5, 2015, the [defendants] forwarded to the [plaintiffs'] real estate agent a copy of a home inspection report. The [defendants] asked for a price reduction based on issues purportedly found by the inspector and set forth in the report.... The real estate agent reminded the [defendants] that they agreed to purchase the [property] on an 'as is' basis and that there would be no reduction in the price based on issues set forth in the report. The [defendants] responded and said that they understood.... "On May 11, 2015, after a week of the [defendants'] repeated requests for credits (which the real estate agent rejected), the [defendants] agreed that their deposits [with the real estate agent totaling $10,000] became firm (i.e., nonrefundable) because the May 9 termination deadline had passed. The [defendants] said that they were moving forward with the purchase." Prior to the closing on June 2, 2015, "historically significant rainstorms" moved through the area where the property was located, thereby resulting in the accumulation of water on the property. "Members of the [defendants'] family visited the property for a walk-through on the morning of June 2. Just hours after the walkthrough, the defendants told the real estate agent that they would not close on the property on that day and that the [defendants] would not purchase the property unless the plaintiffs reduced the purchase price of the [property] based on purported 'drainage issues.' Later in the day, the [defendants] demanded that the price of the [property] be reduced by $17,500 on account of the purported drainage issues.... "The [defendants] persisted in this demand even though they were reminded that the property was being sold 'as is' and that even if drainage issues were relevant to the sale price (which they were not), no water entered the house and the wet area drained within twenty-four hours of the historically significant rainstorm ." Relying on the "as is" provision of the contract, the plaintiffs declined to deviate from the contract's terms, and the defendants have refused to purchase the property "as is" for the agreed upon purchase price memorialized in the contract. The plaintiffs also contended that, until the defendants repudiated the contract, they were ready, willing, and able to convey the property to the defendants for the agreed upon price of $577,500, less deposits already received. In addition to suffering damages in the form of lost proceeds from the sale of the property for the purchase price set forth in the contract, the plaintiffs alleged that they continued to bear the expenses associated with owning the property, including expenses related to taxes, utilities, insurance, maintenance, attorney's fees, and mortgage charges. The plaintiffs attempted to mitigate their damages by relisting the property for sale. In this regard, they alleged: "New buyers . offered to purchase the property, and on August 25, 2015, the [plaintiffs] and the new buyers executed a contract for sale for the property . [The contract with the new buyers] obligated the [plaintiffs] to convey title in fee simple to the new buyers, free of any liens.... Before the [plaintiffs could close on the sale of the property to the new buyers, the [defendants] caused a copy of [the contract entered into by the plaintiffs and the defendants] to be recorded in the Berlin land records . When the new buyers' counsel performed a title search on the property . counsel discovered the [defendants'] filing. On or about September 29, 2015, the new buyers' counsel told the [plaintiffs'] agent that the [defendants'] filing constituted a cloud on the title of the property that precluded the new buyers from purchasing the property. Among other things, the new buyers' title insurance company refused to insure the property because of the [defendants'] land records filing.... "The [plaintiffs], through counsel, made diligent, good faith efforts to attempt to have the [defendants] remove the [defendants'] land records filing from the Berlin land records. These included repeated communications to the [defendants'] counsel and offering additional inducements that the [plaintiffs] were not obligated to make. On or about September 11, 2015, the [plaintiffs'] counsel notified the [defendants] in writing that the [defendants'] land records filing constituted an improper cloud on the title to the property and sent to the [defendants'] counsel a document for the [defendants'] execution that would release the [defendants'] land record filing from the Berlin land records." The plaintiffs further alleged that the defendants consistently have refused to remove the filing from the land records and have indicated that they intend to encumber the plaintiffs' property. As a result of the filing, the plaintiffs asserted that they have suffered damages, "including the lost opportunity to sell the property to the new buyers," as well as the varied expenses related to their continued ownership of the property. Relying on the foregoing factual allegations, the plaintiffs set forth six causes of action. In count one, the plaintiffs sought to quiet title under General Statutes § 47-31. They alleged that Shara Rocco acquired fee simple title to the subject property on November 14, 2013, and that she held title to the property. In relevant part, the plaintiffs asserted: "Shara Rocco seeks a declaration that her ownership interest in the property is unaffected by the [defendants'] land records filing and that the [defendants'] land records filing fails to establish any estate, interest, or encumbrance on the property." In count two, the plaintiffs sought to discharge an invalid lien under General Statutes § 49-13 and 49-92e. They alleged that the defendants' land records filing "is an improper and invalid encumbrance on the property," and that the defendants wrongfully have refused to release the filing. The plaintiffs sought "a judicial declaration that the [defendants'] land records [filing] is invalid, plus an award of costs, attorney's fees, statutory and actual damages, and other damages as to which the [plaintiffs] are entitled." In count three, sounding in "slander to title," the plaintiffs alleged in relevant part that the defendants' land records filing "is a false statement" that is meant to convey that the defendants have a legal or equitable interest in the property and that it has prevented the plaintiffs from selling the property. The plaintiffs alleged in relevant part that the defendants are acting in a "wilful, wanton, and malicious" manner by not removing the land records filing, and that they are doing so in an effort to coerce the plaintiffs to submit to "unjustified demands for inspection related adjustments" to which they are not entitled under the contract. The plaintiffs alleged that the defendants' conduct toward them was not the result of an innocent mistake. In count four, which sounds in tortious interference, the plaintiffs incorporated the previous allegations and further alleged in relevant part that after the plaintiffs and the new buyer entered into a valid contract on August 25, 2015, the defendants, on that same date, made the filing on the land records "for the malicious purpose of causing [Shara Rocco's] contract with the new buyers to terminate, which it in fact did as a direct and proximate result of the [defendants'] wrongful conduct." Moreover, the plaintiffs alleged that "[t]he [defendants] know that Shara Rocco wants to sell the property . but cannot do so because of the [defendants'] land record[s] filing." They allege that these facts establish that the defendants tortiously interfered with their actual and prospective contractual rights. In count five, the plaintiffs alleged that the defendants' actions were in violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The plaintiffs, however, subsequently withdrew this count of their complaint. In count six, which sounds in breach of contract, the plaintiffs alleged in relevant part that the defendants repudiated the parties' contract, the plaintiffs appropriately treated the repudiation as a default, and the plaintiffs are entitled under the contract to retain deposits made by the defendants as liquidated damages to compensate them for the defendants' conduct in breaching the contract. In their prayer for relief, the plaintiffs requested compensatory damages, consequential damages, common-law punitive damages, common-law attorney's fees, prejudgment and postjudgment interest, and any further relief that the court deemed just and proper. They also sought statutory damages under § 42-110a et seq., but they later withdrew that request. On November 13, 2015, pursuant to Practice Book § 17-20, the plaintiffs filed a motion requesting that the defendants be defaulted for failing to appear. On November 20, 2015, the motion for default was granted. Represented by counsel, the defendants did not file an appearance until January 11, 2016. At that time, they also filed a motion to dismiss the action. On March 24, 2016, the court denied the defendants' motion to dismiss. On April 26, 2016, pursuant to Practice Book § 17-32, the plaintiffs filed a motion for default for failure to plead. Thereafter, on May 3, 2016, the defendants filed a motion for an extension of time in which to plead. The court motion for default was denied, and the court ordered that any answer or responsive pleading be filed on or before May 12, 2016, and that the trial would be held on June 1, 2016. On June 2, 2016, the court ordered that the defendants had to file an answer prior to noon on June 6, 2016, and that the trial in the matter was rescheduled to June 30, 2016. Thereafter, over the plaintiffs' objection, the court granted the defendants additional time in which to file their answer. Upon motion of the defendants, the court granted the defendants a "final extension" of time in which to plead, until 4 p.m., on June 24, 2016. On June 24, 2016, the defendants filed a request to revise totaling eighty-five pages. The court rejected the filing under Practice Book § 10-7 and ordered the defendants to file an answer by 5 p.m., on June 28, 2016. The defendants did not file a responsive pleading. On June 29, 2016, the plaintiffs filed a motion requesting that the defendants be defaulted for their failure to plead and that the trial, scheduled for June 30, 2016, be converted into a hearing in damages. The court held a hearing on the plaintiffs' motion, following which it entered a default against the defendants for failing to comply with its order. The court scheduled a hearing in damages for July 6, 2016. On June 30, 2016, the plaintiffs filed a certificate of closed pleadings. On July 5, 2016, the defendants moved to set aside the default. The court denied the motion and sustained the plaintiffs' objection. The hearing in damages took place on July 20, 2016. On that day, the defendants filed a three count counterclaim against the plaintiffs, sounding in breach of contract, misrepresentation, and specific performance. On July 28, 2016, the plaintiffs moved to strike all counts of the counterclaim. On September 13, 2016, the court granted the motion to strike. On September 28, 2016, the court rendered judgment in favor of the plaintiffs. The court subsequently amended and clarified its judgment to reflect that, as against both defendants, the court awarded monetary damages in favor of the plaintiffs in the amount of $30,996.22, plus attorney's fees in the amount of $60,862. It also awarded postjudgment interest at 5 percent. The court found that Shara Rocco was the record owner of the property at issue as of July 20, 2016, and that neither defendant had any right, title, or interest in the property or any portion thereof. Further, in addition to its $91,858.22 award of monetary damages in favor of the plaintiffs, the court ruled that the defendants' $10,000 deposit, which had been given to the real estate agency that represented the parties in connection with the sale of the property, was to be delivered to the plaintiffs. The defendants filed the present appeal on November 1, 2016. On November 30, 2016, the plaintiffs filed a motion for a partial termination of the appellate stay, which, on December 7, 2016, the trial court granted in order to permit the plaintiffs to market and sell the subject property free and clear of any claims or encumbrances by the defendants. The defendants sought review of that order, which this court granted, but we denied the relief requested. On December 28, 2016, the defendants filed a motion to open and vacate the judgment of the trial court. In the motion, which was opposed by the plaintiffs, the defendants raised claims of lack of standing and fraud. Specifically, the defendants alleged that Shara Rocco falsely had represented to the court that, during the pendency of the litigation, she was the record owner of the subject property despite the fact that, on March 14, 2016, she transferred all of her interest in the property to a trust. The defendants contended that Shara Rocco committed fraud by her false representations and that the plaintiffs lacked standing once Shara Rocco transferred her interest in the subject property to herself as trustee of the trust. The plaintiffs opposed the motion and submitted an affidavit from Shara Rocco in which she averred in relevant part that she had executed the transfer purely on the basis of advice from an estate planning attorney and that she was unaware that this transfer constituted "a sale" of the property to anyone other than herself. She further averred that she had since conveyed the property back to herself. On March 8, 2017, following a hearing and argument on the motion, the court denied the defendants' motion in a one sentence memorandum of decision. Additional facts will be set forth as necessary. I SUBJECT MATTER JURISDICTION First, we address the defendants' claim that the trial court lacked subject matter jurisdiction over one or more of the plaintiffs' causes of action due to the plaintiffs' alleged lack of standing. In their first claim on appeal, the defendants argue that because Shara Rocco transferred her interest in the subject property before the court rendered judgment, the plaintiffs had no standing to maintain their causes of action. The defendants argue in relevant part: "Prior to the entry of default against the defendants, trial in damages, and for many months after entry of judgment, until its discovery by defense counsel, the plaintiffs withheld the fact that [the] plaintiff Shara Rocco executed a quitclaim deed in March, 2016, transferring all interest in the [subject] property to a living trust. The plaintiffs did not record the deed in the Berlin land records until after the July 20, 2016 trial, and just before judgment entered in September, 2016. Shara Rocco falsely stated under oath at the trial and in an affidavit that she personally was the 'sole owner' of the property when, in fact, she was not. "The defendants submit that because neither plaintiff possessed title to the property at the time of the trial or entry of judgment, they lacked standing to adjudicate most of their claims, thereby depriving the court of jurisdiction to adjudicate them in their favor." (Emphasis omitted.) We conclude that this claim is moot, and, therefore, we do not have subject matter jurisdiction to adjudicate it; there is no practical relief we can afford to the defendants in relation to counts one and two of the plaintiffs' complaint because the property has been sold to a third party. The following additional facts are relevant to the present claim. The plaintiffs presented evidence, in the form of a deed signed by Patrick Rocco, that Shara Rocco acquired title to the subject property after Patrick Rocco transferred his interest in the property to her by means of a quitclaim deed on November 7, 2013. Moreover, just prior to the trial on July 20, 2016, the plaintiffs submitted "affidavits of damages" to the court, including an affidavit in which Shara Rocco averred that she was the sole owner of the subject property and had "not deeded the property to anyone else." During the hearing in damages, Shara Rocco testified that she currently owned the subject property and that she wanted the court to quiet title in her favor. As the defendants correctly observe, after the court rendered judgment in the plaintiffs' favor, the plaintiffs asked the court to clarify that Shara Rocco was the "sole record owner" of the subject property. The court amended its judgment to reflect that Shara Rocco was "the record owner" of the subject property and that neither defendant had any right, title, or interest in the subject property. After the defendants filed the present appeal, the plaintiffs filed a motion to terminate the appellate stay in part, which the trial court granted by partially lifting the stay to permit the plaintiffs to market and sell the subject property free and clear of any claims from the defendants. The parties agree that the plaintiffs, thereafter, sold the property to a third party and that the defendants have neither a legal nor equitable interest or right in the property. In their December 28, 2016 motion to open and vacate the judgment, filed after the defendants brought the present appeal, the defendants relied on the fact that, on March 14, 2016, prior to the hearing, Shara Rocco transferred her interest in the subject property, did not apprise the court or the defendants of this fact, and did not record the transfer on the land records until September 22, 2016. Attached to the defendants' motion was a March 14, 2016 quitclaim deed executed by "Shara C. Rocco also known as Sharon C. Rocco" in favor of "Sharon C. Rocco, Trustee of the Sharon C. Rocco Living Trust Agreement ." The defendants argued that because Shara Rocco no longer had a personal interest in the property after March 14, 2016, and because neither the Shara C. Rocco trust nor its trustee have ever been parties to the present case, the plaintiffs' controversy had become moot due to the plaintiffs' lack of standing, and, thus, the court lacked subject matter jurisdiction. In opposing the defendants' motion, the plaintiffs argued in relevant part that the defendants engaged in misconduct that caused the plaintiffs to incur substantial damages, not only in terms of their lost opportunity to sell the subject property, but in the carrying costs they continued to incur until and through the hearing in damages. The plaintiffs argued: "When the plaintiffs filed suit in this action (in November, 2015), it is undisputed that Shara Rocco had both legal and record title to the [subject] property. It is also undisputed that well before this action was filed, the plaintiffs had agreed in their divorce court filing to sell the property and to absorb the carrying costs associated with the property until it could be sold. Thus, both plaintiffs had a direct pecuniary interest in seeing the false lien removed so the property could be sold. "It is also undisputed that as of the date of the hearing in damages (July 20, 2016), [Shara] Rocco was the record title owner of the property. At the hearing, [Shara] Rocco authenticated and introduced the deed from the Berlin land records, which showed how she acquired title to the property." The plaintiffs argued that they demonstrated their entitlement to the monetary damages, as well as the liquidated damages to which they were entitled under the purchase and sale agreement, specifically, the $10,000 deposited with the real estate agency. The plaintiffs argued that the court properly determined that the defendants had no interest in the property or any portion thereof. They further argued in relevant part: "The defendants' motion is based on a single document-a deed in which [Shara] Rocco conveyed the property to herself as trustee for a revocable trust (for which she was both trustee and beneficiary) for no consideration. The [defendants'] motion confirms that the deed was not recorded until September, 2016-long after the hearing in damages. At the time she testified, [Shara] Rocco did not have the deed in mind.... What [Shara] Rocco did recall was that the malicious lien filed by the defendants was preventing her from selling the property as required by the filed settlement agreement in her divorce case." (Citation omitted.) Additionally, the plaintiffs argued: "Here, it is undisputed that at the time of the bringing [of the] action and through the hearing in damages, plaintiff Shara Rocco was the legal and record owner of the property. It is also undisputed that at all material times both plaintiffs were contractually and judicially obligated to sell the property and were incurring carrying costs until they could do so. Both plaintiffs had a direct pecuniary interest in seeing that the lien was removed so that the property could be sold and carrying costs could stop running. Ownership of property at the time of the initiation of the action, plus a contractual obligation to clear title, is sufficient to establish standing to maintain a quiet title action, even if the plaintiff [Shara Rocco] conveys the property during the pendency of the action." The plaintiffs argued that they, therefore, had a direct pecuniary interest in bringing the action and in maintaining the action, which interest continued until and through the date of judgment. The plaintiffs argued that Shara Rocco's unrecorded deed was not relevant to the issues before the court. Further, the plaintiffs also argued that the defendants failed to demonstrate how the unrecorded deed executed by Shara Rocco in any way deprived the plaintiffs of standing to pursue claims related to breach of contract, tortious interference, and slander to title, which claims were based on the defendants' repudiation of the contract that formed the basis of their invalid lien and which clearly accrued prior to the execution of the deed to the trust. The plaintiffs argued that the defendants had failed to bring to the court's attention any facts that would have changed its ruling on the central decision in the case related to the defendants' interest in the property. Following the hearing on the motion, the court, on March 8, 2017, issued a one sentence memorandum of decision stating that the motion to open and vacate the judgment was denied. Initially, we observe that the defendants' claim regarding the plaintiffs' lack of standing is unclear with respect to a key issue. Specifically, in their principal appellate brief, the defendants argue that the plaintiffs "lacked standing to adjudicate most of their claims ." (Emphasis added.) They then go on to further limit the scope of their claim to the plaintiffs' causes of action "to quiet title and remove liens" on the subject property, as set forth in counts one and two of the plaintiffs' complaint. They also argue that "[a]t the date of the transfer, the trust became the owner of the property, and only the trust, acting through a trustee, had the right to assert its interest in clear title." In their reply brief, however, the defendants argue that it is "abundantly clear that the plaintiffs maintained no personal financial interest in the property, and therefore no standing to pursue any of their claims, both at the time default entered and at the hearing in damages." (Emphasis in original.) The defendants do not explain, however, how the transfer of the subject property in March, 2016, would affect the plaintiffs' standing to pursue the causes of action for slander of title, tortious interference, and breach of contract, all of which had accrued prior to the transfer of title. Rather, they present argument only with respect to the counts to quiet title and to discharge the defendants' lien. In their appellate brief, the plaintiffs respond that the defendants' claim that they lack standing involves only counts one and two of their complaint, and that the defendants' claim is moot because there is no practical relief that can be afforded to them because the property now has been sold and title vested in a third party. During oral argument before this court, the defendants' attorney was asked whether the lack of standing claim also involved other counts of the complaint, and counsel stated that the claim did not implicate other counts. Shortly thereafter, the panel asked counsel why this issue was not moot, and counsel responded that attorney's fees may have been awarded under these counts. Pressed further, the panel then commented that it appeared that the plaintiffs sought attorney's fees only under the contract and common law, rather than under statutory law. The defendants' counsel responded: "That is correct, Your Honor." Although we are mindful that the plaintiffs requested "costs, attorney's fees, statutory and actual damages" in the second count of their complaint, a request for statutory damages is not included in the prayer for relief except a request pursuant to § 42-110a, which later was withdrawn. The plaintiffs also submitted their own affidavits, and the affidavits of their attorneys, in support of their claims for damages and attorney's fees. Additionally, the plaintiffs submitted a proposed judgment in which they requested that the court render judgment in their favor against the defendants with the following damages (plus interest): "Monetary Damages other than Attorney's Fees: $30,996.22 "Attorney's Fees (authorized by contract, and as common-law punitive damages, and in the case of Attorneys [Robert A.] Feiner and [Dara P.] Goings, on the foregoing bases and as damages proximately caused by the recording of the purported lien): $60,862 "Costs of Suit: $1782.24" The plaintiffs did not allege a right to attorney's fees under any statute or under counts one and two of their complaint. The defendants did not file a motion or a memorandum in opposition. The court, thereafter, awarded the plaintiffs $30,996.22 in damages and $60,862 in attorney's fees, with no award of costs, with postjudgment interest at a rate of 5 percent. Having thoroughly examined the record, and having taken into consideration counsels' appellate briefs and arguments, we conclude that the defendants' claim that the plaintiffs lacked standing to maintain their statutory causes of action under counts one and two of their complaint, sounding in quiet title and discharge of a lien, are moot; there is no practical relief we could afford the defendants because title to the subject property already has vested in a third party. Further, there is no indication in the record that the court awarded attorney's fees under either the first or second count of the plaintiffs' complaint. "Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties.... Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties.... [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.... In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way." (Internal quotation marks omitted.) Pryor v. Pryor , 162 Conn. App. 451, 455, 133 A.3d 463 (2016) ; see also Morgan v. Morgan , 139 Conn. App. 808, 811-12, 57 A.3d 790 (2012) (plaintiff's sale of real property to nonparty during pendency of appeal rendered moot her challenge to order requiring sale of property because sale could not be undone). Here, the parties concede that the property has been sold to a third party, and the defendants concede that they have no legal or equitable right or interest in the property. This court, therefore, lacks jurisdiction to entertain the defendants' claims concerning the causes of action to quiet title and to discharge the lien. There is no practical relief we could afford the defendants, as a third party now has legal title to the property. II FRAUD The defendants next claim that this court should exercise its supervisory authority over the administration of justice and reverse the trial court's judgment because the judgment was procured by fraud, both by the plaintiffs and by the defendants' former attorney. The defendants argue that the trial court failed to address their fraud allegations, and, therefore, we should address these allegations under our supervisory authority. They argue that because the "fraud impacts at least count one (action to quiet title), count two (action to discharge invalid liens), and count three (slander to title), remand is necessary to determine whether and to what extent the misconduct tainted the entire judgment, requiring reversal." They also argue that the fraud committed by their former attorney resulted in the default that was rendered against them in this case. The plaintiffs respond that we have no record to ascertain whether the trial court fully considered and then rejected the defendants' allegations of fraud by the plaintiffs and on what ground the court may have rejected the allegations that fraud affected the judgment. They contend that the defendants specifically raised a claim of fraud against the plaintiffs in their motion to open the judgment, and the court denied that motion, in a one sentence written opinion, after a hearing. They argue that, at most, we should review the court's denial of the defendants' motion to open the judgment, using the abuse of discretion standard, but maintain, nonetheless, that the defendants have failed to provide an adequate record for review of the denial of the motion to open. We decline the defendants' invitation to exercise our supervisory powers in this instance. "It is well settled that [a]ppellate courts possess an inherent supervisory authority over the administration of justice.... Generally, cases in which we have invoked our supervisory authority for rule making have fallen into two categories.... In the first category are cases wherein we have utilized our supervisory power to articulate a procedural rule as a matter of policy, either as [a] holding or dictum, but without reversing [the underlying judgment] or portions thereof.... In the second category are cases wherein we have utilized our supervisory powers to articulate a rule or otherwise take measures necessary to remedy a perceived injustice with respect to a preserved or unpreserved claim on appeal.... In other words, in the first category of cases we employ only the rule-making power of our supervisory authority; in the second category we employ our rule-making power and our power to reverse a judgment.... "[T]he salient distinction between these two categories of cases is that in one category we afford a remedy and in the other we do not.... In the second category of cases, where we exercise both powers under our supervisory authority, the party must establish that the invocation of our supervisory authority is truly necessary because [o]ur supervisory powers are not a last bastion of hope for every untenable appeal.... In almost all cases, [c]onstitutional, statutory and procedural limitations are generally adequate to protect the rights of the [appellant] and the integrity of the judicial system.... [O]nly in the rare circumstance [in which] these traditional protections are inadequate to ensure the fair and just administration of the courts will we exercise our supervisory authority to reverse a judgment.... In such a circumstance, the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of [the] utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole." (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) In re Daniel N. , 323 Conn. 640, 645-48, 150 A.3d 657 (2016). In this case, we are unable to conclude that traditional protections available to the defendants were not and are not adequate, thereby warranting the rare and extreme exercise of our supervisory powers. The judgment is affirmed. In this opinion the other judges concurred. Because we conclude that the defendants' claim that the plaintiffs lacked standing to maintain their causes of action under counts one and two of the complaint is moot, we need not reach the merits of the second claim on appeal, which also addresses count two of the complaint. There is no dispute that the property, thereafter, was sold to a third party. Alternatively, the defendants asked the court to consider the motion as a writ of audita querela because the defense arose postjudgment and, therefore, could only be raised postjudgment. "A writ of audita querela affords a remedy to a defendant against whom judgment has already been rendered." TD Banknorth, N.A. v. White Water Mountain Resorts of Connecticut, Inc. , 133 Conn. App. 536, 547 n.10, 37 A.3d 766 (2012). The court considered and denied the defendants' motion to open and vacate judgment on its merits and, therefore, did not explicitly address this request. The defendants did not ask the court for a detailed decision setting forth its analysis regarding the court's denial of the motion to open. See Practice Book § 64-1. They also did not amend their appeal to include the trial court's denial of their motion to open. The defendants concede that they "possess no current legal or equitable interest or right to the property ." Attached to their opposition to the defendants' motion, the plaintiffs presented an affidavit of Shara Rocco in which she averred in relevant part that she transferred her interest in the property to the trust as part of her estate planning, that she did not understand this action to constitute "a sale" of the property or a conveyance to anyone other than herself, and that she did not receive any consideration for this conveyance. Moreover, she averred that during the foregoing proceedings in this matter, she was motivated to sell the property and believed that she owned the property. She also averred that the property subsequently was transferred back to her. On appeal, the plaintiffs argue that this sufficiently establishes that they were classically aggrieved, despite the fact that Shara Rocco temporarily had transferred the property to the trust. We already have concluded that any claim regarding counts one and two is moot for the reasons set forth in part I of this opinion. The allegation that the fraudulent acts committed by the defendants' former attorney was the cause the default judgment against them and a judgment in favor of the plaintiffs was not raised by the defendants in their motion to open the judgment. We do not review the merits of the court's denial of the defendants' motion to open the judgment on the basis of fraud because the plaintiffs did not appeal from that judgment, which was rendered after the filing of the present appeal. See footnote 4 of this opinion.

12504940

James L. DAVIS III v. COMMISSIONER OF CORRECTION

Davis v. Comm'r of Corr.

2018-12-04

AC 40090

562

573

199 A.3d 562

199

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:42.438369+00:00

Fastcase

DiPentima, C.J., and Lavine and Sheldon, Js.

James L. DAVIS III v. COMMISSIONER OF CORRECTION

James L. DAVIS III v. COMMISSIONER OF CORRECTION AC 40090 Appellate Court of Connecticut. Argued September 7, 2018 Officially released December 4, 2018 Heather Clark, New Haven, for the appellant (petitioner) Michael L. Regan, state's attorney, for the appellee (respondent). DiPentima, C.J., and Lavine and Sheldon, Js.

5262

33464

DiPENTIMA, C.J. The petitioner, James L. Davis III, appeals from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) erred in concluding that his trial counsel had not rendered ineffective assistance by failing to (A) file a motion in limine to preclude certain evidence, (B) consult with and present the testimony of an eyewitness identification expert, (C) object to the testimony of a laboratory supervisor on the ground that the testimony violated his right to confrontation under the federal constitution and (D) prepare the petitioner for the presentence investigation interview. We dismiss the petitioner's appeal. The following facts and procedural history are relevant to our resolution of the petitioner's claims. The petitioner was charged with murder by use of a firearm in violation of General Statutes § 53a-54a (a), attempt to commit murder in violation of General Statutes § 53a-49 (a) (2) and 53a-54a (a), three counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The matter proceeded to trial twice; both ended in mistrials due to the inability of the jury to reach a unanimous verdict. Following the petitioner's third trial, the jury returned a verdict of not guilty on the count of murder, but guilty of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55a, not guilty of attempt to commit murder, guilty of three counts of assault in the first degree, and guilty of carrying a pistol without a permit. The trial court, Hadden, J., accepted the verdict and sentenced the petitioner to a total effective sentence of forty-eight years imprisonment. On direct appeal, our Supreme Court affirmed the petitioner's conviction. See State v. Davis, 283 Conn. 280, 929 A.2d 278 (2007). The following facts, which the jury reasonably could have found, were set forth on direct appeal: "The events in question took place in the early morning hours of November 14, 1999, at the Sportsmen's Athletic Club (club) at 40 High Street in Norwich. Joseph Ellis arrived at the club with Susan Gomez at approximately midnight. Ellis had arranged to meet Jermaine Floyd, Timothy McCoy and Xavier Cluff there. The [petitioner], Susan Gomez' estranged husband, and Ricky Gomez, Ron Pires, Clayton Ballinger and Yolanda Pires were in the poolroom of the club when Ellis arrived. Ellis went to the bar area, accompanied by Floyd and McCoy, and saw Ricky Gomez and Ron Pires, both of whom he knew, looking at him through a service window between the bar and the poolroom. Ellis then left the bar area and went to the club's office to make arrangements for a birthday party. When he came out of the office, Ellis saw Ricky Gomez, Ron Pires and a third person whom he could not clearly see walk in and out of the bathroom several times. Ricky Gomez left the club, came back with something concealed under his jacket and again entered the bathroom. Gomez then left the bathroom, and, shortly thereafter, another person came out and started shooting a gun. The shooter's face was covered with a cloth of some type. "The shooter first shot Joseph Dubose. He then shot Ellis in the left leg and went to the front door of the club, where he fired two more shots. He returned to Ellis and shot him in the right leg, upper right arm and armpit, and left forearm. At that point, the cloth over the shooter's face slipped, and Ellis recognized him as the [petitioner]. "At approximately 1:16 a.m. on November 14, 1999, members of the Norwich Police Department responded to an alarm at the club. Upon entering the club, they observed Dubose and Ellis lying on the floor with apparent gunshot wounds. One of the officers also observed that Floyd, who was able to stand on his own, had been shot in the buttocks. Emergency medical personnel transported Dubose, Ellis and Floyd to William W. Backus Hospital in Norwich. Cluff, who had been shot in the arm during the incident, arrived at the hospital by other means of transportation. Dubose was declared dead at approximately 2:11 a.m. "Later on the day of the shooting, members of the Norwich Police Department, assisted by members of the state police eastern district major crime squad, recovered ten spent .40 caliber shell casings and eleven bullet fragments from the scene of the shooting. The Norwich police recovered two additional bullet fragments on November 16, 1999. All of the shell casings had been fired from the same .40 caliber Glock semiautomatic handgun. "Several months prior to the shooting, in September, 1999, Wilfred Pepin had reported the theft of several guns, including a .40 caliber Glock semiautomatic handgun, from his residence in Lisbon. After the shooting, the Norwich Police Department contacted Pepin and inquired if Pepin had retained possession of any casings that had been discharged from the Glock handgun. Pepin was able to find three casings that he thought may have been discharged from the gun and provided them to the police. Two of those casings matched the casings that had been recovered at the club. "On January 5, 2000, Adrianne Cook went to the Norwich police station and informed the police that the [petitioner] was staying at her apartment at 29 Carpenter Street in Norwich and that he had refused to leave. The police went to the apartment and arrested the [petitioner] for criminal trespassing. They also seized a black duffel bag from the room in which the [petitioner] had been staying. The duffel bag contained a number of guns and gun paraphernalia that had been stolen from Pepin. Several of the items, including a gun case, a magazine clip, two screws, an Allen wrench and spare magazine holders, were linked to Pepin's .40 caliber Glock handgun, but the gun itself never was recovered." (Footnote omitted.) Id., 284-86, 929 A.2d 278. In January, 2016, the petitioner filed his second amended petition for a writ of habeas corpus in which he alleged ineffective assistance of trial counsel, Michael Fitzpatrick, on several grounds. The habeas court, Fuger, J., denied the petition. The court determined that Fitzpatrick had testified credibly and concluded that the petitioner had proven neither deficient performance nor prejudice. The petitioner filed a petition for certification to appeal, which the court denied. This appeal followed. Additional facts will be set forth as necessary. I The petitioner claims that the court abused its discretion in denying his petition for certification to appeal because it improperly denied his claims of ineffective assistance of counsel. We do not agree. "Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits.... To prove that the denial of his petition for certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... "In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification." (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction , 169 Conn. App. 813, 821-22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017). II We now examine the petitioner's underlying claims of ineffective assistance of counsel to determine whether the court abused its discretion in denying the petition for certification to appeal. "It is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.... As enunciated in Strickland v. Washington , [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel.... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.... The second prong is . satisfied if the petitioner can demonstrate that there is a reasonable probability that, but for that ineffectiveness, the outcome would have been different.... An ineffective assistance of counsel claim will succeed only if both prongs [of Strickland ] are satisfied." (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction , supra, 169 Conn. App. at 823. "In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary." (Internal quotation marks omitted.) Mourning v. Commissioner of Correction , 169 Conn. App. 444, 449, 150 A.3d 1166 (2016), cert. denied, 324 Conn. 908, 152 A.3d 1246 (2017). A The petitioner claims that the court improperly failed to conclude that Fitzpatrick rendered ineffective assistance by failing to file a motion in limine to preclude certain firearm and firearm-related evidence found in a room where the petitioner had stayed, on the grounds that it was not relevant, was more prejudicial than probative and constituted uncharged misconduct. We are not persuaded. The following additional facts are relevant. Pepin, a gun collector, testified at the criminal trial that, on September 27, 1999, twelve firearms were stolen from his residence, including a .40 caliber Glock semiautomatic, as well as items related to the Glock. A black duffel bag found by the police in the room where the defendant had been staying in Cook's apartment contained a number of firearms and firearm-related items that had been stolen from Pepin: two Smith & Wesson .45 caliber revolvers, as well as items that were related to the Glock: an Allen wrench and two screws; a Glock magazine plate, a spare magazine holder, and a gun case for the Glock. Pepin testified that some items that were recovered in the duffel bag did not belong to him: a .30 caliber magazine, two .30 caliber round magazines taped together end-to-end, a .22 caliber round magazine with eight rounds of ammunition, and a pouch with two .30 caliber round magazines. The duffel bag also contained clothing, and a receipt to Richard Gomez from Bebe and O'Neill, a law firm in Norwich. Pepin's Glock was not recovered. Edward Jachimowicz, the state's firearm and tool mark identification expert, testified at the criminal trial that all ten spent shell casings found at the scene had been fired from the same .40 caliber Glock semiautomatic pistol. At the request of the Norwich police department, Pepin found three spent shell casings that he thought may have been discharged from the Glock, and testing revealed that the striations on two of the spent shell casings matched the striations on the casings recovered at the club. Jachimowicz testified that the .45 caliber Smith & Wesson revolvers found in the duffel bag were incapable of firing .40 caliber ammunition. The petitioner argues that Fitzpatrick should have sought to exclude the two Smith & Wesson revolvers on the ground of relevancy. The petitioner contends that the Smith & Wesson revolvers were not the same caliber as the Glock used to commit the offenses and thus could not have fired the .40 caliber ammunition that struck the victims. He also argues that the state did not offer any evidence that the petitioner had stolen the Smith & Wesson revolvers from Pepin's residence, and that there was no indication as to who possessed the revolvers in the one and one-half months between the date of the offenses and the time when the revolvers were seized on January 5, 2000. The petitioner further argues that, assuming that the Smith & Wesson revolvers were relevant, those revolvers and the firearm-related evidence discovered by police in the duffel bag was more prejudicial than probative. He also contends that the firearms and the firearm-related evidence was inadmissible uncharged misconduct evidence. We note that "[t]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency.... [T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment ." (Citation omitted; internal quotation marks omitted.) Toccaline v. Commissioner of Correction , 80 Conn. App. 792, 801, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz , 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004). Fitzpatrick testified at the habeas trial that the admission into evidence of the firearms and firearm-related items in the duffel bag was part of his third-party culpability defense. Fitzpatrick explained at the habeas trial that if Ricky Gomez had possession of the duffel bag and, therefore, had possession of Pepin's Smith & Wesson firearms, "then arguably he was in possession of the Glock." The habeas court determined that Fitzpatrick testified "admirably" and that it took "no issue with the actions to which . Fitzpatrick testified." Fitzpatrick did not render deficient performance when he failed to file a motion in limine to preclude evidence that he thought would assist his theory of defense. The inference that whoever possessed the duffel bag containing Smith & Wesson revolvers along with other items stolen from Pepin also had possessed Pepin's Glock, supported the petitioner's third-party culpability defense that the crimes had been perpetrated by Ricky Gomez, whose receipt from Bebe and O'Neill was in the duffel bag, or by Ballinger. If the jury believed the state's theory, the firearm related evidence would tend to inculpate the petitioner; however, if the jury had believed Fitzpatrick's defense, the evidence would have tended to point a finger at one of the third parties as the perpetrator. "There is a strong presumption that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than sheer neglect.... After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome. Strickland , however, calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind." (Citation omitted; internal quotation marks omitted.) Harrington v. Richter , 562 U.S. 86, 109-10, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Accordingly, we conclude that the habeas court properly determined that Fitzpatrick's representation was not deficient, under Strickland , with respect to his decision not to file a motion in limine with respect to the firearm and firearm related evidence in the duffel bag. B The petitioner next claims that the court improperly failed to conclude that Fitzpatrick rendered ineffective assistance (1) for failing to present the testimony of an eyewitness identification expert and (2) for failing to consult an eyewitness identification expert to prepare for witness examinations, closing argument and jury instructions. We disagree. At the habeas trial, the petitioner presented as an expert witness, Deryn Strange, a cognitive psychologist who specializes in memory and memory distortion. Strange testified that there are three stages of memory: encoding, storage, and retrieval. Strange explained the factors that can impact memory negatively during each of the three stages of memory. At the habeas trial, the petitioner's habeas counsel explained that "Fitzpatrick could have consulted with an expert and could have used that in requesting a jury instruction . and could have used that in closing in focusing the jury on the factors that would affect the witness's memory; particularly . Ellis, since his credibility was so focal to the case." The habeas court determined that Strange's testimony bore "little to no relevance to the question of effective representation of the criminal trial defense counsel." The petitioner cannot prevail on his claim that Fitzpatrick performed deficiently by not presenting the testimony of an eyewitness identification expert. The recent case of Bennett v. Commissioner of Correction , 182 Conn. App. 541, 190 A.3d 877, cert. denied, 330 Conn. 910, 193 A.3d 50 (2018), is directly on point. In that case, as in the present case, the controlling law at the time of the underlying criminal trial, "on the issue was State v. Kemp , 199 Conn. 473, 507 A.2d 1387 (1986), overruled in part by State v. Guilbert , 306 Conn. 218, 49 A.3d 705 (2012), in which our Supreme Court observed 'that the reliability of eyewitness identification is within the knowledge of jurors and expert testimony generally would not assist them in determining the question.... Such testimony is also disfavored because . it invades the province of the jury to determine what weight or effect it wishes to give to eyewitness testimony.' " Id., 562, 190 A.3d 877. Although Kemp was overruled in 2012, we consider Fitzpatrick's performance in light of the standards in effect at the time of the petitioner's criminal trial in 2004, and conclude that the habeas court did not err in concluding that Fitzpatrick's performance was not deficient. See id., 561, 190 A.3d 877. "Counsel . performs effectively when he elects to maneuver within the existing law ." (Internal quotation marks omitted.) Id. Moreover, Fitzpatrick testified at the habeas trial that his theory of defense was not misidentification, but rather was third-party culpability, and that Ellis had a motive to lie and implicate the petitioner. He stated that he did not consult an eyewitness identification expert "because that was not the horse I chose to ride in this case." "[T]here is no requirement that counsel call an expert when he has developed a different trial strategy." Stephen J.R. v. Commissioner of Correction , 178 Conn. App. 1, 13, 173 A.3d 984 (2017), cert. denied, 327 Conn. 995, 175 A.3d 1246 (2018). "[T]here is no per se rule that requires a trial attorney to seek out an expert witness.... Furthermore, trial counsel is entitled to make strategic choices in preparation for trial." (Internal quotation marks omitted.) Brian S. v. Commissioner of Correction , 172 Conn. App. 535, 542, 160 A.3d 1110, cert. denied, 326 Conn. 904, 163 A.3d 1204 (2017). The petitioner also claims that the court erred in declining to conclude that Fitzpatrick performed deficiently by failing to consult an eyewitness identification expert in preparation for trial. We disagree. Fitzpatrick's decision not to pursue a misidentification defense and, therefore, not to consult an eyewitness identification expert does not amount to deficient performance. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable ." (Internal quotation marks omitted.) Gaines v. Commissioner of Correction , 306 Conn. 664, 680, 51 A.3d 948 (2012). "[T]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense." (Internal quotation marks omitted.) Kellman v. Commissioner of Correction, 178 Conn. App. 63, 77-78, 174 A.3d 206 (2017). The petitioner has not shown how consultation with a memory expert would have assisted Fitzpatrick when he chose to pursue a third-party culpability defense rather than a misidentification defense. Furthermore, the petitioner has not demonstrated that there is a reasonable probability that had Fitzpatrick consulted with an expert and introduced expert testimony, the result would have been different. The petitioner's argument focuses on two of the state's witnesses, Ellis and Bickham. In his brief, the petitioner describes Strange's testimony as it relates to the changes in Ellis and Bickham's testimony over the course of the three trials. The petitioner has not shown how consultation with an eyewitness identification expert would have impacted Fitzpatrick's performance at trial, or altered his cross-examination of Ellis and Bickham. At the third criminal trial, Fitzpatrick thoroughly cross-examined Ellis on his intoxication, motive to lie and inconsistencies in his testimony in the three trials. Fitzpatrick also extensively cross-examined Bickham on the inconsistencies in his testimony at the three trials with respect to his description of the perpetrator. In light of this, we agree with the habeas court that Strange's testimony establishes neither deficient performance nor prejudice. "It is well established that a petitioner in a habeas proceeding cannot rely on mere conjecture or speculation to satisfy either the performance or prejudice prong but must instead offer demonstrable evidence in support of his claim." (Internal quotation marks omitted.) Lopez v. Commissioner of Correction , 142 Conn. App. 53, 59, 64 A.3d 334 (2013). Accordingly, the petitioner's claim cannot prevail under Strickland . C The petitioner next claims that Fitzpatrick provided ineffective assistance by failing to object to the testimony of a laboratory supervisor, Debra Messina, on the ground that her testimony violated his right to confrontation under the federal constitution, as articulated in Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), in the absence of testimony from the criminalist, Fung Kwok, who had performed the physical testing on the items submitted to the laboratory. We are not persuaded. Messina, the supervising criminalist at the state forensic lab, testified as to the processes used in examining Ballinger's hands and football jersey for gunshot residue. Kwok performed the tests on the submitted items. Messina's role, as Kwok's supervisor, was to ensure that he followed procedure. Messina reviewed Kwok's worksheets and results and signed the laboratory report that Kwok generated. Kwok testified at the first trial regarding his examination of the submitted items and was subject to cross-examination by Fitzpatrick. Kwok did not testify at the petitioner's second or third trial. Crawford v. Washington , supra, 541 U.S. 36, 124 S.Ct. 1354, was decided on March 8, 2004, and the petitioner's third trial was held in May and June of 2004. "In Crawford v. Washington , [supra, 541 U.S. 36, 124 S.Ct. 1354], the [United States] Supreme Court substantially revised its approach to confrontation clause claims. Under Crawford , testimonial hearsay is admissible against a criminal defendant at trial only if the defendant had a prior opportunity [to cross-examine the witness who is otherwise] unavailable to testify at trial.... In adopting this categorical approach, the court overturned existing precedent that had applied an open-ended balancing [test] . conditioning the admissibility of out-of-court statements on a court's determination of whether the proffered statements bore adequate indicia of reliability." (Citations omitted; internal quotation marks omitted.) State v. Buckland , 313 Conn. 205, 212, 96 A.3d 1163 (2014), cert. denied, - U.S. -, 135 S.Ct. 992, 190 L.Ed. 2d 837 (2015). The United States Supreme Court, in Crawford , "declined to define the terms testimonial and nontestimonial ." State v. Kirby, 280 Conn. 361, 380, 908 A.2d 506 (2006). Five years after the petitioner's third trial, the United States Supreme Court in Melendez -Diaz v. Massachusetts , 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), addressed the meaning of "testimonial" in the context of certificates of analysis setting forth the results of forensic testing. The court held that the certificates stating that the submitted substance was cocaine were "functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination" and that the "affidavits were testimonial statements, and the analysts were 'witnesses' for the purposes of the Sixth Amendment." (Internal quotation marks omitted.) Id., 310-11, 129 S.Ct. 2527. In 2018, this court determined in State v. Walker , 180 Conn. App. 291, 183 A.3d 1, cert. granted, 328 Conn. 934, 183 A.3d 634 (2018), that testimony of a forensic science examiner regarding her comparison of two DNA profiles, one of which was generated by another analyst, did not violate the defendant's right to confrontation because "the primary analyst who performed and supervised the generation and analysis of the DNA profiles and resulting findings, testified and was available for cross-examination." Id., 307, 183 A.3d 1. The Walker court reasoned, citing Melendez-Diaz v. Massachusetts , supra, 557 U.S. 305, 129 S.Ct. 2527, that "it is not the case . that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case.... Although [i]t is the obligation of the prosecution to establish the chain of custody . this does not mean that everyone who laid hands on the evidence must be called.... [G]aps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility." (Citation omitted; internal quotation marks omitted.) Id., 303. 129 S.Ct. 2527. Our Supreme Court granted certification in Walker on this issue. Approximately two months prior to the petitioner's third trial, the Supreme Court released Crawford. At that time, Fitzpatrick did not have the guidance from Melendez-Diaz and its progeny on the definition of "testimonial" or from State v. Walker . It is evident that the issue was evolving at the time of the petitioner's third trial, and Fitzpatrick did not render ineffective assistance for declining to advance a novel theory. "[W]hile the failure to advance an established legal theory may result in ineffective assistance of counsel under Strickland , the failure to advance a novel theory never will . [and] [c]ounsel cannot be faulted for failing to advance a novel legal theory which has never been accepted by the pertinent courts . Counsel instead performs effectively when he elects to maneuver within the existing law, declining to present untested . legal theories.... [R]easonably effective representation cannot and does not include a requirement to make arguments based on predictions of how the law may develop ." (Citations omitted; internal quotation marks omitted.) Ledbetter v. Commissioner of Correction , 275 Conn. 451, 461-62, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz , 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006). The petitioner has failed to satisfy Strickland's performance prong, and therefore he cannot prevail on this claim. D The petitioner last claims that Fitzpatrick rendered ineffective assistance when he failed to prepare the petitioner for the presentence investigation interview. We disagree. Fitzpatrick testified at the habeas trial that he was present with the petitioner during the presentence interview. He did not recall whether he had met with the petitioner in preparation for the presentence interview. The petitioner testified that he met with Fitzpatrick prior to the presentence interview and that Fitzpatrick told him to be honest in the interview. During the presentence interview, the petitioner admitted that he began selling drugs in 1998, and that he had been suspended from high school for possessing a gun. The presentence investigation report indicates that Fitzpatrick advised the petitioner not to discuss pending charges in that it notes that the petitioner declined to comment on his version of the events "based on an appeal that will take place in the future." At sentencing, the court stated that "it would appear, having reviewed the evidence in this case and reviewing the presentence investigation report, that this is an incident that arises from a subculture of violence, a subculture of drug dealing, a subculture of protection of turf, none of which may be tolerated by society, none of which can be tolerated by this court." The petitioner's total exposure was over 100 years and the petitioner received a sentence of forty-eight years imprisonment. The petitioner has not satisfied the prejudice prong of Strickland. Although the court referenced the presentence investigation report at sentencing, the court gave no indication that the petitioner's comments during the presentence investigation interview regarding selling drugs or possessing a gun had an impact on the sentence imposed. The petitioner's suggestion that the sentencing court relied on those statements in sentencing him is speculative. Because the petitioner has not demonstrated that his honest comments made during his sentencing interview made a difference in the sentence imposed, we conclude that the court properly rejected the petitioner's claims of ineffective assistance of counsel. See Ruffin v. Commissioner of Correction , 106 Conn. App. 396, 400, 943 A.2d 1105, cert. denied, 286 Conn. 922, 949 A.2d 481 (2008). Accordingly, we conclude that the petitioner has not shown that the issues raised in his petition for a writ of habeas corpus as resolved by the court are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. Therefore, the petitioner has failed to demonstrate that the court's denial of his petition for certification to appeal reflects an abuse of discretion. The appeal is dismissed. In this opinion the other judges concurred. We also note that had Fitzpatrick filed a motion in limine, it is highly unlikely that the trial court would have granted the motion as to the Smith & Wesson firearms and the items relating to Pepin's Glock. It is likely that the court would have determined that the Smith & Wesson firearms and the items relating to the Glock that had been stolen from Pepin (1) were highly probative of the identity of the individual who had had possessed Pepin's Glock and, by reasonable inference, had committed the crimes charged and (2) were not evidence of prior misconduct because they directly tend to prove guilt. "[T]he failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation." Sekou v. Warden , 216 Conn. 678, 690, 583 A.2d 1277 (1990). Although it may be less clear how the court might have ruled regarding the items in the duffel bag that did not belong to Pepin, even if those items were inadmissible, there is no proposition that counsel must always seek to exclude objectionable evidence; rather our jurisprudence "mandates deference to the tactics of trial counsel." See Toccaline v. Commissioner of Correction , supra, 80 Conn. App. at 802. The certified question is: "Did the Appellate Court properly determine that the defendant's sixth amendment right to confrontation was not violated by testimony from a lab analyst regarding a known DNA profile generated from a swab processed by another analyst who did not testify at trial?" State v. Walker , 328 Conn. 934, 183 A.3d 634 (2018).

12493441

Allison E. MURRAY v. SUFFIELD POLICE DEPARTMENT

Murray v. Suffield Police Dep't

2018-03-27

No. 40317

651

651

180 A.3d 651

180

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.942366+00:00

Fastcase

Allison E. MURRAY v. SUFFIELD POLICE DEPARTMENT

Allison E. MURRAY v. SUFFIELD POLICE DEPARTMENT No. 40317 Appellate Court of Connecticut. Argued March 8, 2018 Officially released March 27, 2018

28

186

Per Curiam. The judgments are affirmed.

12503196

CITY OF NORWICH v. Irina LOSKOUTOVA et al.

City of Norwich v. Loskoutova

2018-11-28

AC 40821

1250

1250

196 A.3d 1250

196

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:41.731814+00:00

Fastcase

CITY OF NORWICH v. Irina LOSKOUTOVA et al.

CITY OF NORWICH v. Irina LOSKOUTOVA et al. AC 40821 Appellate Court of Connecticut. Submitted on briefs November 28, 2018 Officially released December 18, 2018

45

266

Per Curiam. The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

12504623

BANK OF AMERICA, NATIONAL ASSOCIATION, Successor Trustee v. David LIEBSKIND et al.

Bank of Am., Nat'l Ass'n v. Liebskind

2019-02-05

AC 40351

1157

1157

199 A.3d 1157

199

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:42.438369+00:00

Fastcase

BANK OF AMERICA, NATIONAL ASSOCIATION, Successor Trustee v. David LIEBSKIND et al.

BANK OF AMERICA, NATIONAL ASSOCIATION, Successor Trustee v. David LIEBSKIND et al. AC 40351 Appellate Court of Connecticut. Argued January 8, 2019 Officially released February 5, 2019

46

289

Per Curiam. The judgments are affirmed and the case is remanded for the purpose of setting new law days.

12504622

Valentine BUCKNOR v. GOLDEN HAWK, LLC

Bucknor v. Golden Hawk, LLC

2019-02-05

AC 41048

1157

1157

199 A.3d 1157

199

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:42.438369+00:00

Fastcase

Valentine BUCKNOR v. GOLDEN HAWK, LLC

Valentine BUCKNOR v. GOLDEN HAWK, LLC AC 41048 Appellate Court of Connecticut. Argued January 14, 2019 Officially released February 5, 2019

27

178

Per Curiam. The judgment is affirmed.

12504618

Margaret E. DAY, Coconservator (Estate of Susan D. Elia) v. Renee F. SEBLATNIGG et al.

Day v. Seblatnigg

2018-12-11

AC 38734

1103

1118

199 A.3d 1103

199

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:42.438369+00:00

Fastcase

DiPentima, C.J., and Prescott and Flynn, Js.

Margaret E. DAY, Coconservator (Estate of Susan D. Elia) v. Renee F. SEBLATNIGG et al.

Margaret E. DAY, Coconservator (Estate of Susan D. Elia) v. Renee F. SEBLATNIGG et al. AC 38734 Appellate Court of Connecticut. Argued September 6, 2018 Officially released December 11, 2018 James G. Green, Jr., with whom were Jeffrey A. Dorman, Hartford and, on the brief, Robert J. Mauceri, East Haven, for the appellant (defendant First State Fiduciaries, LLC). Bridgitte E. Mott, with whom was Richard E. Castiglioni, Stamford, for the appellee (plaintiff). DiPentima, C.J., and Prescott and Flynn, Js.

7330

45935

FLYNN, J. The principal issue in this case is whether a settlor of a revocable trust who is later under a voluntary conservatorship may, while under conservatorship, acting on her own behalf, convert the trust to an irrevocable trust without action by her conservator and without her conservator obtaining Probate Court approval. The defendant, First State Fiduciaries, LLC, appeals from the judgment of the Superior Court granting the motion of the plaintiff, Margaret E. Day, coconservator of the estate of Susan D. Elia, for summary judgment and declaring that the Susan D. Elia Irrevocable Trust dated September 15, 2011 (Delaware irrevocable trust) was void ab initio and unenforceable, and that all transfers of assets from Elia's conservatorship estate to the Delaware irrevocable trust or its wholly owned limited liability company, Peace at Last, LLC, were unauthorized and improper and ordering that the assets from Elia's conservatorship estate that were transferred to the Delaware irrevocable trust to Peace at Last, LLC, shall be immediately returned to Elia's conservatorship estate. On appeal, the defendant claims that the court erred in granting the plaintiff's motion for summary judgment in the absence of an indispensable party, Bryn Mawr Trust Company of Delaware (Bryn Mawr). We conclude that the court properly determined that Elia could not lawfully replace the Connecticut revocable trust with the Delaware irrevocable trust while under a conservatorship. We also conclude that the court properly determined that the former conservator of Elia's estate, Renee F. Seblatnigg, could not transfer the assets of the conservatorship estate to the Delaware irrevocable trust and that this transfer was void ab initio. Finally, we conclude that Bryn Mawr was not an indispensable party. We affirm the judgment of the trial court. On January 18, 2014, the plaintiff initiated the present action in which she sought a declaratory judgment that (1) the Delaware irrevocable trust was void ab initio and unenforceable; and (2) any and all assets transferred from Elia's estate to the Delaware Irrevocable Trust or to an entity owned by the Delaware Irrevocable Trust be returned to the estate. The following procedural history relates to the issues now on appeal. On February 26, 2015, the plaintiff moved for summary judgment. In its memorandum of decision, the Superior Court set forth the following undisputed material facts. "Elia is seventy-one years old. She suffers from advanced Parkinson's disease and lung cancer. In June, 2011, Elia applied to the Greenwich Probate Court for the voluntary appointment of a conservator of her person and her estate. Following a June 28, 2011 hearing in the Greenwich Probate Court, at which the court, Hopper, J. , saw Elia in person, heard her reason for seeking voluntary representation, and explained to her that appointing a conservator as requested would subject her and her property to the authority of the conservator, the court found that Elia resided or had domicile in the Greenwich Probate District, that the court had jurisdiction, that Elia had requested the appointment of a conservator of the person and the estate, and that the proposed conservators had accepted the position of trust. The Greenwich Probate Court accordingly granted Elia's application for voluntary representation. By decree issued on June 28, 2011 . the court appointed Seblatnigg the conservator of Elia's estate and Richard DiPaola . the conservator of Elia's person. "The June 28, 2011 decree provided that Seblatnigg, as the conservator of Elia's estate, had the power to manage the estate, to apply estate funds to support Elia, to pay her debts, and to collect debts due to her. At the time of Seblatnigg's appointment as conservator of Elia's estate, Elia owned or held an equitable interest in cash and securities valued in excess of $6,000,000, including those held in the Susan D. Elia Revocable Trust, a 2007 revocable trust governed by Connecticut law (the Connecticut revocable trust). "In September, 2011, Seblatnigg consulted with the managers of First State Fiduciaries, [Attorney] Robert Mauceri . and [Attorney] James Holder . regarding the creation of an asset protection plan for Elia. They recommended to Seblatnigg that Elia establish and fund a self-settled irrevocable Delaware asset protection trust and a limited liability company, to be owned by the trust, to hold her assets. "Seblatnigg, as conservator of Elia's estate, entered into an asset protection services agreement on Elia's behalf with First State Facilitators, LLC (First State Facilitators), an affiliate of First State Fiduciaries, on September 15, 2011. Seblatnigg, as conservator, also signed a legal representation agreement on behalf of Elia with Mauceri. On the same day, Seblatnigg met with Elia and supervised her execution of the instrument that created the Delaware irrevocable trust. The trust instrument named Seblatnigg and Salvatore Mulia . as the independent trustees of the Delaware irrevocable trust and named First State Fiduciaries as the protector of the Delaware irrevocable trust. Seblatnigg did not seek or obtain the approval of the Greenwich Probate Court to establish the Delaware irrevocable trust or to advise Elia to execute the trust instrument. "A Delaware limited liability company, Peace at Last . wholly owned by the Delaware irrevocable trust, was formed on September 15, 2011, to hold Elia's assets. Beginning on September 20, 2011, Seblatnigg directed the transfer of more than $6,000,000 in cash and securities from Elia's conservatorship estate and the Connecticut revocable trust to the Delaware irrevocable trust or to Peace at Last. Seblatnigg did not seek or obtain the approval of the Greenwich Probate Court before she transferred the assets to the [Susan D. Elia Irrevocable Trust dated September 15, 2011 (Delaware irrevocable trust) ] . or to Peace at Last. "Seblatnigg resigned as the conservator of Elia's estate on April 5, 2013. The Greenwich Probate Court accepted Seblatnigg's resignation on May 21, 2013, subject to the allowance of her final account, and appointed Mulia the successor conservator of Elia's estate. "The Greenwich Probate Court appointed the plaintiff the coconservator of Elia's person on May 23, 2013. On January 9, 2014, at Elia's request, the Greenwich Probate Court issued a decree . naming the plaintiff the coconservator of Elia's estate for the limited purpose of any matters relating to Elia's interest in the Delaware irrevocable trust, because Mulia had a possible conflict of interest. "In March 2014, shortly after the plaintiff commenced this declaratory judgment action, First State Fiduciaries filed a petition in the Delaware Court of Chancery (Delaware action) in which it sought an order compelling Morgan Stanley Smith Barney, LLC (Morgan Stanley), which held the assets of the Delaware irrevocable trust, to transfer the trust assets to the purported new sole trustee, the Bryn Mawr Trust Company of Delaware . Morgan Stanley filed an answer and counterpetition in the nature of an interpleader, in which it maintained that it had no interest in the trust assets, on May 19, 2014. "On May 16, 2014, the plaintiff moved to intervene in the Delaware action. The motion to intervene was granted on June 10, 2014. The plaintiff filed a response, counterclaim, and third-party complaint in the Delaware action that day. On January 29, 2015, the plaintiff moved for a protective order and to stay discovery in the Delaware action. Morgan Stanley joined in the plaintiff's motion to stay the Delaware action. "On February 13, 2015, a special master in the Delaware action recommended that the court deny First State Fiduciaries' motion to compel and grant the plaintiff's motion for a protective order and a stay of any discovery. In a letter to counsel dated August 4, 2015, the special master indicated that she was recommending that the court stay the Delaware action in its entirety." (Footnotes omitted.) The court granted the plaintiff's motion for summary judgment. The court determined that "[n]o genuine issue of material fact exists as to whether Elia was under a voluntary conservatorship at the time she executed the instrument creating the Delaware irrevocable trust. While Seblatnigg, as conservator, could have created and funded the Delaware irrevocable trust with the Greenwich Probate Court's approval, she chose instead to do so without the court's authorization" in violation of General Statutes § 45a-655 (e). The court ruled that "[u]ntil such time [as Elia sought and obtained release from the conservatorship pursuant to General Statutes § 45a-647 ] . the conservator, as the agent of the Probate Court [had] the exclusive authority to manage the affairs of the conserved person." The court concluded that the Delaware irrevocable trust was void ab initio. In addressing an issue of joinder raised by the defendant in its memorandum in opposition to the plaintiff's motion for summary judgment, the court concluded that Bryn Mawr was not a necessary party to the action. This appeal followed. We first set forth the relevant standards that generally govern our review of a court's decision to grant a motion for summary judgment. "The standards governing our review of a trial court's decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49 ] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... A material fact . [is] a fact which will make a difference in the result of the case.... Finally, the scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America , 310 Conn. 304, 312-13, 77 A.3d 726, 731 (2013). Having set forth the relevant standard of review, we now turn to the defendant's claims on appeal. I We begin by addressing the defendant's jurisdictional claim that the court improperly concluded that the plaintiff had standing to commence this declaratory judgment action on behalf of Elia's conservatorship estate. "The issue of standing implicates the trial court's subject matter jurisdiction and therefore presents a threshold issue for our determination." New Hartford v. Connecticut Resources Recovery Authority , 291 Conn. 511, 518, 970 A.2d 583 (2009). The defendant argues that the plaintiff lacks standing to bring the action because she failed to obtain Probate Court approval to initiate the action pursuant to General Statutes § 45a-655 (a). We disagree. "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.... Because a determination regarding the trial court's subject matter jurisdiction raises a question of law, our review is plenary.... "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.... When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . standing by allegations of injury [that he or she has suffered or is likely to suffer]. Similarly, standing exists to attempt to vindicate arguably protected interests.... "Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.... The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action].... Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . has been adversely affected." (Citations omitted; internal quotation marks omitted.) Wilcox v. Webster Ins., Inc. , 294 Conn. 206, 213-15, 982 A.2d 1053 (2009). At issue is the plaintiff's standing to initiate the underlying action. The plaintiff was not the initial conservator of Elia's estate, but rather was appointed by the Probate Court in January, 2014, as coconservator of Elia's estate "for the limited purpose" of matters relating to Elia's interest in the Delaware irrevocable trust. The defendant contends that the plaintiff lacks standing because she failed to obtain Probate Court approval to initiate the declaratory judgment action and that § 45a-655 (a) authorizes only debt collection actions, which the declaratory judgment action is not. We disagree. The defendant misinterprets the language of § 45a-655 (a). That section permits a conservator of the estate to sue on behalf of the conserved person. General Statutes § 45a-655 (a) lists the duties of the conservator of the estate, whether voluntarily or involuntarily appointed, and provides that a conservator of the estate "shall manage all the estate . and may sue for and collect all debts due to the conserved person." "Property management" is defined in General Statutes § 45a-644 (j) as "actions to (1) obtain, administer, manage, protect and dispose of real and personal property, intangible property, business property, benefits and income, and (2) deal with financial affairs." The plaintiff was specifically appointed to deal with matters relating to Elia's interest in the Delaware irrevocable trust. A conservator is not required to obtain Probate Court approval prior to commencing suit on behalf of the ward if that power is a necessary implication of § 45a-655 (a). See Doyle v. Reardon , 11 Conn. App. 297, 527 A.2d 260 (1987). In Doyle , this court held that Probate Court permission was not necessary to engage the services of an attorney to investigate a conveyance of real estate from the ward to the plaintiff prior to the appointment of an involuntary conservator. Id., at 302-303, 527 A.2d 260. The court interpreted General Statutes § 45-75, now § 45a-655, and prior case law, to mean that Probate Court approval is not required in order for the conservator to bring suit, but rather, if "prior permission to bring suit is not sought, the conservator proceeds at his peril in terms of recouping the expenses of such a suit, in the event he engages the services of an attorney to prosecute the action." Id., at 301, 527 A.2d 260. Accordingly, we read Doyle to mean that failure to obtain Probate Court approval may affect a conservator's ability to recoup litigation expenses, but does not impact her ability to initiate suit in that or analogous matters unless prior approval is specifically required by statute. Consistent with our decision in Doyle , we construe the statutory scheme adopted by our legislature in enacting § 45a-655 (a) to grant to conservators the necessary power to commence litigation where such a course is necessarily implied by a conservator's duty to manage the ward's affairs. That statutory scheme sets forth certain actions where prior Probate Court approval is required before certain actions are permitted by a conservator. For example, in § 45a-655 (e), the legislature clearly provides that conservators must obtain Probate Court approval prior to taking certain actions. That section provides: "[u]pon application of a conservator of the estate , after hearing with notice . the court may authorize the conservator to make gifts or other transfers of income and principal from the estate of the conserved person" provided certain factors are satisfied. (Emphasis added.) General Statutes § 45a-655 (e). The legislature clearly knew how to require the conservator to obtain prior Probate Court approval when it wanted to do so. Significantly, the legislature did not include language requiring Probate Court approval in § 45a-655 (a) when discussing a conservator's ability to initiate suit on behalf of a conserved person. "Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . is significant to show that a different intention existed.... That tenet of statutory construction is well grounded because [t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them." (Internal quotation marks omitted.) Hatt v. Burlington Coat Factory , 263 Conn. 279, 310, 819 A.2d 260 (2003). We conclude that the plaintiff has statutory standing to bring the declaratory judgment action because a conservator of the estate has such power as is "expressly or impliedly given to [her] by [ § 45a-655 ]." (Internal quotation marks omitted.) Luster v. Luster , 128 Conn. App. 259, 270, 17 A.3d 1068, cert. granted, 302 Conn. 904, 23 A.3d 1243 (2011) (appeal dismissed April 12, 2012). The power of conservators of the estate to initiate suit on behalf of a conserved person has been broadly interpreted. "In Connecticut, there are many examples in our case law of conservators bringing suit on behalf of their wards to protect their interests." Id., at 272-73, 17 A.3d 1068. Although § 45a-655 (a) does not expressly provide that a conservator may initiate a declaratory judgment action questioning the validity of a trust created by a voluntarily conserved person and created without the former conservator having obtained Probate Court approval, such power is reasonably implied from § 45-655 (a) and from case law. See Doyle v. Reardon , supra, 11 Conn. App. at 297, 527 A.2d 260. II We next turn to the defendant's claim that the court erred in rendering summary judgment in the absence of a necessary party, Bryn Mawr, the putative trustee of the Delaware irrevocable trust. We disagree. In its opposition to the plaintiff's motion for summary judgment, the defendant argued that Bryn Mawr, as trustee of the Delaware irrevocable trust, was a necessary party. In its memorandum of decision, the court rejected this argument and reasoned that Bryn Mawr is not a necessary party to the court's determination of whether the Delaware irrevocable trust was void ab initio. "Necessary parties . are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it.... [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties.... A party is deemed necessary if its presence is absolutely required in order to assure a fair and equitable trial.... The decision whether to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court." (Citations omitted; internal quotation marks omitted.) In re Devon B. , 264 Conn. 572, 579-81, 825 A.2d 127 (2003). "It is well settled that the failure to join an indispensable party does not deprive a trial court of subject matter jurisdiction. See General Statutes § 52-108 and Practice Book § 9-18.... [T]he failure to join an indispensable party results in a jurisdictional defect only if a statute mandates the naming and serving of [a particular] party.... Conversely, when a party is indispensable but is not required by statute to be made a party, the [trial] court's subject matter jurisdiction is not implicated and dismissal is not required.... Although a court may refuse to proceed with litigation if a claim cannot properly be adjudicated without the presence of those indispensable persons whose substantive rights and interests will be necessarily and materially affected by its outcome, the absence of such a party does not destroy jurisdiction." (Citations omitted; emphasis in original; internal quotation marks omitted.) General Linen Service Co. v. Cedar Park Inn &Whirlpool Suites , 179 Conn. App. 527, 532-33, 180 A.3d 966 (2018). The defendant argues that subject matter jurisdiction is implicated and that the joinder of Bryn Mawr as a necessary party is mandated because Bryn Mawr is the current sole trustee of the Delaware irrevocable trust and, as such, holds legal title to the assets in the trust. The defendant contends that Bryn Mawr alone has the power to transfer those assets out of the trust in the event that this court affirms the trial court's decision that the Delaware irrevocable trust is void ab initio. We first conclude that no statute mandates the naming and serving of a putative trustee and, accordingly, joinder of Bryn Mawr is not so mandated by statute in this case. Furthermore, the defendant has not shown that the plaintiff's or the court's failure to join Bryn Mawr as a party infringes on Bryn Mawr's due process rights. See Wells Fargo Bank, N.A. v. Treglia , 156 Conn. App. 1, 16 n.6, 111 A.3d 524 (2015) ("[j]oinder of a necessary party is mandatory when that party's due process rights are implicated in the action"). Bryn Mawr is a party to the Delaware action during which the Connecticut litigation was discussed, and the Delaware proceedings were stayed pending a final judgment in this Connecticut action. Bryn Mawr, therefore, had knowledge of the Connecticut litigation and chose not to intervene. A substitute trustee of an irrevocable trust that was void at its creation has not been deprived of due process rights by failure to be joined as a party. Furthermore, the defendant, First State Fiduciaries, which is a party because of its common interest, can adequately represent Bryn Mawr's interest in this action. We next determine, in the absence of a statute mandating joinder, whether the trial court can "proceed to a decree, and do complete and final justice" without Bryn Mawr joined in the declaratory judgment action. In re Devon B. , supra, 264 Conn. at 579-81, 825 A.2d 127. The following law on trustees is informative. "[A]s a general rule, the trustee is a proper person to sue or be sued on behalf of a trust.... The trustee is the legal owner of trust property, and as such the trustee is the proper party to actions affecting title to trust property. Thus, a trustee is a necessary party to any suit or proceeding involving a disposition of trust property or funds." (Citations omitted; internal quotation marks omitted.) Bank of New York v. Bell , 142 Conn. App. 125, 133 n.5, 63 A.3d 1026, cert. denied, 310 Conn. 901, 75 A.3d 30 (2013), and cert. denied, 310 Conn. 901, 75 A.3d 31 (2013). "The trustee has a title (generally legal title) to the trust property, usually has its possession and a right to continue in possession, and almost always has all the powers of management and control which are necessary to make the trust property productive and safe." (Internal quotation marks omitted.) Naier v. Beckenstein , 131 Conn. App. 638, 646, 27 A.3d 104, cert. denied, 303 Conn. 910, 32 A.3d 963 (2011). The undisputed evidence in this case demonstrates that a question existed in the Delaware action as to whether Bryn Mawr properly was appointed trustee of the Delaware irrevocable trust. The defendant filed a petition in the Delaware action seeking an order compelling Morgan Stanley to transfer the trust assets to Bryn Mawr. Morgan Stanley filed an interpleader in the Delaware action, in which Morgan Stanley stated that it had not transferred the assets to Bryn Mawr because the defendant had not produced evidence sufficient to establish that Bryn Mawr was the duly appointed trustee of the trust. The Delaware Court of Chancery appointed a special master to oversee the assets of the Delaware trust, and the special master was given authority to execute the documents necessary to transfer the trust assets to the Wilmington Trust Company, the new custodian. The defendant's counsel conceded at oral argument before this court that the possession of the assets at issue is currently with the Delaware Chancery Court, which has stayed the action before it, pending a final judgment in this action. In her prayer for relief, the plaintiff sought a declaratory judgment that the Delaware irrevocable trust be declared void ab initio and sought the relief that "any and all assets transferred to the trust or any entity owned by the trust be returned to the conservatorship estate from whence it came." The issue before the trial court did not involve the trustee protecting any wrongful interference with the trust assets, rather the issue before the court was the validity of the trust. The presence of Bryn Mawr, which entity does not now have possession of the trust assets, in an action involving the validity of the trust due to the conservator's failure to obtain Probate Court approval, is not absolutely required in order to assure a fair and equitable trial. Furthermore, Bryn Mawr's interests are aligned sufficiently with that of the defendant, which, as the protector of the Delaware irrevocable trust, had the duty to manage and the power to remove the trustee under the terms of the trust. The trial court concluded, and we agree, that there is no genuine issue of material fact that the Delaware irrevocable trust was void ab initio. Bryn Mawr does not have an interest in a trust that never lawfully existed, and, accordingly, does not have the power to transfer the assets, which are not currently in its possession. Accordingly, the court properly determined that there was no genuine issue of material fact that Bryn Mawr was not a necessary party in this action. III The defendant next claims that the court erred when it concluded that Elia lacked the ability to execute the Delaware irrevocable trust while under a voluntary conservatorship. We disagree. The court determined that there was no genuine issue of material fact that Elia was under a voluntary conservatorship at the time she executed the instrument, which identified her as the grantor, creating the Delaware irrevocable trust. The court determined, as a matter of law, that Elia did not have the capacity to form the Delaware irrevocable trust because she was voluntarily conserved at the time. The issue before us concerns a voluntary conservatorship of the estate. Unlike an involuntary conservatorship wherein the Probate Court must find that the respondent is "incapable of managing his or her affairs or is incapable of caring for him or herself"; General Statutes § 45a-644 (e) ; the Probate Court, when granting an application for a voluntary conservatorship, does not make a finding that the voluntarily conserved person is incapable of managing her affairs. See General Statutes § 45a-644 (g). A "conservator of the estate" is defined in § 45a-644 (a) as "a person . appointed by the Court of Probate . to supervise the financial affairs of a person found to be incapable of managing his or her own affairs or of a person who voluntarily asks the Court of Probate for the appointment of a conservator of the estate." The statutory duties of a conservator of the estate, whether voluntarily or involuntarily appointed, "are clearly defined in General Statutes § 45a-655... A conservator of the estate shall manage all the estate and apply so much of the net income thereof, and, if necessary, any part of the principal of the property, which is required to support the ward and those members of the ward's family whom he or she has the legal duty to support and to pay the ward's debts ." (Emphasis omitted; footnote omitted; internal quotation marks omitted.) Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore , 257 Conn. 531, 539-40, 778 A.2d 93 (2001). "In general terms, a conservator of the estate is required to manage the conservatee's estate for the benefit of the conservatee ." Gross v. Rell , 304 Conn. 234, 250-51, 40 A.3d 240 (2012). "A conservator has an implied power to enter into contracts on behalf of [her] ward's estate where such contracts involve the exercise of the express or implied powers which are granted to the conservator by statute." Elmendorf v. Poprocki , 155 Conn. 115, 118, 230 A.2d 1 (1967). The conservatorship statutes have been revised in 2007 to reflect that a conservator is to manage an estate in the least restrictive means possible. Section 45a-655 (a), which lists the duties of voluntary and involuntary conservators of the estate, provides that: "The conservator shall use the least restrictive means of intervention in the exercise of the conservator's duties and authority." Section § 45a-644 (k) defines "least restrictive means of intervention" as a "means of intervention for a conserved person that is sufficient to provide, within the resources available to the conserved person either from the conserved person's own estate or from private or public assistance, for a conserved person's personal needs or property management while affording the conserved person the greatest amount of independence and self-determination." Our Supreme Court stated in Kortner v. Martise , 312 Conn. 1, 57, 91 A.3d 412 (2014), that "[t]he current statutory scheme governing conservatorships and its historical development make it abundantly clear that the legislature intends for conserved persons to retain as much decision-making authority and independence as possible, and that a conservator's role should be limited so as to accomplish that objective. Indeed, the fact that a conservator is appointed does not mean that the conserved person loses all of his or her civil rights. Rather, the conservator is to manage the conserved person's affairs through the least restrictive means possible." However, the 2007 revision does not mean, as the defendant suggests, that a voluntarily conserved person retains control over her estate. The statutory amendment, which requires that a conservator carry out her duties using the least restrictive means possible, does not alter the power and duties of a conservator. Rather, it establishes the method through which a conservator must carry out her statutory duties. To interpret this statutory revision to eliminate the responsibilities a conservator has with respect to a conserved person's estate could effectively negate the powers and duties given to conservators in § 45a-655. This would run afoul of the principle of statutory construction that the legislature does not intend to enact meaningless provisions. See Lopa v. Brinker International, Inc. , 296 Conn. 426, 433-34, 994 A.2d 1265 (2010). The clear language of § 45a-655 gives control over the estate to the conservator, and provides that the "conservator shall manage all the estate." General Statutes § 45a-655. It is inconsistent with the language of § 45a-655 and the filing of an application for a voluntary conservatorship pursuant to General Statutes § 45a-646, for an involuntarily conserved person to retain control over the estate. Such a result would make meaningless the words of the statutes. "It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions.... [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous.... Because [e]very word and phrase [of a statute] is presumed to have meaning . [a statute] must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant." (Internal quotation marks omitted.) Id., at 433, 994 A.2d 1265. "Because no finding of incapacity is reached when applications for voluntary conservatorships are granted, and because the enabling statute is silent, it is not clear to what extent persons so represented remain legally capable to contract, convey title, or have charge of their persons. Retention of legal capacities of this kind would appear inconsistent with the purposes of voluntary representation." R. Folsom & G. Wilhelm, Connecticut Estates Practice Series: Incapacity, Powers of Attorney & Adoption in Connecticut (3d Ed. 2018) § 2:8, p. 129. Consistent with this notion, § 45a-646 provides, in relevant part, that the court, upon hearing a respondent's application for a voluntary conservatorship, is to explain "to the respondent that granting the petition will subject the respondent or respondent's property, as the case may be, to the authority of the conservator ." In contrast to an involuntary conservatorship, a voluntarily conserved person may seek to be released from the voluntarily conservatorship, thereby regaining control of her estate. General Statutes § 45a-647 provides: "Any person who is under voluntary representation as provided by section 45a-646 shall be released from voluntary representation upon giving thirty days' written notice to the Court of Probate." Accordingly, a person voluntarily may file an application to have a conservator control her estate; see General Statutes § 45a-646 ; and a voluntarily conserved person may also seek to regain control of her estate. See General Statutes § 45a-647. It would make meaningless the Probate Court's granting of an application for a voluntary conservator to permit a duality of control over assets due to the confusion that can be sown when a conservator and a voluntarily conserved person take conflicting action with respect to the same asset. Section 45a-647 makes such conflict unnecessary by permitting a voluntarily conserved person to be released from voluntary representation by giving thirty days written notice; it contemplates a legal procedure that would remove a conservator at the option of the person conserved, thereby avoiding potential conflicts between an action taken by a conservator and an opposing action taken by a voluntarily conserved person. Because a voluntarily conserved person does not retain control over her estate, no genuine issue of material fact existed that Elia lacked the legal capacity to form the Delaware irrevocable trust. Accordingly, we conclude that the court properly determined that no genuine issue of material fact existed that the Delaware irrevocable trust was void ab initio. The judgment is affirmed. In this opinion the other judges concurred. The complaint also named as defendants Renee F. Seblatnigg, sole independent trustee and former conservator of the Susan D. Elia Irrevocable Trust dated September 15, 2011; Edward E. Pratesi; Harry D. Lewis; Susan D. Elia; Marc W. Elia, as guardian of minor children Alden H. Elia, Ryder C. Elia, and Schuyler H. Elia; Christine E. Elia, as guardian of minor child Ennio Barry Simon; Attorney General George Jepsen; Sarah Wilbur Day; Matthew Lewis Striplin; Samuel Bowden Striplin; and Suzanne Palazzi Day. The claims against Seblatnigg, Lewis and Pratesi were withdrawn. The court granted the motions for default as to Marc Elia, Matthew Striplin, Samuel Striplin, Sarah Day, and Suzanne Day. First State Fiduciaries, LLC, alone filed the present appeal. Accordingly, we will refer to First State Fiduciaries, LLC, as the defendant. By agreement of the parties and with the approval of the Delaware Court of Chancery, these assets were transferred to an account at the Wilmington Trust Company. The defendant, in its "Memorandum in Opposition to Plaintiff's Motion for Summary Judgment," raised for the first time the issue that Bryn Mawr was not joined in the action and is a necessary party. On September 3, 2015, the defendant filed a motion to strike arguing that Bryn Mawr was a necessary party, which motion was not ruled on by the court. In its memorandum of decision on the plaintiff's motion for summary judgment, the court addressed the issue of joinder. The court ordered that the assets that were transferred to the Delaware irrevocable trust be returned to Elia's conservatorship estate. No claim was made on appeal that the assets should be returned to the Connecticut revocable trust rather than to Elia's conservatorship estate. General Statutes § 45a-655 (e) provides in relevant part: "Upon application of a conservator of the estate, after hearing with notice to the Commissioner of Administrative Services, the Commissioner of Social Services and to all parties who may have an interest as determined by the court, the court may authorize the conservator to make gifts or other transfers of income and principal from the estate of the conserved person in such amounts and in such form, outright or in trust, whether to an existing trust or a court-approved trust created by the conservator, as the court orders to or for the benefit of individuals, including the conserved person, and to or for the benefit of charities, trusts or other institutions . Such gifts or transfers shall be authorized only if the court finds that . (3) the estate of the conserved person and any proposed trust of which the conserved person is a beneficiary is more than sufficient to carry out the duties of the conservator as set forth in subsections (a) and (b) of this section, both for the present and foreseeable future, including due provision for the continuing proper care, comfort and maintenance of such conserved person in accordance with such conserved person's established standard of living and for the support of persons the conserved person is legally obligated to support . The court shall give consideration to the following: (A) The medical condition of the conserved person, including the prospect of restoration to capacity; (B) the size of the conserved person's estate; (C) the provisions which, in the judgment of the court, such conserved person would have made if such conserved person had been capable, for minimization of income and estate taxes consistent with proper estate planning; and (D) in the case of a trust, whether the trust should be revocable or irrevocable, existing or created by the conservator and court approved." The defendant raised the issue of standing in its motion in opposition to the plaintiff's motion for summary judgment, and the court addressed that issue in its memorandum of decision. The defendant raised the issue of standing before this court for the first time in its reply brief. Although arguments raised for the first time in reply briefs are disfavored, we will review the issue because it implicates subject matter jurisdiction. See Peters v. Dept. of Social Services , 273 Conn. 434, 441, 870 A.2d 448 (2005) (issues of subject matter jurisdiction may be raised at any time). The defendant raised for the first time at oral argument before this court the issue that Peace at Last, LLC, is a necessary party. The defendant has not directed us to any statute, nor are we aware of any, that mandates that a company that had title to a trust asset in a trust declared to be void ab initio, is a necessary party to a declaratory judgment action such as this one. Because Peace at Last, LLC, does not have a statutory right to intervene, subject matter jurisdiction is not implicated, and the claim may not be raised at any time. See General Linen Service Co. v. Cedar Park Inn & Whirlpool Suites , 179 Conn. App. 527, 532-33, 180 A.3d 966 (2018) (failure to join indispensable party results in jurisdictional defect only if statute mandates naming and serving of particular party). Because the issue was raised for the first time during oral argument and does not implicate subject matter jurisdiction, we conclude that the issue has not been properly briefed and decline to consider it. It is well established that arguments raised for the first time at oral argument are not reviewable. See Alexandre v. Commissioner of Revenue Services , 300 Conn. 566, 586 n.17, 22 A.3d 518 (2011). "In the past, there had been a distinction between 'necessary' and 'indispensable' parties. See Shields v. Barrow , 58 U.S. (17 How.) 130, 139, 15 L.Ed. 158 (1855) (defining both terms). Over time, however, this distinction has become less pronounced; see Sturman v. Socha , 191 Conn. 1, 6, 463 A.2d 527 (1983) (recognizing that misleading nature of terms 'has resulted in a blurring of the distinction typically drawn between them'); and provisions of our Practice Book and General Statutes currently refer only to necessary parties. See, e.g., Practice Book § 9-6 and 9-24 ; General Statutes § 8-8 (f) and 12-638n." In re Devon B. , supra, 264 Conn. at 580 n.12, 825 A.2d 127. The defendant argues that a genuine issue of material fact exists as to whether Seblatnigg created the Delaware irrevocable trust. The defendant contends that the trust indenture establishes that Elia signed the trust as grantor, thereby creating the Delaware irrevocable trust. The defendant directed our attention to the affidavits of Seblatnigg and Robert Mauceri, both of whom were with Elia when she executed the Delaware irrevocable trust. Seblatnigg stated in her affidavit that Elia created the Delaware irrevocable trust, and Mauceri explained that Elia "exhibited complete comprehension and subtle wit." The court concluded that there was "no genuine issue of material fact as to whether Elia was under a voluntary conservatorship at the time she executed the instrument creating the Delaware irrevocable trust." Although not a model of clarity, the court determined that "Seblatnigg, as conservator, could have created and funded the Delaware irrevocable trust with the Greenwich Probate Court's approval, she chose instead to do so without the court's authorization." The court clarified that the use of the term "created," with respect to Seblatnigg was referencing an asset protection services agreement with First State Facilitators and a legal representation agreement with Mauceri, on Elia's behalf. It is important to note that the court's principal conclusion that unless Elia sought and obtained release from the conservatorship pursuant to § 45a-647, the conservator, as the agent of the Probate Court, had exclusive authority to manage Elia's affairs. The court determined that there was no genuine issue of material fact that Elia executed the instrument creating the Delaware irrevocable trust, and the defendant has not directed us to any evidence in the record, nor are we aware of any that creates an issue of material fact as to this issue. The defendant also argues that a genuine issue of material fact exists as to whether Seblatnigg was acting in her role as conservator of the estate, or as cotrustee of the Connecticut revocable trust, when she transferred assets from the Connecticut revocable trust to the Delaware irrevocable trust, and whether conservatorship assets were transferred into the new Delaware trust. This is not a material fact. The defendant acknowledges that Elia signed the trust as grantor and, thereby, created the Delaware irrevocable trust. However, a voluntarily conserved person does not retain the power to manage his or her own property unless the conserved person terminates the voluntary conservatorship pursuant to § 45a-647. The defendant also claims that the court erred when it held that assets legally titled to the Connecticut revocable trust form part of the conservatorship estate. The defendant's claim regarding the role Seblatnigg acted under implicates the issue before the trial court of whether, pursuant to § 45a-655, Seblatnigg was required to obtain Probate Court approval for the creation and transferring of assets to the Delaware irrevocable trust. Whether Seblatnigg was required to obtain Probate Court approval is not a question we need to resolve. In the absence of Probate Court approval, whether required or not, what remains is a voluntarily conserved individual executing the Delaware irrevocable trust instrument. As a result, the trust that the conserved person created is void ab initio, and the remaining issues need not be resolved on appeal.

12493270

STATE of Connecticut v. Miguel JUAREZ

State v. Juarez

2018-02-06

AC 38953

1015

1027

180 A.3d 1015

180

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:29.942366+00:00

Fastcase

DiPentima, C.J., and Lavine and Sheldon, Js.

STATE of Connecticut v. Miguel JUAREZ

STATE of Connecticut v. Miguel JUAREZ AC 38953 Appellate Court of Connecticut. Argued October 24, 2017 Officially released February 6, 2018 A. Paul Spinella, Hartford, for the appellant (defendant). James M. Ralls, assistant state's attorney, with whom, on the brief, were David I. Cohen, former state's attorney, and James M. Bernardi, supervisory assistant state's attorney, for the appellee (state). DiPentima, C.J., and Lavine and Sheldon, Js.

4829

28681

SHELDON, J. The defendant, Miguel Juarez, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes § 53a-48 and 53a-54a, and attempt to commit murder in violation of General Statutes § 53a-49 and 53a-54a. On appeal, the defendant claims that (1) the evidence adduced at trial was insufficient to support his conviction of either charge, and (2) the state failed to prove the charges of which he was convicted as they were set forth in its long form information. We affirm the judgment of the trial court. The jury was presented with evidence of the following facts on which it could have based its verdict. In December, 2009, German Zecena approached the defendant and asked to borrow $300 from him because he was unemployed and his mother was sick. Zecena had worked for the defendant's landscaping company for two seasons prior to that date. The defendant gave Zecena the $300 that he asked for, and he asked Zecena to follow his wife "to see who she was seeing and if she was with a boyfriend or not." The defendant told Zecena that "he knew or he kind of knew that [his wife] had a boyfriend and, if that in fact was the case, then he was going to get a divorce." The defendant asked Zecena to go to the lower part of the Stamford Mall parking lot to see if the defendant's wife's car was there, and if she was there, to see if anybody was with her. Thereafter, Zecena observed the defendant's wife at the mall "three or four times with the same person." Zecena witnessed the defendant's wife and that man, later identified as William Forte, kissing. When Zecena told the defendant that he had witnessed his wife kissing another man at the mall, the defendant became upset and called his wife various names, using "curse words." Thereafter, in addition to sending Zecena to the mall to look for his wife, the defendant asked Zecena to drive by Forte's house, which was located in Greenwich, to see if his wife was there. When Zecena drove by Forte's house, he saw Forte sitting beside the defendant's wife on the stairs outside of the house. Zecena observed the couple talking, hugging and kissing. The defendant also instructed Zecena to look for his wife around the area of exit five on Interstate 95. At that location, Zecena saw the defendant's wife and Forte inside a car, talking, hugging and kissing. Zecena subsequently followed the defendant's wife, at the defendant's direction, five or six more times. Zecena's relationship with the defendant continued into the spring of 2010, when Zecena started working for another landscaping company. In that time frame, at the defendant's request, Zecena would drive by Forte's house two or three times each week to see if the defendant's wife was there. Between February 22, 2010, and June 19, 2010, the defendant called Zecena, on average, ten to fifteen times each day. Zecena did not answer most of those calls, but when he did speak to the defendant, "[the defendant] always asked . if [Zecena had] seen his wife, if [Zecena] had passed by the house where his wife's boyfriend lived." At one point in the spring of 2010, Zecena met the defendant at a stone yard on Larkin Street in Stamford. In that meeting, after Zecena told the defendant that he had seen his wife with Forte, the defendant told Zecena that he would give him $5000 to kill Forte. When Zecena responded by telling the defendant that he did not have "sufficient courage" to kill Forte, the defendant asked Zecena to find someone else to kill Forte. Zecena agreed to find someone to kill Forte, although he testified that he "was going to ask [the defendant] for an additional $1000 . so that [he] could keep $500 for [him]self and then $500 for the other person that [he] was going to ask to find someone to do that job." The defendant thereafter called Zecena three or four times to receive updates as to Zecena's efforts to find someone to kill Forte. On June 10, 2010, Zecena approached Luis Miranda, whom Zecena had known for several years through Miranda's work as a bouncer at a bar in Stamford. Zecena asked Miranda if he knew someone who would kill Forte, and he offered Miranda $5000 if he would kill Forte, or $500 if he would find someone else to do it. On or about June 17, 2010, Miranda called Zecena and told him that he had found someone to "do that job." Miranda set up a meeting between Zecena and the "hit man" for June 19, 2010. Zecena called the defendant and told him that he had found someone to kill Forte, to which the defendant responded, "[t]hat['s] very well . go speak with that person." Zecena told the defendant that he "was going to interview . that guy" himself. Miranda was a police informant who regularly dealt with Stamford Police Officer Raphael Barquero. Miranda contacted Barquero to report the substance of his June 10, 2010 conversation with Zecena. Barquero told Miranda to try to get additional information from Zecena. To that end, Miranda called Zecena on or about June 14, 2010. Miranda testified that when Zecena had confirmed to him that he wanted to "go forward and talk to someone who would kill someone for him," Miranda told Zecena, at Barquero's instruction, that he would find someone to kill Forte. Barquero told Miranda that he would find another officer to pretend to be "a contract killer." On June 19, 2010, at about 4:30 or 5:30 p.m., Miranda called Zecena. Zecena told Miranda to "meet [off] exit five in front of CVS" in a shopping center in Greenwich. After that call, both Miranda and Detective Frederick Quesada of the Greenwich Police Department, the officer who would pretend to be the "contract killer," travelled to the location specified by Zecena. Upon arriving at the CVS parking lot, Miranda exited his car and looked around for Zecena. When he saw Zecena, he introduced Zecena to Quesada as the man who was "going to do the job." Upon meeting, Zecena and Quesada decided to talk in Quesada's car. Zecena "asked [Quesada] if he could kill a person." Zecena told Quesada that he wanted him to kill Forte because Forte owed him a lot of money. Quesada agreed to kill Forte. Zecena told Quesada that Forte lived "right around the corner" from where they were talking in the CVS parking lot and suggested that they drive to Forte's house. Quesada agreed and Zecena directed him to Forte's house, pointing out both his house and his car, a blue Volvo. Zecena told Quesada that, although Forte lived alone, he had frequently observed a ninety year old woman at Forte's house, whom he presumed to be Forte's mother. Zecena described Forte to Quesada as tall, bald and chubby. Zecena told Quesada that Forte did not leave his house often because he is "getting up in years." After driving through Forte's neighborhood, Zecena and Quesada stopped at a liquor store to buy some beer, which they drank while they talked. Throughout the course of their discussions, Zecena repeatedly told Quesada that he would like to know when Quesada intended to do the job because he wanted to be sure to have the money ready to pay Quesada when the job was done. Quesada indicated that he would do it either that night or the next night. During his meeting with Quesada, Zecena called the defendant. The defendant told Zecena that he was in a meeting and thus could not talk to him, but that he would call him back in thirty minutes. When Quesada and Zecena returned to the CVS parking lot, Quesada asked Zecena if he had "something [he] could use" to kill Forte. Zecena gave him a knife that he carried in his truck for work. Zecena also gave Quesada $80, with the promise of another $420 in "half an hour, an hour." Zecena told Quesada that he would call him when he got the $420, and Quesada stated that he would remain in the area to wait for his call and also to watch Forte's house. Zecena left the CVS parking lot to go home, but he was pulled over and arrested. Following an investigation, the defendant also was arrested and charged with conspiracy to commit murder and attempt to commit murder. The defendant was convicted of both charges, after a jury trial, and the court thereafter imposed a total effective sentence of twenty years incarceration, execution suspended after eight years, and five years probation. This appeal followed. I The defendant first challenges the sufficiency of the evidence presented at trial to sustain his conviction. We begin by recognizing that "[a] defendant who asserts an insufficiency of the evidence claim bears an arduous burden." (Internal quotation marks omitted.) State v. Leandry , 161 Conn. App. 379, 383, 127 A.3d 1115, cert. denied, 320 Conn. 912, 128 A.3d 955 (2015). "As to the standard of review for this claim, this court applies a two part test. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict.... [Second, we] . determine whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.... In this process of review, 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.... The issue is whether the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.... "The law relevant to an insufficiency of the evidence claim teaches 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 whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.... We, however, are mindful that [w]e do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.... Rather, we must defer to the jury's assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude." (Citations omitted; internal quotation marks omitted.) State v. Daniel B. , 164 Conn. App. 318, 325-26, 137 A.3d 837, cert. granted on other grounds, 323 Conn. 910, 149 A.3d 495 (2016). With these principles in mind, we turn to the defendant's claims of insufficiency. A The defendant claims that the evidence adduced at trial was insufficient to sustain his conviction of conspiracy to commit murder. Specifically, the defendant claims that the only evidence offered by the state of an agreement between him and Zecena was his initial offer to pay Zecena $5000 to kill Forte, and that that statement was "simply talk in the air, with no evidence of any discussion [of] who the victim was, and any details about how his murder would occur." We are not persuaded. "To prove the crime of conspiracy, in violation of § 53a-48, the state must establish beyond a reasonable doubt that an agreement existed between two or more persons to engage in conduct constituting a crime and that subsequent to the agreement one of the conspirators performed an overt act in furtherance of the conspiracy.... The state must also show intent on the part of the accused that conduct constituting a crime be performed.... Here the crime underlying the conspiracy is murder. Intent to cause the death of a person is an element of the crime [of murder] and must be proved beyond a reasonable doubt.... Intent may, however, be inferred from conduct . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.... "The existence of a formal agreement between parties need not be proved. It is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act.... Because of the secret nature of a conspiracy, a conviction is usually based on circumstantial evidence.... The state need not prove that the defendant and a coconspirator shook hands, whispered in each other's ear, signed papers, or used any magic words such as we have an agreement..... Rather, [t]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts.... Further, [c]onspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons.... "[T]he size of a defendant's role does not determine whether that person may be convicted of conspiracy charges. Rather, what is important is whether the defendant willfully participated in the activities of the conspiracy with knowledge of its illegal ends.... Participation in a single act in furtherance of the conspiracy is enough to sustain a finding of knowing participation." (Citations omitted; internal quotation marks omitted.) State v. Balbuena , 168 Conn. App. 194, 200-201, 144 A.3d 540, cert. denied, 323 Conn. 936, 151 A.3d 384 (2016). Here, the defendant's claim that his offer to Zecena of $5000 to kill Forte was "simply talk in the air" is belied by the record. Zecena's testimony that the defendant made that offer to him is sufficient to prove the defendant's intent to enter into an agreement with Zecena to have Forte killed. The defendant's conduct in the months that followed that initial statement-the hundreds of phone calls that he made to Zecena asking him to follow his wife and to ascertain whether he had found someone to kill Forte-was corroborative of his intent to have Forte killed. We also reject the defendant's claim that the state failed to prove that he intended to enter into a conspiratorial agreement with Zecena to kill Forte because the defendant "had no idea who the intended victim was ." Although neither the defendant nor Zecena knew Forte's name until Zecena was arrested, the evidence adduced at trial proved that the defendant directed Zecena to Forte's house, that Zecena had seen the defendant's wife at Forte's house, and that Zecena had seen Forte numerous times at various locations kissing and hugging the defendant's wife. On the basis of the foregoing, the jury reasonably could have concluded that the defendant intended to enter into an agreement with Zecena to kill his wife's boyfriend, and that he and Zecena knew who her boyfriend was, even if they did not know his name. We thus conclude that the evidence adduced at trial was sufficient to support the jury's guilty verdict on the charge of conspiracy to commit murder. B The defendant also claims that the evidence was insufficient to sustain his conviction of attempt to commit murder. Specifically, the defendant claims that the evidence was insufficient to prove that he had intended to cause Forte's death or had engaged in any conduct that could be construed as a substantial step in a course of conduct planned to culminate in the murder of Forte. We disagree. Section 53a-54a(a) defines murder, in relevant part, as follows: "A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person ." Section 53a-49(a) defines criminal attempt, in relevant part, as follows: "A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . (2) intentionally does . anything which, under the circumstances as he believes them to be, is an act . constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." Section 53a-49(b) provides in relevant part: "Conduct shall not be held to constitute a substantial step . unless it is strongly corroborative of the actor's criminal purpose...." "[T]he standard for the substantial step element of criminal attempt focuse[s] on what the actor has already done and not what remains to be done.... The substantial step must be at least the start of a line of conduct which will lead naturally to the commission of a crime.... What constitutes a substantial step in any given case is a question of fact.... [T]he ultimate measure of the sufficiency of the defendant's conduct to constitute a substantial step in a course of conduct planned to culminate in the commission of [a crime] is not, to reiterate, how close in time or place or final execution his proven conduct came to the consummation of that crime, but whether such conduct, if at least the start of a line of conduct leading naturally to the commission of the crime, strongly corroborated his alleged criminal purpose." (Internal quotation marks omitted.) State v. Daniel B. , supra, 164 Conn. App. at 331, 137 A.3d 837. In this case, the jury was instructed that the defendant could be found guilty of attempt to commit murder as an accessory. "[Section] 53a-8 (a) provides: A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.... To convict a defendant of a crime on the theory of accessorial liability under this statute, the state must prove both that a person other than the defendant acting as a principal offender, committed each essential element of that crime, and that the defendant, acting with the mental state required for the commission of that crime, solicited, requested, commanded, importuned or intentionally aided the principal offender to engage in the conduct constituting that crime. Since under our law both principals and accessories are treated as principals . if the evidence, taken in the light most favorable to sustaining the verdict, establishes that [the defendant] . did some act which . directly or indirectly counseled or procured any persons to commit the offenses or do any act forming a part thereof, then the [conviction] must stand." (Citation omitted; internal quotation marks omitted.) State v. Raynor , 175 Conn. App. 409, 426-27, 167 A.3d 1076, cert. granted on other grounds, 327 Conn. 969, 173 A.3d 952 (2017). Thus, in this case, to prove the defendant guilty of violating § 53a-49 and 53a-54a, the state had to prove beyond a reasonable doubt that the defendant or Zecena, with the intent to cause the death of Forte, committed an act that was a substantial step aimed at achieving his death. Here, on the basis of the defendant's offer to Zecena of $5000 to kill Forte, and his subsequent request that Zecena find someone else to kill Forte when Zecena stated that he did not have the courage to kill Forte himself, the jury reasonably could have inferred that the defendant intended to cause Forte's death. In addition to that initial meeting between the defendant and Zecena, the jury also heard that the defendant repeatedly asked Zecena to follow his wife and directed Zecena to various locations where he suspected Zecena might find his wife with Forte, including Forte's home in Greenwich. The defendant called Zecena hundreds of times in the early months of 2010 to ask Zecena if he had followed his wife, if he had seen his wife with Forte, and if he had found anyone to kill Forte. Zecena also testified that he called the defendant when Miranda informed him that he had found a hit man and that the defendant responded, "very well ." Given the nature and frequency of his communications with Zecena, it is reasonable to infer that the defendant "solicited, requested, commanded, importuned or intentionally aided Zecena" to engage in the attempt to murder Forte. Moreover, by soliciting and ultimately hiring Quesada to kill Forte, Zecena took substantial steps in a course of conduct planned to culminate in the murder of Forte. We thus conclude that the evidence was sufficient to sustain the defendant's conviction of attempt to commit murder. II The defendant finally claims that the state did not prove that he committed the offenses of which he was convicted in substantially the manner described in the information. Specifically, the defendant argues that the state failed to charge him with attempt to commit murder as an accessory, that the information pointed only to the dates of May and June, 2010, and that it was not proven that he had engaged in any criminal conduct during that time period. We reject the defendant's claims. "[G]enerally speaking, the state is limited to proving that the defendant has committed the offense in substantially the manner described in the information.... Despite this general principle, however, both this court and our Supreme Court have made clear that [t]he inclusion in the state's pleading of additional details concerning the offense does not make such allegations essential elements of the crime, upon which the jury must be instructed.... Our case law makes clear that the requirement that the state be limited to proving an offense in substantially the manner described in the information is meant to assure that the defendant is provided with sufficient notice of the crimes against which he must defend. As long as this notice requirement is satisfied, however, the inclusion of additional details in the charge does not place on the state the obligation to prove more than the essential elements of the crime." (Emphasis omitted; internal quotation marks omitted.) State v. Vere C. , 152 Conn. App. 486, 527, 98 A.3d 884, cert. denied, 314 Conn. 944, 102 A.3d 1116 (2014). "[A] defendant can gain nothing from [the claim that the pleadings are insufficient] without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information.... To establish prejudice, the defendant must show that the information was necessary to his defense, and not merely that the preparation of his defense was made more burdensome or difficult by the failure to provide the information." (Emphasis omitted; internal quotation marks omitted.) State v. Caballero , 172 Conn. App. 556, 566, 160 A.3d 1103, cert. denied, 326 Conn. 903, 162 A.3d 725 (2017). Although the state did not specifically charge the defendant in the long form information as an accessory to the crime of attempt to commit murder, it is well established that "a defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct." (Internal quotation marks omitted.) State v. James , 247 Conn. 662, 679, 725 A.2d 316 (1999) ; see State v. Vasquez , 68 Conn. App. 194, 215, 792 A.2d 856 (2002) (defendant charged with crime is on notice that he may be convicted as accessory to that crime). "Therefore, the fact that the defendant was not formally charged as an accessory does not preclude his being convicted as such . and a defendant who is charged with an offense should be on notice that he may be convicted as an accessory." (Internal quotation marks omitted.) State v. VanDeusen , 160 Conn. App. 815, 848-49, 126 A.3d 604, cert. denied, 320 Conn. 903, 127 A.3d 187 (2015). The defendant's challenge to his conviction of attempt to commit murder as an accessory on the ground that he was not charged as an accessory is thus without merit. We also reject the defendant's claim that the evidence adduced at trial was insufficient to prove his guilt of either of the charges of which he was convicted in substantially the manner described in the information because there was no evidence that he engaged in any criminal conduct on the dates alleged in the information. The defendant's claim in this regard fails for two reasons. First, the dates set forth in the information-"the months of May and June" on the conspiracy charge, and June 19, 2010, on the attempt charge-clearly relate to the period of time during which Zecena was actively seeking an individual to kill Forte, as requested by the defendant. The conduct of Zecena on those dates, as a coconspirator and the principal on the attempted murder charge, was sufficient to support the guilty verdict on those charges. Moreover, the defendant has not argued that he has been prejudiced by the inclusion of the dates in the information or that "substantial injustice was done to him because of the language of the information." (Internal quotation marks omitted.) State v. Caballero , supra, 172 Conn. App. at 566, 160 A.3d 1103. At trial, the defendant steadfastly denied any knowledge or involvement in a conspiracy or attempt to murder Forte. The defendant has not demonstrated, or even claimed, that the dates included in the information thwarted the preparation of that defense. On the basis of the foregoing, the defendant's claim that the state failed to prove his guilt in substantially the same manner in which he was charged in the state's information is without merit. The judgment is affirmed. In this opinion the other judges concurred. Neither Zecena nor the defendant knew Forte's name until they were arrested. Zecena testified that at no time did the defendant tell him that he had changed his mind and no longer wanted Zecena to find someone to kill Forte. Zecena testified at trial that this was a lie. The defendant also claims that the evidence was insufficient because Zecena was the only one who testified that the defendant made that statement and he was not a credible witness. It is axiomatic that a challenge to the credibility of a witness is not a valid ground on which to base a claim of evidentiary insufficiency. It is noteworthy that the defendant testified on his own behalf and that the jury thus had the opportunity to assess his credibility as well as Zecena's. General Statutes § 53a-49(b) also provides: "Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime." The defendant's offer to give Zecena $5000 to kill Forte, followed by his request that Zecena find someone who would kill Forte, would have been sufficient to constitute a substantial step in a course of conduct planned to culminate in the murder of Forte pursuant to § 53a-49(b)(7). The state, however, did not rely on the defendant's offer to Zecena as the substantial step required to prove his guilt. The fact that Zecena paid Quesada only $80 does not undermine our conclusion. See State v. Servello , 59 Conn. App. 362, 373, 757 A.2d 36, cert. denied, 254 Conn. 940, 761 A.2d 764 (2000). "To constitute a substantial step, however, consummation of [paying the hit man] is not required. Any other interpretation would impose a requirement of a more stringent standard of proof for attempt than is provided by § 53a-49." Id., at 375, 757 A.2d 36.

12510615

STATE of Connecticut v. Jodi M. DOJNIA

State v. Dojnia

2019-06-04

AC 40650

586

607

210 A.3d 586

210

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:56.130816+00:00

Fastcase

STATE of Connecticut v. Jodi M. DOJNIA

STATE of Connecticut v. Jodi M. DOJNIA AC 40650 Appellate Court of Connecticut. Argued January 7, 2019 Officially released June 4, 2019 Megan L. Wade, assigned counsel, with whom were James P. Sexton, assigned counsel, and, on the brief, Emily Graner Sexton, assigned counsel, for the appellant (defendant). Brett R. Aiello, special deputy assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Karen Diebolt, former assistant state's attorney, for the appellee (state). Sheldon, Keller and Flynn, Js. The listing of judges reflects their seniority status on this court as of the date of oral argument.

10015

61999

KELLER, J. The defendant, Jodi M. Dojnia, appeals from the judgment of conviction, rendered following a jury trial, of assault of a disabled person in the second degree in violation of General Statutes § 53a-60b (a) (1). The defendant claims that (1) § 53a-60b (a) (1) is unconstitutionally vague as applied to her conduct, (2) the evidence did not support a finding that the victim was physically disabled, and (3) prosecutorial impropriety during closing argument deprived her of a fair trial. We affirm the judgment of the trial court. On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In October, 2015, the defendant and the victim, who are sisters, resided in separate units of a duplex style home in Naugatuck that was owned by their mother. For years prior to the events at issue, the victim suffered from chronic pain and was physically limited in performing everyday tasks, such as standing, walking, and climbing stairs. For several years prior to the events at issue, the defendant and the victim did not have a good relationship. The relationship between the defendant and the victim worsened in January, 2015, when the defendant's son, who resided with the defendant, was involved in an altercation with the victim at her residence. According to the victim, during this prior incident, the defendant's son broke down her back door and attacked her, which led to his arrest. Tensions escalated further because the defendant was unhappy with the fact that the victim's dog entered her portion of their shared backyard, and that the victim failed to clean up after her dog. Shortly before the incident underlying this appeal, the defendant erected a small plastic fence to separate her backyard from that of the victim in an attempt to keep the victim's dog away. The fence ran across the backyard and between the two rear doors of the residence. The victim was unhappy about the fence. The victim's mother had asked the victim to look for another place to live and, by October, 2015, the victim was actively planning to move out of her residence. Late in the evening on October 10, 2015, the victim walked out of the front door of her residence. From one of the windows of the defendant's residence, the defendant made a negative comment to the victim, who was talking on her cell phone, but the victim declined to engage the defendant in conversation. At approximately 1:30 a.m., on October 11, 2015, the victim left her residence to walk her dog by means of her back door, which was adjacent to the back door leading into the defendant's residence. By this point in time, the victim had consumed multiple alcoholic beverages. The victim walked her dog in the vicinity of her nearby driveway. While the victim was reentering her residence with her dog, she noticed that a light had been turned on inside of the defendant's residence. The victim then stepped back outside, at which time the defendant, who was lurking near the victim's back door, grabbed the victim by the upper part of her body and pulled her over the small plastic fence that was separating their backyards, causing the victim to topple to the ground. A physical struggle between the defendant and the victim ensued, during which the defendant struck the victim repeatedly with a wooden billy club. The victim, while lying on the ground, tried to prevent the defendant from continuing to strike her. The victim grabbed the defendant's hand and pulled her by her hair, causing her to fall on top of her. The victim repeatedly told the defendant to "[l]et go" of the billy club, and the defendant told the victim that she was tired of her, that she hated her, and that she wanted her "out of here." Ultimately, the victim restrained the defendant, and the victim asked her what their father, who had died, would say to them if he saw them fighting. The defendant promised not to strike the victim again, at which time the victim released her grasp on the defendant's hair and the defendant stepped away from the victim. The defendant picked up the victim's cell phone, which had fallen out of the victim's hands during the altercation, and gave it back to her. The victim tossed aside one of the defendant's garbage pails before making her way back inside. The victim was bleeding from her nose and choking on blood. The victim sustained multiple bruises and lacerations on her face, back, left arm, left shoulder, left leg, and torso. The victim's right eye swelled and she experienced a great deal of pain, particularly pain that emanated from her jaw. The victim's clothing was stained with blood and dirt, and she was unable immediately to locate either her eyeglasses or a pendant that she had been wearing prior to the altercation. After the victim went back inside of her residence, she called the police. Soon thereafter, Naugatuck police Officer Robert Byrne arrived on the scene. He encountered the defendant and the victim arguing in front of the residence. After he separated the sisters, he met privately with the defendant. The defendant admitted that she had struck the victim with the wooden billy club, which was on her kitchen table, but stated that she had acted in self-defense. The defendant also stated that she had begun arguing with the victim after she caught the victim "snooping around in the backyard ." She stated that the small plastic fence that she had erected to prevent the victim's dog from entering her portion of the backyard was a cause of consternation between her and the victim. The defendant sustained injuries during the incident and claimed to have been "strangled" by the victim, but her injuries were not serious enough to warrant medical treatment. Byrne arrested the defendant on the assault charge, took her into custody, and transported her to police headquarters to complete the booking process. Naugatuck police Officer Shane Andrew Pucci arrived on the scene to provide Byrne with backup assistance. He spoke with the victim privately in her residence and accompanied her to a hospital after emergency medical services had arrived on the scene. At the hospital, medical personnel took X-ray images of the victim and treated her injuries. While at the hospital, the victim provided Byrne with an oral statement concerning the incident and her injuries. By 6 a.m. on October 11, 2015, the victim was discharged from the hospital and transported home. Pucci gave the victim a misdemeanor summons for disorderly conduct. Additional facts will be set forth as necessary in the context of the claims raised on appeal. I First, we address the defendant's claim that § 53a-60b (a) (1) is unconstitutionally vague as applied to her conduct. We disagree. In a substitute information dated February 17, 2017, the state charged the defendant with violating § 53a-60b (a) (1) "in the town of Naugatuck . on or about the 11th day of October, 2015, [in that the defendant] recklessly caused serious physical injury to a disabled person: to wit: [the victim] by means of a deadly weapon, by hitting her with a billy club." Section 53a-60b (a) provides in relevant part: "A person is guilty of assault of an elderly, blind, disabled or pregnant person or a person with intellectual disability in the second degree when such person commits assault in the second degree under section 53a-60 or larceny in the second degree under section 53a-123 (a) (3) and (1) the victim of such assault or larceny has attained at least sixty years of age, is blind or physically disabled, as defined in section 1-1f, or is pregnant ." As is reflected in the state's substitute information, the state's theory of the case was that the defendant engaged in conduct constituting assault in the second degree as defined by General Statutes § 53a-60 (a) (3) against the victim, who is physically disabled as defined by General Statutes § 1-1f (b). Section 53a-60 (a) provides: "A person is guilty of assault in the second degree when . (3) the actor recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument ." Section 1-1f (b) provides: "An individual is physically disabled if he has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device." Relying on the protections afforded to her by the fifth and fourteenth amendments to the federal constitution, the defendant argues that § 53a-60b (a) (1) is impermissibly vague because it expressly relies on the definition of "physically disabled" that is codified in § 1-1f (b). The defendant argues that § 1-1f sets forth a definition of "physically disabled" that is impermissibly broad and that is unclear to the average person. According to the defendant, because § 53a-60b (a) (1) fails to define the offense with sufficient definiteness, the statute was susceptible of being applied in an arbitrary and discriminatory manner against her in the present case. The defendant argues: "Specifically, it allowed [for] a conviction of assault in the second degree of a disabled person where the state introduced minimal evidence that the victim suffered from fibromyalgia, a poorly understood and oftentimes misdiagnosed syndrome.... Put another way, the statute was arbitrarily enforced because it is so unclear that ordinary people cannot understand what specifically constitutes 'physically disabled,' thereby allowing the state to rely on [the statute] inconsistently and on an ad hoc basis." The defendant clarifies that she does not claim that § 53a-60b (a) (1) is vague on its face, such that she lacked notice of the conduct prohibited by the statute. Rather, the defendant argues, § 53a-60b (a) (1) and § 1-1f are "unconstitutionally vague in application because the legislature, by incorporating § 1-1f into the criminal offense . impermissibly delegated basic policy matters to the courts for resolution of whether a diagnosis of fibromyalgia falls within the definition of 'physically disabled' for resolution on an ad hoc basis. In so doing, the enforcement of these statutes in the defendant's case [was] arbitrary." (Footnote omitted.) In arguing that the statute was applied arbitrarily to her, the defendant relies on the fact that she "did not assault a victim in a wheelchair, a victim with an amputation, nor a victim with a type of visible, clearly diagnosable illness, disease, or impairment." Instead, the defendant argues, "she got into a fight with her sister, who has been diagnosed with fibromyalgia . a poorly defined medical condition about which the medical community remains divided as to its existence." The defendant seeks review of this unpreserved claim under the bypass doctrine set forth in Golding , under which "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . exists and . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." (Emphasis in original; footnote omitted.) State v. Golding , 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015). The record is adequate to review the claim because the record reflects the conduct that formed the basis of the defendant's conviction under § 53a-60b (a) (1). See, e.g., State v. Indrisano , 228 Conn. 795, 800, 640 A.2d 986 (1994) (discussing requirements for reviewability). Additionally, we conclude that because a claim that a statute is vague as applied to a defendant implicates the constitutional guarantee of due process that is enshrined in the fourteenth amendment to the United States constitution; see, e.g., State v. Pettigrew , 124 Conn. App. 9, 24-25, 3 A.3d 148, cert. denied, 299 Conn. 916, 10 A.3d 1052 (2010) ; the claim is of constitutional magnitude. Having determined that the claim is reviewable under Golding , we turn to its merits. "The determination of whether a statutory provision is unconstitutionally vague is a question of law over which we exercise de novo review.... In undertaking such review, we are mindful that [a] statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity.... To demonstrate that [a statute] is unconstitutionally vague as applied to him, the [defendant] therefore must . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement.... [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . and the guarantee against standardless law enforcement.... If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties.... References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute's meaning to determine if it gives fair warning.... "The United States Supreme Court has set forth standards for evaluating vagueness. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.... [A] law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law.... "Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.... Therefore, a legislature [must] establish minimal guidelines to govern law enforcement.... "Tempering the foregoing considerations is the acknowledgment that many statutes proscribing criminal offenses necessarily cannot be drafted with the utmost precision and still effectively reach the targeted behaviors. Consistent with that acknowledgment, the United States Supreme Court has explained: The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited. Colten v. Kentucky , 407 U.S. 104, 110, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) . Simply put, [w]hile some ambiguous statutes are the result of poor draftsmanship, it is apparent that in many instances the uncertainty is merely attributable to a desire not to nullify the purpose of the legislation by the use of specific terms which would afford loopholes through which many could escape." (Citations omitted; internal quotation marks omitted.) State v. Winot , 294 Conn. 753, 758-61, 988 A.2d 188 (2010). "A statute . [that] forbids or requires conduct in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process.... Laws must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly.... Unless a vagueness claim implicates the first amendment right to free speech, [a] defendant whose conduct clearly comes within a statute's unmistakable core of prohibited conduct may not challenge the statute because it is vague as applied to some hypothetical situation . In contrast, [i]n a facial vagueness challenge, we . examine the challenged statute to see if it is impermissibly vague in all of its applications. A statute that is impermissibly vague in all its applications is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.... Such a provision simply has no core." (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Josephs , 328 Conn. 21, 31-32, 176 A.3d 542 (2018). "The proper test for determining [whether] a statute is vague as applied is whether a reasonable person would have anticipated that the statute would apply to his or her particular conduct.... The test is objectively applied to the actor's conduct and judged by a reasonable person's reading of the statute . "If the language of a statute fails to provide definite notice of prohibited conduct, fair warning can be provided by prior judicial opinions involving the statute . or by an examination of whether a person of ordinary intelligence would reasonably know what acts are permitted or prohibited by the use of his common sense and ordinary understanding." (Internal quotation marks omitted.) State v. Lavigne , 121 Conn. App. 190, 205-206, 995 A.2d 94 (2010), aff'd, 307 Conn. 592, 57 A.3d 332 (2012). As is reflected in the general recitation of facts, there was evidence to support a finding that, on October 11, 2015, the defendant grabbed the victim by the upper body, pulled her over the small plastic fence that separated her backyard from the victim's backyard, and struck her repeatedly with a wooden billy club until the victim restrained the defendant and stopped the attack. At trial, the victim testified about her extensive medical history. She testified that she had experienced back problems since 2000 and had undergone two surgical procedures on her back. She testified that she had undergone multiple "foot surgeries" in 1990, "five or six ear surgeries" in 2000, and "one breast surgery." Also, the victim testified that she had suffered from a nerve condition called fibromyalgia, for which she receives ongoing medical treatment. She testified that, at the time that the assault occurred, she was using a variety of medications that had been prescribed for her. Specifically, she was using a medication called Savella to treat her fibromyalgia, three times per day. She was using a medication called Vicodin to treat her pain, usually once per day. She explained: "Depending on the day, if . I know I'm not going to be doing much that day, I'll probably just take one [Vicodin ] in the morning or when I wake up." She also testified that she used Ambien, which helped her to sleep, as needed. The victim testified that she had experienced physical limitations for many years: "I can't sit too long. I can't stand too long. Walking a far distance is difficult for me. Stairs are very difficult for me to do if I'm carrying something. Just grocery shopping, doing laundry, it's a task for me to do those things." The victim testified that she had received treatment from her primary care physician as well as from Matthew Letko, whom she described as being an employee of "[the] arthritis center." The victim testified that she had received social security disability payments since 2004, and that in the ten years prior to her testimony in 2017, she had not had been engaged in any employment to supplement her disability income. The state presented testimony from Letko, who explained that he was a physician's assistant employed by the Arthritis Center of Connecticut, in Waterbury. Letko testified that the victim had been a patient of the center since February, 2008, and that he had been treating her since 2009 for "chronic pain issues, chronic low back pain and fibromyalgia syndrome." He testified that fibromyalgia is "a widespread pain syndrome primarily affecting muscles, upper back, mid-back, low back, hips, shoulders. It presents with a lot of tenderness, sensitivity to touch. There can also be other symptoms associated like fatigue, poor sleep." Letko testified that the treatment that he provided to the victim included prescribing "Savella, which is a medication specifically approved for fibromyalgia syndrome, muscle relaxants, anti-inflammatory medications; other treatments also include injections, physical therapy, [and] aquatic therapy." He testified that, in October, 2015, the victim was prescribed Savella, Ambien and Vicodin. Letko testified that he evaluated the victim on a monthly basis. He stated that the physical limitations related to her chronic back pain and fibromyalgia included difficulty in prolonged sitting, hearing, bending, lifting, and using stairs. Letko testified that although her pain symptoms may fluctuate from day to day, her condition was not going to improve. He testified that the goal of his treatment plan for the victim "would be to manage the pain effectively enough where she can have a quality of life where she can function around the home, in the community . take care of herself, get out of bed every morning, perform basic tasks around the house." The defendant argues that to the extent that § 53a-60b (a) (1) relies on § 1-1f (b) to define "physically disabled," it lacks sufficient definiteness in that it fails to apprise ordinary persons of the meaning of "physically disabled" and, thus, it does not provide sufficient guidance with respect to whether the victim was physically disabled. Although we do not have the benefit of a prior judicial interpretation of "physically disabled," its meaning is ascertainable by affording the language of § 1-1f (b) its plain meaning. "The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case . In seeking to determine that meaning . [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... Issues of statutory construction raise questions of law, over which we exercise plenary review." (Citation omitted; internal quotation marks omitted.) State v. Griffin , 184 Conn. App. 595, 617-18, 195 A.3d 723, cert. denied, 330 Conn. 941, 195 A.3d 692, 693 (2018). As we have set forth previously, § 1-1f provides: "An individual is physically disabled if he has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device." It is well settled that courts may rely on dictionaries when ascertaining the commonly approved usage of words and phrases found in statutes. See, e.g., Princess Q.H. v. Robert H. , 150 Conn. App. 105, 115, 89 A.3d 896 (2014). "Chronic" is defined in relevant part as "marked by long duration or frequent recurrence: not acute ." Merriam-Webster's Collegiate Dictionary (11th Ed. 2012) p. 221. "Physical" is defined in relevant part as "of or relating to the body ." Id., p. 935. "Handicap" is defined in relevant part as "a disadvantage that makes achievement unusually difficult ." Id., p. 565. "Infirm" is defined in relevant part as "of poor or deteriorated vitality . feeble from age . not solid or stable ." Id., p. 640. "Impair" is defined as "to damage or make worse by or as if by diminishing in some material respect ." Id., p. 622. Contrary to the ambiguity suggested by the defendant, the term "physical disability," as used in § 1-1f (b), has a readily ascertainable meaning. It refers to any recurring bodily condition that detrimentally affects one's ability to carry out life's activities, regardless of whether it is congenital, the result of bodily injury, organic processes, or the result of illness. The language used in the statute, particularly the phrase, "not limited to," reflects that the legislature did not intend to set forth an exhaustive list of each and every bodily condition that could result in a physical disability, and the fact that the legislature did not do so does not necessitate a conclusion that the statute lacks sufficient guidance with respect to its meaning. See, e.g., State v. Winot , supra, 294 Conn. at 760-61, 988 A.2d 188 (lack of specificity not necessarily result of imprecise drafting but desire not to create loopholes in statute). Here, the language at issue is general enough to encompass a wide variety of physical conditions, yet specific enough to provide sufficient notice as to its meaning and, specifically, as to the types of bodily conditions encompassed by the term "physical disability." We conclude that the defendant's violent conduct in the present case clearly came within the unmistakable core of conduct prohibited by § 53a-60b (a) (1). The record reflects that the victim was physically disabled for purposes of § 53a-60b (a) (1) because she suffered from a chronic bodily condition that significantly hampered her ability to carry out many of the everyday activities of life. The record reflects that the victim's physical condition, which caused her pain, disadvantaged her, and that, for years prior to the events at issue, the victim had received medical treatment to treat that condition, which included prescriptions to alleviate her pain and to help her sleep. A plain reading of § 53a-60b (a) (1) and the facts in evidence strongly persuade us to conclude that a reasonable person of ordinary intelligence would have anticipated that the statute would apply to the defendant's violent conduct toward the specific victim in the present case. In light of the foregoing, we disagree with the defendant that the statute lacked minimal guidelines or sufficient standards to guide law enforcement with respect to its proper application. Accordingly, we conclude that the defendant's claim fails under Golding 's third prong because she has failed to demonstrate that a constitutional violation occurred that deprived her of a fair trial. II Next, the defendant claims that the evidence did not support a finding that the victim was physically disabled for purposes of § 53a-60b (a) (1). This claim consists of two closely related subclaims that we will analyze separately. First, the defendant claims that the evidence was insufficient to demonstrate that the victim "had a diagnosis of fibromyalgia." Second, the defendant claims that, if the evidence supported a finding that the victim had been diagnosed with fibromyalgia, "[a] diagnosis of fibromyalgia does not satisfy the physical disability requirement of § 53a-60b (a) (1)." We disagree. We begin by setting forth the familiar standard of review for claims of evidentiary insufficiency in a criminal appeal. "The standard of review we apply to a claim of insufficient evidence is well established. 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... "We note that the [finder of fact] 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 [finder of fact] to conclude that a basic fact or an inferred fact is true, the [finder of fact] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.... "In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... "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 [finder of fact's] verdict of guilty." (Internal quotation marks omitted.) State v. Calabrese , 279 Conn. 393, 402-403, 902 A.2d 1044 (2006). We also clarify the essential elements of the offense that are the subject of the defendant's claim. To obtain a conviction under § 53a-60b (a) (1), the state bore the burden of proving beyond a reasonable doubt that (1) the defendant committed assault in the second degree pursuant to § 53a-60 and (2) the victim of the assault was physically disabled pursuant to § 1-1f (b). The defendant does not challenge the sufficiency of the evidence with respect to the first element. The defendant challenges only the second essential element of the offense, which requires proof beyond a reasonable doubt that the victim of the assault "has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device." General Statutes § 1-1f (b). To the extent that the defendant's claim requires us to interpret § 1-1f (b), we rely on the interpretation of the statute set forth in part I of this opinion. A The defendant claims that the evidence was insufficient to sustain the conviction because the state failed to prove beyond a reasonable doubt that the victim "had a diagnosis of fibromyalgia." The defendant argues in relevant part: "Because fibromyalgia is a poorly defined illness with no clear understanding of its pathology within the medical community, the state cannot, as a matter of law, prove beyond a reasonable doubt that someone has fibromyalgia." The defendant also argues: "The dearth of evidence produced by the state as to how exactly Letko and his supervising physician came to a diagnosis and the severity of [the victim's] specific case of fibromyalgia supports a conclusion that the evidence was insufficient for the jury reasonably to conclude beyond a reasonable doubt that [the victim] suffered from a disabling case of fibromyalgia.... "Letko's testimony focused on fibromyalgia, in general, and how he treated [the victim] based on a diagnosis of fibromyalgia. The state did not introduce any evidence as to Letko's methodology for arriving at [the victim's] diagnosis, or testing specific to [the victim] that he conducted to rule out other potential causes of her symptoms.... Nor did the state introduce any of [the victim's] medical records to support a diagnosis. Because no exclusive test exists to demonstrate that a patient suffers from fibromyalgia . it is important for the evidence to support a conclusion that the diagnosis is correct." (Citations omitted.) In part I of this opinion, we discussed the evidence presented by the state with respect to the victim's physical disability. We reiterate that this evidence was in the form of testimony from the victim and Letko, the physician's assistant who treated her for many years. Letko testified in relevant part that he had treated the victim for "[v]arious chronic pain issues, chronic low back pain, and fibromyalgia syndrome." He discussed the various forms of therapy that he used on the victim, including "a medication specifically approved for fibromyalgia syndrome, muscle relaxants, anti-inflammatory medications . injections, physical therapy, [and] aquatic therapy." Letko testified that the victim was prescribed medication to treat fibromyalgia, medication to help her sleep, and medicine to alleviate pain. Although the victim and Letko testified that the victim suffered from fibromyalgia, neither the victim nor Letko attributed her chronic physical condition solely to fibromyalgia. To the contrary, Letko testified that the victim's "chronic back pain and fibromyalgia syndrome" caused the victim to experience pain and to have limitations with respect to activities including sitting, hearing, bending, lifting and going up and down stairs. Letko testified that his goal in treating the victim is to manage her pain so that she can "get out of bed every morning [and] perform basic tasks around the house." The defendant couches her claim in terms of whether the victim "had a diagnosis of fibromyalgia" at the time of the assault. Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the testimony of both the victim and Letko demonstrated that the victim had such a diagnosis. The substance of the defendant's arguments, however, reflects the defendant's apparent belief that the state bore the burden of proving beyond a reasonable doubt that the diagnosis was medically accurate and that the victim's alleged physical disability for purposes of § 1-1f (b) was the result of fibromyalgia. As our discussion of the elements of the offense reflects, the state did not bear the burden of demonstrating beyond a reasonable doubt that the victim had been diagnosed with fibromyalgia, that she suffered from fibromyalgia, or that her physical disability was the result of fibromyalgia. Moreover, as we have noted in this opinion, in proving that the victim suffered from a chronic physical disability, one that caused the victim pain and difficulty performing life's everyday tasks, the state did not rely solely on evidence that the victim suffered from fibromyalgia. There was evidence of the victim's lengthy medical history and testimony from Letko that the victim's physical disability was attributable to "various chronic pain issues, chronic low back pain, and fibromyalgia syndrome." In any event, there is no support for the proposition that the state bore the burden of proving beyond a reasonable doubt the victim's physical disability was caused by any particular illness or injury. "We are not in the business of writing statutes; that is the province of the legislature. Our role is to interpret statutes as they are written.... [We] cannot, by [judicial] construction, read into statutes provisions [that] are not clearly stated." (Internal quotation marks omitted.) Thomas v. Dept. of Developmental Services , 297 Conn. 391, 412, 999 A.2d 682 (2010). Section 1-1f (b) provides in relevant part that a person is physically disabled if he or she has a chronic physical handicap, infirmity or impairment "whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device." On the basis of the foregoing, we conclude that the defendant's claim is not persuasive. The state did not have to prove beyond a reasonable doubt that the victim had received an accurate diagnosis for any particular illness or disease, but that she suffered from a chronic physical disability that resulted from causes including "bodily injury, organic processes or changes or from illness ." General Statutes § 1-1f (b). Here, the testimony of the victim and Letko amply supported a finding beyond a reasonable doubt that the victim was physically disabled at the time the defendant assaulted her. B The defendant claims that, even if the evidence supported a finding that the victim had been diagnosed with fibromyalgia, "[a] diagnosis of fibromyalgia does not satisfy the physical disability requirement of § 53a-60b (a) (1)." The defendant argues that § 1-1f is ambiguous with respect to whether fibromyalgia constitutes a physical disability. On the one hand, the defendant argues that fibromyalgia, as defined by Letko, appears to be a chronic physical infirmity that is encompassed by the statute. On the other hand, the defendant argues that fibromyalgia does not appear to constitute a physical disability because a diagnosis of fibromyalgia cannot "be established through conclusive tests." Relying on materials that were not presented in evidence, the defendant asserts: "Fibromyalgia manifests itself in numerous ways. In addition, the level of severity of symptoms varies widely from patient to patient, and even from day to day for the same patient. Put simply, fibromyalgia is not as uniform in its symptoms, severity, and presentation as some other disabilities that can be more easily quantified. By way of illustration, there are tests to determine the severity of hearing loss and levels of permanent impairment for orthopedic injuries. There is no indication, however, that many patients diagnosed with fibromyalgia have any presentation of a disability that can be qualified in the same way, let alone affect their level of vulnerability and require additional protections in the same way other physical disabilities do." The defendant's claim is not persuasive for several reasons. The defendant's arguments are limited to fibromyalgia and whether a diagnosis of fibromyalgia, in and of itself, constitutes a physical disability for purposes of § 1-1f. As we observed previously in this opinion, the evidence that the state presented concerning the victim's physical disability was not limited to a diagnosis of fibromyalgia. Both the victim and Letko testified that the victim had a complex medical history and, as Letko observed, over the course of several years, he had prescribed medications and provided a variety of treatments to the victim to treat "[v]arious chronic pain issues, chronic low back pain, and fibromyalgia syndrome." Additionally, we observe that the defendant urges us to interpret § 1-1f (b) in such a manner that it requires proof of a disability that "[can] be established through conclusive [medical] tests." Stated otherwise, the defendant argues that a physical disability must be more "uniform in its symptoms, severity, and presentation" or at least "more easily quantified" than fibromyalgia. These arguments are readily undermined by the language used in § 1-1f. Simply put, adopting the defendant's interpretation of the statute would graft upon the statute limitations that are not evident in the statute as it is written. The statute, as written, focuses not on the cause of a physical disability, but on whether a person is disabled, and it does not require that a physical disability be obvious or readily verifiable in the manner suggested by the defendant. We reject the defendant's invitation to exclude from the definition of "physical disability" a chronic and painful physical condition that significantly hinders a person's ability to carry out several of the everyday activities of life. To do so would thwart the broad protective purpose reflected in the plain language of § 1-1f (b). For the foregoing reasons, the defendant has failed to demonstrate that the evidence was insufficient to prove that the victim suffered from a physical disability for purposes of § 53a-60b (a) (1). III Last, the defendant claims that prosecutorial impropriety during closing argument deprived her of a fair trial. We disagree. The relevant facts are as follows. There was evidence that, for many years, the defendant and the victim had a rocky relationship and that, in the days leading up to October 11, 2015, the issue of the victim's dog and the fence erected by the defendant was a cause of disagreement between them. The victim testified that, in the early morning of October 11, 2015, the defendant caught her by surprise and physically assaulted her after she had stepped out of the back door of her residence. The victim testified that the defendant grabbed her by the upper body, pulled her over the small plastic fence that separated their backyards, and struck her with a wooden billy club while she lay helplessly on the ground. The defendant repeatedly told the victim that she hated her and wanted her to leave. The victim testified that, ultimately, she restrained the defendant and let her go after she had promised to stop striking her. At trial, the defendant testified in relevant part that she was home alone on October 11, 2015. She became startled when her doorbell rang at approximately 1:30 a.m. She armed herself with a wooden billy club for protection and, in an attempt to see who rang her doorbell, she went outside behind her residence. She did not see anything noteworthy and turned to go back inside. At that moment, the victim's back door "goes flying open," and the victim, who smelled of alcohol, angrily motioned to the defendant and stated, "[c[ome on bitch ." The defendant testified that, acting "in a rage," the victim grabbed her by the hair, pulled her to the ground, and wrapped her body so tightly around the defendant's body that she had difficulty breathing. The victim told the defendant, "[d]ie, bitch." The defendant testified that she and the victim "wrestl[ed] around" before the defendant gained control of her billy club and began to swing it "all over the place." The defendant testified that she certainly was not the aggressor, and she could not recall striking the victim. She testified that, after the altercation ended, she went inside and called the police. During its case-in-chief, and in the absence of an objection by defense counsel, the state introduced into evidence an audio recording of the 911 call that the defendant had made at 1:58 a.m. on October 11, 2015. During the call, the defendant briefly explained what had occurred with her sister, the victim, in relevant part, as follows: "I went outside to see who was out there because somebody was ringing the fucking doorbell and it was her standing there. She came at me, and I fucking let-and a fight broke out." During the prosecutor's rebuttal closing argument, she stated in relevant part: "What . the judge is going to instruct you also [is] that you can draw reasonable inferences from the evidence. And I'll give you an example of that. So, you can go further with what you have to come to a conclusion of things that we don't know. And it's the state's position that the reasonable inferences that you can draw from the evidence in this case is that . the defendant was upset with [the victim] . [the defendant] heard [the victim] walk her dog out the back; [the defendant] turned out the outside light and went outside with a billy club in her hand; they had words; and, she, as she said or almost said in the 911 call, she let [the victim ] have it ; she struck [the victim] with the billy club across the nose and eye; [the victim] fell to the ground." (Emphasis added.) The defendant did not object to the prosecutor's argument. For the first time on appeal, the defendant, relying on the emphasized portion of the prosecutor's rebuttal closing argument set forth in the preceding paragraph, claims that "the prosecutor made improper argument by describing facts not in evidence when she erroneously speculated to the jury how the defendant would have ended a statement that she did not finish during the [911] call." The defendant argues that the prosecutor's argument constituted an improper reference to "facts not in evidence" and that it amounted to "pure speculation" as to how the defendant may have completed the statement that she made during the 911 call. "[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial ." (Internal quotation marks omitted.) State v. Luster , 279 Conn. 414, 428, 902 A.2d 636 (2006). In evaluating whether prosecutorial impropriety, if proven, amounted to a denial of due process, we consider the factors enumerated by our Supreme Court in State v. Williams , 204 Conn. 523, 540, 529 A.2d 653 (1987). "[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments.... In determining whether such [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.... Moreover, [i]t does not follow . that every use of rhetorical language or device [by the prosecutor] is improper.... The occasional use of rhetorical devices is simply fair argument.... 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.... This heightened duty derives from our long recognition of the special role played by the state's attorney in a criminal trial. He 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. In discharging his most important duties, he deserves and receives in peculiar degree the support of the court and the respect of the citizens of the county. By reason of his office, he usually exercises great influence upon 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 no conviction through the aid of passion, prejudice, or resentment. If the accused be 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. While 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 upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury ha[s] no right to consider.... "Or to put it another way while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.... A prosecutor must draw a careful line. On the one hand, he should be fair; he should not seek to arouse passion or engender prejudice. On the other hand, earnestness or even a stirring eloquence cannot convict him of hitting foul blows." (Citations omitted; internal quotation marks omitted.) State v. Rizzo , 266 Conn. 171, 246-47, 833 A.2d 363 (2003). It is beyond question that "a prosecutor may not comment on evidence that is not a part of the record and may not comment unfairly on the evidence in the record." State v. Fauci , 282 Conn. 23, 49, 917 A.2d 978 (2007). Turning to the argument at issue in the present claim, in which the prosecutor referred to what the defendant "said or almost said in the 911 call," we observe initially that the prosecutor's challenged argument cannot reasonably be interpreted as a suggestion by her that she had additional facts concerning the 911 call beyond those that were properly before the jury. The prosecutor's isolated remark was obviously based on the content of the 911 recording, and the entire 911 recording was a full exhibit at trial which was played in the jury's presence. Thus, we are not persuaded that the remark was not based on the evidence and conclude that it was unlikely that the jury would have interpreted the prosecutor's remark as being based on evidence that was known to her, but was not before the jury. See, e.g., State v. Fernandez , 169 Conn. App. 855, 869, 153 A.3d 53 (2016) ("when a prosecutor suggests a fact not in evidence, there is a risk that the jury may conclude that he or she has independent knowledge of facts that could not be presented to the jury" [internal quotation marks omitted] ). Second, we observe that the context of the prosecutor's challenged argument unmistakably suggested that she was asking the jury to draw inferences from the evidence presented at trial, specifically, the 911 recording. The argument directly followed the prosecutor's statement that the jury was permitted to draw reasonable inferences from the evidence, and the argument was made during what was, in the prosecutor's words, a summation of "the reasonable inferences that you can draw from the evidence in this case ." (Emphasis added.) "A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to evidence." (Internal quotation marks omitted.) State v. Fernandez , supra, 169 Conn. App. at 869, 153 A.3d 53. If the prosecutor had incorrectly referred to what the defendant "said" during the 911 call, such an argument would constitute an improper comment on the evidence. Here, however, the prosecutor referred to what the defendant "said or almost said" during the 911 call. The phrasing of the argument suggests that, during the heat of closing argument, the prosecutor recognized that she was not going to merely describe the 911 call, but draw an inference from it. Thus, the phrase suggests that she immediately corrected her reference to what the defendant had "said." "When reviewing the propriety of a prosecutor's statements, we do not scrutinize each individual comment in a vacuum but, rather, review the comments complained of in the context of the entire trial.... [And], when a prosecutor's potentially improper remarks are ambiguous, a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through a lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations." (Citation omitted; internal quotation marks omitted.) State v. Felix R. , 319 Conn. 1, 9, 124 A.3d 871 (2015). In light of the fact that the challenged argument was made in the context of the prosecutor's broader argument concerning the reasonable inferences that could be drawn from the evidence, we are not persuaded that the jury would have interpreted the isolated remark about what the defendant "said" to be anything other than the prosecutor's suggested interpretation of the 911 recording. Moreover, the prosecutor's argument that the 911 recording reasonably could be interpreted to suggest that the defendant "almost said" during the 911 call that she "let [the victim] have it" is a fair commentary on the 911 recording. It was not in dispute that the 911 call was made in the minutes following the altercation between the defendant and the victim. Although they differed with respect to the manner in which the altercation began, both the defendant and the victim testified that it was a startling and violent physical struggle. In the 911 call, the defendant did, in fact, state that, after she went outside, she found the victim standing there, and that "[the victim] came at me, and I fucking let-and a fight broke out." The inference drawn by the prosecutor concerning the way that the defendant "almost" described the altercation during the 911 call was not the product of sheer speculation. The defendant's statement to the 911 dispatcher concerning the manner in which the altercation began reasonably could be interpreted to reflect that the defendant began to explain what she had done to the victim, but that she changed her explanation mid-sentence to provide a less incriminatory explanation by stating "a fight broke out. " Moreover, the prosecutor's argument with respect to what the defendant "almost said" during the 911 call was consistent with the defendant's theory of defense and the defendant's trial testimony. The defendant relied on the theory of self-defense, and the defendant's testimony was that she had frantically brandished the billy club during the altercation to defend herself from the victim, who had been the initial aggressor and had held on to her so tightly that she experienced difficulty breathing. The victim testified that the defendant had repeatedly struck her with the billy club, and the evidence of her multiple physical injuries supported a finding that the defendant, in fact, had inflicted physical injuries. In describing the course of events, the inference that the prosecutor asked the jury to draw accurately reflected the defendant's own testimony, in line with her theory of the case, that after the victim came at her, she started "swinging [the billy club] anywhere" to defend herself. And, we observe, even if the requested inference was drawn by the jury, it would not necessarily have proven that the defendant had initiated the fight. Thus, the prosecutor's characterization of the 911 recording was a fair commentary on the evidence. In light of our conclusion that the defendant has not demonstrated that prosecutorial impropriety occurred, she is unable to demonstrate that the challenged argument deprived her of a fair trial. The judgment is affirmed. In this opinion the other judges concurred. In addition to charging the defendant with assault of a disabled person in the second degree in violation of § 53a-60b (a) (1), the state charged the defendant with assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and reckless endangerment in the second degree in violation of General Statutes § 53a-64. The jury found the defendant guilty of both assault of a disabled person in the second degree and reckless endangerment in the second degree. The jury found the defendant not guilty of assault in the third degree. At the time of sentencing, and at the state's request, the court vacated the jury's verdict of guilty of reckless endangerment in the second degree in accordance with the rationale set forth in State v. Polanco , 308 Conn. 242, 260, 61 A.3d 1084 (2013) ("when a defendant is convicted of greater and lesser included offenses, the trial court shall vacate the conviction for the lesser offense rather than merging it with the conviction for the greater offense"). The court sentenced the defendant to serve a term of incarceration of five years, execution suspended after she completed a two year mandatory minimum sentence, followed by a term of probation of three years. In accordance with our policy of protecting the privacy interests of the victims of family violence, we decline to identify the victim or others through whom the victim's identity may be ascertained. See General Statutes § 54-86e. Unlike the defendant, we address her vagueness claim before addressing her sufficiency of the evidence claim because "the gist of a vagueness claim . is that due process is violated whenever sufficient evidence of guilt is too readily found by a jury that is left to its own discretion without the guidance of definite enforcement standards." State v. Schriver , 207 Conn. 456, 458-59 n.3, 542 A.2d 686 (1988). The court recognized Letko, who testified that he had received training and licensure as a physician's assistant and had practiced under the supervision of a medical doctor, to be "an expert in the area of a physician's assistant." The defendant attempts to discount the weight of the evidence of disability presented by the state at trial by stating in her principal appellate brief that fibromyalgia is "an illness that even the medical community does not agree exists and believes is both misdiagnosed and overdiagnosed in staggering numbers." Moreover, in an attempt to demonstrate that the statute was unconstitutionally vague as applied to her conduct, the defendant argues that, if the statute is interpreted to encompass a condition such as fibromyalgia, it arguably could apply to an assault committed against the broad class of persons who wear prescription eyeglasses. The defendant's arguments are not persuasive. First, the evidence does not suggest that the victim's physical disability is solely a consequence of fibromyalgia. The evidence suggests that the victim's physical disability may have resulted from one or more of the physical conditions that she and Letko discussed in their testimony and, in particular, her disability is her chronic pain and her resulting difficulty in carrying out everyday activities. Second, to the extent that the defendant invites us to evaluate whether the statute is vague as applied to persons other than the victim and conditions distinct from those experienced by the victim, which may result in physical disability, we observe that in an evaluation of whether a statute is unconstitutionally vague as applied to a defendant's conduct, we do not focus on whether it is vague as applied to a hypothetical situation , but whether it is vague as objectively applied to the defendant's conduct. See State v. Josephs , supra, 328 Conn. at 31-32, 176 A.3d 542 ; State v. Lavigne , supra, 121 Conn. App. at 205-206, 995 A.2d 94. Although the statute does not require that a defendant be aware of a victim's physical disability, the defendant testified in relevant part that she was aware that the victim was physically disabled and had discussed the victim's medical conditions with her. The defendant also testified, however, that the victim lied about and exaggerated her medical conditions. The record reflects that the defendant did not preserve this sufficiency claim for appellate review. The claim is nonetheless reviewable on appeal. See State v. Lewis , 303 Conn. 760, 767 n.4, 36 A.3d 670 (2012). Defense counsel cross-examined Letko with respect to the method by which a diagnosis of fibromyalgia is made generally. He testified "there's not one specific test that you can do that clarifies the diagnosis of [fibromyalgia ]. There's not a simple blood test or X-ray or [magnetic resonance imaging scan ]. It's certain criteria you need to meet. So, earlier, I had mentioned widespread pain; so, there's multiple tender points when you're examining the patient over the body, you know. And, also, you do other tests, so you may want to rule out . other medical conditions through X-rays and, basically, like, ruling out those other things and meeting the criteria of those tender points . with the associated symptoms of poor sleep, depression, headaches, fatigue that generally meets the criteria . to make the diagnosis for fibromyalgia syndrome." Letko agreed with defense counsel that "all those tests" ruled out other causes for the victim's pain. In relevant part, Letko also testified that a diagnosis of fibromyalgia is largely based on patient complaints and agreed with defense counsel that patients "hypothetically" could fake their complaints. Letko also testified that it was not uncommon for patients to complain of back pain. Pursuant to State v. Stevenson , 269 Conn. 563, 572-76, 849 A.2d 626 (2004), the defendant's unpreserved prosecutorial impropriety claim is reviewable on appeal and it is unnecessary for this court to engage in an analysis of the claim under State v. Golding , supra, 213 Conn. at 239-40, 567 A.2d 823.

12489242

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION v. Gerda E. BARTLEY et al.

JPMorgan Chase Bank, Nat'l Ass'n v. Bartley

2017-02-28

No. 38373

831

831

155 A.3d 831

155

West's Atlantic Reporter, Third Series

Connecticut Appellate Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION v. Gerda E. BARTLEY et al.

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION v. Gerda E. BARTLEY et al. No. 38373 Appellate Court of Connecticut. Argued February 7, 2017 Officially released February 28, 2017

45

276

Per Curiam. The judgment is affirmed and the case is remanded for the purpose of setting new law days.

12489219

SOUTHWEST APPRAISAL GROUP, LLC v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT

Sw. Appraisal Grp., LLC v. Adm'r, Unemployment Comp. Act

2017-03-21

SC 19651

738

752

155 A.3d 738

155

West's Atlantic Reporter, Third Series

Connecticut Supreme Court

Connecticut

2021-08-27T20:57:14.012355+00:00

Fastcase

SOUTHWEST APPRAISAL GROUP, LLC v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT

SOUTHWEST APPRAISAL GROUP, LLC v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT SC 19651 Supreme Court of Connecticut. Argued December 15, 2016 Officially released March 21, 2017 Michael J. Spagnola, for the appellant (plaintiff). Richard T. Sponzo, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (defendant). Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

7777

50328

ROBINSON, J. The sole issue in this appeal is whether part C of the ABC test; see General Statutes § 31-222 a) (1) (B) (ii) ; which governs whether an employment relationship exists for purposes of the Unemployment Compensation Act (act), General Statutes § 31-222 et seq., requires proof that the putative employee perform services for third parties other than the putative employer, in order to be deemed an independent contractor. The plaintiff, Southwest Appraisal Group, LLC, appeals from the judgment of the trial court dismissing its appeal from the decision of the Board of Review of the Employment Security Appeals Division (board), which found it liable for unemployment compensation taxes, plus interest, for three of its automobile appraisers following an audit by the defendant, the Administrator of the Unemployment Compensation Act. On appeal, the plaintiff claims that the trial court improperly applied part C of the ABC test, which asks whether "such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed"; General Statutes § 31-222 (a) (1) (B) (ii) (III) ; in deeming the three appraisers to be employees on the ground that the plaintiff had failed to prove that they had performed appraisal services for anyone other than the plaintiff, despite other evidence indicating that they operated independent businesses. We conclude that evidence of the performance of services for third parties is not required to prove part C of the ABC test but, rather, is a single factor that may be considered under the totality of the circumstances analysis governing that inquiry. Accordingly, we reverse the judgment of the trial court. The record reveals the following facts and procedural history. The plaintiff is a proprietor-owned automotive damage appraisal business that assesses damaged vehicles, including estimating repair costs and evaluating total losses and salvages. Various insurance companies contract with the plaintiff to inspect insured vehicles for which damage claims have been filed. The plaintiff then subcontracts with various independent appraisers, who perform the damage appraisals on a flat fee basis. Although the appraisers were required to pass a state licensing test, the plaintiff did not pay for any of the appraisers' licensing or testing fees. The plaintiff reported compensation to the appraisers on Internal Revenue Service Form 1099, did not withhold any taxes, and did not provide the appraisers with fringe benefits such as health insurance, vacation time, travel reimbursement, or a retirement plan. The plaintiff generally left the appraisers to their own devices in accomplishing their tasks. The plaintiff did not supply any of them with vehicles or professional liability insurance. It also did not provide the appraisers with any training or uniforms. The appraisers had their own home offices and provided their own equipment, such as cameras, telephones, and computers; the plaintiff provided them only a standardized cost estimating software program that its insurance clients required. The appraisers also had printed their own business cards, which noted their contact information, licenses, and independent status. Several of the appraisers had registered business names. All of the appraisers individually bore the risk of making a profit or a loss. In 2011, the defendant conducted an audit of the plaintiff for tax years 2009 and 2010. Following the audit, the defendant determined that six of the appraisers-Sam Draco, Michael Gerber, Scott Kehoe, Russell Mansfield, Andrew Patrick, and Philip Zembruski-were misclassified as independent contractors rather than as the plaintiff's employees. The defendant further determined that, because of the misclassification, the plaintiff owed $2486.73 in unemployment contribution taxes, plus interest, for calendar years 2009 and 2010. After an evidentiary hearing pursuant to General Statutes § 31-242, an appeals referee (referee) upheld the defendant's decision to assess unemployment taxes, and dismissed the plaintiff's appeal. The plaintiff appealed from the decision of the referee to the board pursuant to General Statutes § 31-249. In its de novo review of the referee's decision, the board deemed parts A and B of the ABC test satisfied with respect to all six appraisers, concluding that: (1) "the weight of the evidence supports a finding that the appraisers were not subject to the [plaintiff's] direction and control in the performance of their work"; and (2) the plaintiff had proven that the appraisers' work, performed at the homes and offices of the customers of its insurance company clients, was done outside the plaintiff's place of business. The board then turned to part C, which requires proof that "such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed ." General Statutes § 31-222 (a) (1) (B) (ii) (III). On the basis of these facts, the board concluded that the plaintiff had proven part C with respect to Gerber, Mansfield, and Zembruski because they each held themselves out as having an "independently established auto damage appraisal business," whose stability and lasting nature was demonstrated by the receipt of significant compensation from entities other than the plaintiff. The board, however, determined that the plaintiff had not proven part C with respect to Draco, Kehoe, and Patrick. The board acknowledged that Draco, Kehoe, and Patrick had indicia of independent business such as home offices, independent state licensure, and business cards, and that Draco, in particular, had held himself out to the public as an independent appraiser and looked for additional work from numerous insurance companies and auto body shops by making his availability known by word of mouth. Citing its decision in Martelle Builders, Inc. v. Administrator, Unemployment Compensation Act, Dept. of Labor, Employment Security Appeals Division, Board of Review Case No. 9010-BR-11 (May 15, 2012), however, the board noted that "[a]lthough Draco made his services available to entities other than the [plaintiff], he testified that he did not in fact perform work for others. Part C of the ABC test requires the [plaintiff] to demonstrate that the individuals are actually engaged in an independently established business. The fact that Draco maintained contractual freedom to engage in appraisal services for other entities does not satisfy [p]art C of the ABC test." The board reached the same conclusion with respect to Kehoe and Patrick, observing that they had not participated in the hearing before the referee, and that James Murphy, the plaintiff's proprietor, "could not demonstrate that either Kehoe or Patrick performed similar services for others." Indeed, the board emphasized that, unlike with Draco, there was no evidence that Kehoe or Patrick had offered their services to others or otherwise held themselves out as independent appraisers, despite the fact that both had registered independent business names. Accordingly, the board rendered a decision sustaining the plaintiff's appeal and reversing the referee's decision in part with respect to Gerber, Mansfield, and Zembruski, but upholding the referee's finding of liability for unemployment contributions with respect to Draco, Kehoe, and Patrick. The plaintiff subsequently appealed from the decision of the board to the trial court in accordance with General Statutes § 31-249b and Practice Book § 22-1 et seq. Following oral argument, the trial court issued a memorandum of decision agreeing with the board's conclusion that the plaintiff had failed to satisfy part C with respect to Draco, Kehoe, or Patrick. The trial court rejected the plaintiff's claim that the board had improperly determined that proof of part C of the ABC test requires "individuals [to] engage in work for multiple entities simultaneously in order to qualify as independent contractors," and that the board's precedent "merely allows [such work] to be one of many factors for consideration." The trial court concluded that requiring proof that the putative employees actually performed services for other entities is consistent with the economic dependency concerns contemplated by part C, such as whether the end of the relationship with the putative employer will result in the unemployment of the putative employees. Acknowledging that Draco, Kehoe, and Patrick, like the other three appraisers, "maintained their own offices and equipment, were responsible for maintaining their licenses, and had their own business cards," and that Draco had "advertised by word of mouth," the trial court nevertheless held that the board reasonably gave "considerable weight" to the lack of evidence that they "had provided their services to third parties either during the [audit] period or beyond." The court stated, "[s]imply put, there is no indication on this record that any of these three businesses would survive without their relationship with the plaintiff." Accordingly, the trial court rendered judgment dismissing the plaintiff's appeal. This appeal followed. See footnote 2 of this opinion. On appeal, the plaintiff claims that the trial court improperly upheld the board's construction of § 31-222 (a) (1) (B) (ii), namely, that part C of the ABC test "requires putative independent contractors not only to be customarily engaged in an independently established trade, occupation, profession or business of the same nature as that of service performed, but to be customarily engaged in an independently established and successful trade, occupation, profession or business." (Emphasis in original.) Describing this treatment of part C as "radical and wholly unsupported," the plaintiff contends that no deference to the board's decision is required because it is inconsistent with the board's use of a totality of the circumstances approach to part C in prior cases. See, e.g., Martelle Builders, Inc. v. Administrator, Unemployment Compensation Act , supra, Dept. of Labor, Board of Review Case No. 9010-BR-11; Mintz v. Administrator, Unemployment Compensation Act , Dept. of Labor, Employment Security Appeals Division, Board of Review Case No. 836-BR-91 (May 8, 1991). The plaintiff emphasizes that this interpretation of part C will have "practical implications . damning to Connecticut industry," especially in difficult economic times, by tying the legitimacy of an independent contractor relationship to the putative contractor's business success. Arguing that the trial court improperly relied on our decision in JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act , 265 Conn. 413, 420, 828 A.2d 609 (2003), the plaintiff also cites sister state cases such as Industrial Claim Appeals Office v. Softrock Geological Services, Inc. , 325 P.3d 560 (Colo. 2014), and In the Matter of the Appeal of Hendrickson's Health Care Service , 462 N.W.2d 655 (S.D. 1990), and contends that the "focus [instead] should be on the steps taken and efforts made by the putative independent contractor to perform work for others and secure compensation for those services." The plaintiff then argues that, when a proper totality of the circumstances analysis is applied to the facts in the record, it demonstrates that Draco, Patrick, and Kehoe were independent contractors during the audit period. In response, the defendant contends that we should defer to the board's interpretation of part C because it has previously been subjected to judicial scrutiny by the Superior Court and has been time-tested since the board's 1988 decision in Feshler v. Hartford Dialysis , Dept. of Labor, Employment Security Appeals Division, Board of Review Case No. 995-BR-88 (December 27, 1988) (copy contained in the file of this case in the Supreme Court clerk's office). Emphasizing the remedial nature of the act, the defendant argues that we should construe exceptions strictly in favor of workers, whom it is intended to benefit. The defendant then contends that the board's construction of part C as requiring the actual performance of services for other entities at the time of rendering the same services for the putative employer is consistent with the "critical statutory term 'customarily engaged.' " The defendant posits that the board's construction of part C does not "require a successful business but only [the performance of] services for others in an independent business that still remains subject to the risk of profit or loss." The defendant argues that requiring the actual provision of services to third parties other than the putative employer is consistent with the interpretations of part C in JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act , supra, 265 Conn. at 420-21, 828 A.2d 609, Daw's Critical Care Registry, Inc. v. Dept. of Labor , 42 Conn.Supp. 376, 622 A.2d 622 (1992), aff'd, 225 Conn. 99, 622 A.2d 518 (1993) (per curiam), and F.A.S. International, Inc. v. Reilly , 179 Conn. 507, 427 A.2d 392 (1980), along with numerous sister state cases. See, e.g., Carpet Remnant Warehouse, Inc. v. Dept. of Labor , 125 N.J. 567, 592-93, 593 A.2d 1177 (1991) ; Margoles v. Labor & Industry Review Commission , 221 Wis.2d 260, 269-73, 585 N.W.2d 596 (App.), cert. denied, 221 Wis.2d 654, 588 N.W.2d 631 (1998). Finally, the defendant posits that, even under the plaintiff's construction of part C of the test necessitating a totality of the circumstances analysis, the evidence in the record nevertheless supports the board's decision. We, however, agree with the plaintiff in part, and conclude that a new administrative hearing is required because a putative employee's work for other entities is a relevant, but not dispositive, factor in the totality of the circumstances analysis that governs the relevant inquiry under part C. "For purposes of the act, 'employment' is defined in part by . § 31-222 (a) (1) (B) (ii), which provides in relevant part that '[s]ervice performed by an individual shall be deemed to be employment subject to this chapter irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the administrator that (I) such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and (II) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (III) such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed .' This statutory provision is commonly referred to as the 'ABC test,' with parts A, B and C corresponding to clauses I, II and III, respectively. . This statutory provision is in the conjunctive. Accordingly, unless the party claiming the exception to the rule that service is employment shows that all three prongs of the test have been met, an employment relationship will be found." (Citation omitted.) JSF Promotions, Inc. v. Administrator, Unemployment Com pensation Act , supra, 265 Conn. at 418-19, 828 A.2d 609. Whether evidence that the putative employees performed services for third parties other than the putative employer is necessary to prove part C under § 31-222 (a) (1) (B) (ii) (III) presents an issue of statutory interpretation subject to plenary review in accordance with General Statutes § 1-2z. See, e.g., Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Com pensation Act , 320 Conn. 611, 642, 134 A.3d 581 (2016). In interpreting statutory language we "do not write on a clean slate, but are bound by our previous judicial interpretations of this language and the purpose of the statute." (Internal quotation marks omitted.) Commissioner of Public Safety v. Freedom of Information Commission , 312 Conn. 513, 527, 93 A.3d 1142 (2014). Moreover, it is well settled that we accord "great weight" and deference to previous agency interpretations of a statute when they are "time-tested" and "reasonable." (Internal quotation marks omitted.) Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act , supra, at 642-43, 134 A.3d 581. "[W]hen interpreting provisions of the act, we take as our starting point the fact that the act is remedial and, consequently, should be liberally construed in favor of its beneficiaries.... Indeed, the legislature underscored its intent by expressly mandating that the act shall be construed, interpreted and administered in such manner as to presume coverage, eligibility and nondisqualification in doubtful cases.... We also note that exemptions to statutes are to be strictly construed.... Nevertheless, the act should not be construed unrealistically in order to distort its purpose.... While it may be difficult for a situation to exist where an employer sustains his burden of proof under the ABC test . it is important to consider that [t]he exemption [under the act] becomes meaningless if it does not exempt anything from the statutory provisions . where the law and the facts merit the exemption in a given case.... Rather, statutes are to be construed so that they carry out the intent of the legislature.... We must construe the act as we find it ." (Citations omitted; internal quotation marks omitted.) Id., at 616-17, 134 A.3d 581 ; see also General Statutes § 31-274 (c). In applying the ABC test, we must balance preventing the use of sham independent contractor agreements to avoid unemployment insurance obligations against "hamper[ing] those who undertake to do business together as independent contracting parties, rather than as employer and employee," on a legitimate basis. (Internal quotation marks omitted.) Daw's Critical Care Registry, Inc. v. Dept. of Labor , supra, 42 Conn.Supp. at 404, 622 A.2d 622. In the present case, it is undisputed that the plaintiff has satisfied parts A and B of the ABC test. Accordingly, we turn to part C, which considers whether the putative employee "is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed ." General Statutes § 31-222 (a) (1) (B) (ii) (III). The "adverb 'independently' modifies the word 'established' and in that context, fairly construed, means that the trade, occupation, profession or business was established independently of the 'employer' . Moreover, such 'independently established activity' must be one in which the 'employee' is 'customarily engaged.' 'Customarily' has been said to mean 'usually, habitually, regularly.' . The use of 'is,' the present tense, shows that the 'employee' must be engaged in such independently established activity at the time of rendering the service which is the subject of inquiry. An established business has been said to be one that is 'permanent, fixed, stable, or lasting.' " (Citations omitted.) Daw's Critical Care Registry, Inc. v. Dept. of Labor, supra, 42 Conn.Supp. at 407, 622 A.2d 622. The "performance of like services . must be independent of whatever connection [the putative employees] have with [the putative employer] and their continued performance of such like services must not be subject to their relationship with the principal." F.A.S. International, Inc. v. Reilly , supra, 179 Conn. at 515, 427 A.2d 392. The question is whether "one or more enterprises created by [the putative employees] which exist separate and apart from their relationships with [the putative employer] and which will survive the termination of that relationship." Id. Put differently, part C "seeks to discern whether the worker is wearing the hat of an employee of the employing company, or is wearing the hat of his own independent enterprise." (Internal quotation marks omitted.) Athol Daily News v. Board of Review of the Division of Employment & Training , 439 Mass. 171, 181, 786 N.E.2d 365 (2003). In considering the type of evidence necessary to prove part C, we begin with JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act , supra, 265 Conn. at 413, 828 A.2d 609, on which both parties heavily rely. In JSF Promotions, Inc. , we considered whether product demonstrators who distributed samples and coupons to customers in stores, were employees of the company, JSF Promotions, Inc. (JSF), which contracted with the stores to provide those product demonstration services, despite the fact that the demonstrators worked under an " '[i]ndependent [c]ontractor [a]greement.' " Id., at 416, 828 A.2d 609. Noting the lack of evidence of independent enterprise, such as business cards, we upheld the board's determination that the product demonstrators did not satisfy part C. Id., at 416-17, 828 A.2d 609. Citing sister state cases, including In the Matter of the Appeal of Hendrickson's Health Care Service , supra, 462 N.W.2d at 657-59, we concluded that "the existence of a contractual provision permitting the demonstrators in the present case to perform demonstration services for entities other than JSF does not necessarily mean that they have established businesses independent of their relationship with JSF. If the legislature had intended to exclude from the statutory definition of employment those workers who, in addition to satisfying the first two prongs of the test, are free to engage in an independently established trade, occupation, profession or business, but who have not done so customarily, it easily could have so provided. Accordingly, we conclude that the third prong is not satisfied merely because the individuals are free to establish businesses or to work for other entities." (Emphasis altered.) JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act , supra, at 420, 828 A.2d 609 ; see id., at 420-21, 828 A.2d 609 ("[t]he fact that, under their contract with JSF, the demonstrators were permitted to engage in an independently established trade, occupation, profession or business does not demonstrate that they were not at the economic risk of unemployment by the conduct of JSF" [internal quotation marks omitted] ). In our view, the defendant and the trial court read too narrowly our statements in JSF Promotions, Inc. , that part C "is not satisfied merely because the individuals are free to establish businesses or to work for other entities," and that "an individual who is permitted under a contract for services to establish a business or perform additional services for third parties does not necessarily do so "; (emphasis altered) id., at 420, 828 A.2d 609 ; as standing for the proposition that an individual must actually perform services for third-party entities in order to be considered an independent contractor. Our observation in JSF Promotions, Inc., that there was no evidence that the product demonstrators had engaged in services for other companies must be read in the context of the record in that case, in which there was no "documentation that the demonstrators were in business for themselves," such as business cards. (Internal quotation marks omitted.) Id., at 416, 828 A.2d 609. Without any other evidence of an independent business, only proof that the product demonstrators had also performed their services for third parties while working for JSF would have supported the employer's position that they were in fact independent contractors. Particularly when read in light of this court's other cases considering part C, JSF Promotions, Inc., suggests that the performance of services for third parties is relevant evidence with respect to part C, but must be viewed in the context of the entire record. Both our cases and the board's decisions applying part C of the ABC test counsel, then, that part C must be considered in relation to the totality of the circumstances, with that inquiry guided by a multifactor test. See, e.g., King's Speech & Learning Center v. Administrator, Unemployment Compensation Act , Dept. of Labor, Employment Security Appeals Division, Board of Review Case No. 9000-BR-15 (June 2, 2015); Martelle Builders, Inc. v. Administrator, Unemployment Compensation Act , supra, Dept. of Labor, Board of Review Case No. 9010-BR-11. This "totality of the circumstances test . evaluates the dynamics of the relationship between the putative employee and the employer; there is no dispositive single factor or set of factors." Industrial Claim Appeals Office v. Softrock Geological Services, Inc. , supra, 325 P.3d at 565. Factors to consider in evaluating the totality of the circumstances under part C include: (1) the existence of state licensure or specialized skills; (2) whether the putative employee holds himself or herself out as an independent business through the existence of business cards, printed invoices, or advertising; (3) the existence of a place of business separate from that of the putative employer; (4) the putative employee's capital investment in the independent business, such as vehicles and equipment; (5) whether the putative employee manages risk by handling his or her own liability insurance; (6) whether services are performed under the individual's own name as opposed to the putative employer; (7) whether the putative employee employs or subcontracts others; (8) whether the putative employee has a saleable business or going concern with the existence of an established clientele; (9) whether the individual performs services for more than one entity; and (10) whether the performance of services affects the goodwill of the putative employee rather than the employer. See id., at 564-65 ; see also Margoles v. Labor & Industry Review Commission , supra, 221 Wis.2d at 269, 585 N.W.2d 596 (applying five factor test to part C inquiry, namely: "[1] integration; [2] advertising or holding out; [3] entrepreneurial risk; [4] economic dependence; and [5] proprietary interest"). Thus, just as the mere freedom to provide services for third parties is not by itself dispositive under part C; JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act , supra, 265 Conn. at 420, 828 A.2d 609 ; "whether the individual actually provided services for someone other than the employer is [not] dispositive proof of an employer-employee relationship." Industrial Claim Appeals Office v. Softrock Geological Services, Inc. , supra, 325 P.3d at 565. Context matters-consistent with JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act , supra, at 420, 828 A.2d 609, and Daw's Critical Care Registry, Inc. v. Dept. of Labor, supra, 42 Conn.Supp. at 408-409, 622 A.2d 622 -and our sister state cases demonstrate that the degree to which a putative employee provides similar services for third parties cannot be considered in isolation from, or given primacy over, the other factors. For example, in Softrock Geological Services, Inc. , the Colorado Supreme Court held that the administrative agency had improperly applied part C in determining that a geologist was an employee because he worked only for a single company during the audit period, in light of evidence that the company "did not provide [the geologist] with training or tools during this time; rather, [the geologist] was expected to, and did, use his own vehicle, tools, and equipment (except for certain specialized equipment that he rented from [the company] ) to complete the jobs. [The geologist] also had his own business cards, maintained his own liability insurance, and did not represent himself as a [company] employee." Industrial Claim Appeals Office v. Softrock Geological Services, Inc. , supra, at 562. Similarly, the Vermont Supreme Court has concluded that a seamstress satisfied part C because, in addition to having "knitted for other companies and individuals in the past," she "owned her own equipment," meaning that her nearly forty hour per week workload for the company at issue did not require a finding of employment insofar as some people need to work multiple jobs "full-time . simply to make ends meet." (Internal quotation marks omitted.) Fleece on Earth v. Dept. of Employment & Training , 181 Vt. 458, 467-68, 923 A.2d 594 (2007). In contrast, In the Matter of the Appeal of Hendrickson's Health Care Service , supra, 462 N.W.2d at 659, the South Dakota Supreme Court held that health-care providers did not satisfy part C, when in addition to not having "any clientele independent of that provided by" the referral service, they also "did not advertise their health care services . did not have business premises or business cards," and were subject to dismissal for "violating the provisions of the 'Subcontractor's Responsibilities' document," indicating that they were "employed by [the referral service] and dependent upon it for their livelihood." These cases demonstrate that evidence of the provision of services to third parties, or lack thereof, becomes more significant in proving independent contractor status in the context of cases lacking other indicia of a putative employee's independent enterprise. We emphasize that particular caution is necessary in considering the relative size or success of the putative employee's otherwise independent business in connection with the totality of the circumstances analysis under part C. Giving improper primacy to this factor risks "subjecting an employer unfairly to the decisions of the putative employee and an unpredictable hindsight review," without consideration of "the intent of the parties, the number of weekly hours the putative employee actually worked for the employer, or whether the putative employee even sought other work in the field." Industrial Claim Appeals Office v. Softrock Geological Services, Inc. , supra, 325 P.3d at 565 ; see Athol Daily News v. Board of Review of the Division of Employment & Training , supra, 439 Mass. at 182, 786 N.E.2d 365 ("[t]he breadth of each carrier's delivery service is a function, not only of the original subscriber list given to the carrier by the [newspaper], but of the individual initiative of the carrier"). It also, as the plaintiff points out, would have a chilling effect on businesses' willingness to contract with otherwise legitimate small businesses with minimal client bases and revenues, such as those run as start-ups or by persons who are transitioning to retirement. The defendant's reliance on the "underlying remedial purpose of the act as a whole" notwithstanding, we should not "interfere with the legislature's intent of exempting employers from their obligation to pay unemployment taxes when they hire independent contractors to perform work for the enterprise. In other words, because all portions of a statute are not intended to have a remedial effect, the application of the remedial canon of statutory interpretation should be restrained in order to effectuate the legislative compromise" embodied by the ABC test. Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act , supra, 320 Conn. at 658, 134 A.3d 581. Turning to the record in the present case, we conclude that the trial court improperly upheld the board's decision that the plaintiff did not satisfy part C of the ABC test. The board's decision was based on a misapprehension of the governing legal standard insofar as it accorded dispositive weight to the lack of evidence that Draco, Kehoe, and Patrick performed services for third parties, despite the ample evidence suggesting that they had independent business enterprises. Accordingly, we conclude that remand to the board is required for fact-finding in accordance with the proper legal standard. See Almada v. Administrator, Unem ployment Compensation Act , 137 Conn. 380, 392-93, 77 A.2d 765 (1951) (remanding case to administrative agency for new hearing and finding of facts in accordance with court's articulated definition of lockout); Fabrizi v. Administrator, Unemployment Compensation Act , 12 Conn.App. 207, 209-12, 530 A.2d 203 (1987) (trial court should have remanded case to agency to determine factually whether employee quit voluntarily and without cause, rather than directing judgment); accord Dept. of Public Safety v. State Board of Labor Relations , 296 Conn. 594, 606 and n.16, 996 A.2d 729 (2010) (remand to labor agency required for application of proper statutory standard defining "managerial employees"); see also General Statutes § 31-249b ; Practice Book § 22-9 (a). The judgment is reversed and the case is remanded to the trial court with direction to sustain the plaintiff's appeal and to remand the matter to the Board of Review of the Employment Security Appeals Division for further proceedings in accordance with this opinion. In this opinion the other justices concurred. The ABC test is set forth in General Statutes § 31-222 (a) (1) (B) (ii), which defines the term "employment" to include, in part, services performed by "any individual who, under either common law rules applicable in determining the employer-employee relationship or under the provisions of this subsection, has the status of an employee. Service performed by an individual shall be deemed to be employment subject to this chapter irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the administrator that (I) such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and (II) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (III) such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed ." See also JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 418, 828 A.2d 609 (2003) ("[t]his statutory provision is commonly referred to as the 'ABC test,' with parts A, B and C corresponding to clauses I, II and III, respectively"). We note that, although General Statutes § 31-222 has been amended by the legislature since the events underlying the present appeal; see, e.g., Public Acts 2013, No. 13-168, § 1; those amendments have no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. We draw our recitation of the facts from those found by the board in its original decision and its subsequent decision on the plaintiff's motion to correct its findings. The plaintiff does not contest the accuracy of these findings. We note that, although General Statutes § 31-242 has been amended by the legislature since the events underlying the present appeal; see Public Acts 2016, No. 16-169, § 7; that amendment has no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute. We note that, although General Statutes § 31-249 has been amended by the legislature since the events underlying the present appeal; see Public Acts 2016, No. 16-169, § 11; that amendment has no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute. We note that, although General Statutes § 31-249b has been amended by the legislature since the events underlying the present appeal; see Public Acts 2016, No. 16-169, § 13; that amendment has no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute. Part C has been described as the ABC test's "prong most likely to narrow legitimate independent contracting." A. Deknatel & L. Hoff-Downing, "ABC on the Books and in the Courts: An Analysis of Recent Independent Contractor and Misclassification Statutes," 18 U. Pa. J.L. & Soc. Change 53, 70 (2015) ; see also Lake Preston Housing Corp. v. Dept. of Labor, 587 N.W.2d 736, 739 (S.D. 1999) (observing that "independent economic enterprise" demonstrates putative employee's willingness to assume "the risk of his or her own unemployment"). Our conclusion in JSF Promotions, Inc., was wholly consistent with the factual records considered in this court's previous part C jurisprudence. See F.A.S. International, Inc. v. Reilly, supra, 179 Conn. at 514-15 and n.6, 427 A.2d 392 (holding that art school satisfied part C with proof that artists, writers, and photographers who reviewed work of its students practiced their artistic professions elsewhere independently of school, in contrast to delivery person in Rozran v. Durkin, 381 Ill. 97, 105, 45 N.E.2d 180 [1942], with essentially full-time schedule, with no discussion of financial viability of artists' careers beyond their adjunct work for school or other indicia of independent businesses); Daw's Critical Care Registry, Inc. v. Dept. of Labor, supra, 42 Conn.Supp. at 410-11, 622 A.2d 622 (holding part C satisfied with respect to licensed nurses who received assignments from referral service, and relying on their performance of assignments for other medical facilities while working for plaintiff, to reject argument that nurses needed "a saleable business before they could be considered customarily engaged in an independently established profession" [internal quotation marks omitted] ). Contrary to the defendant's arguments, the Superior Court cases relied upon by the trial court similarly do not support the position that the performance of services for third parties is necessary to prove part C. Apart from demonstrating substantially more control by the employer over the actions of the putative employee with respect to part A of the ABC test, the part C evidence in these cases had minimal indicia of independent business in addition to the lack of evidence of work for third parties. See, e.g., Labor & Logistics Management v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Hartford, Docket No. CV-09-4042142S (October 3, 2012) (54 Conn. L. Rptr. 822, 825, 2012 WL 5205557) (concluding that truck drivers' skills and state licensure did not make them independent contractors when they did not have their "own tractors or trucks, advertised their services to the public," or have their own " 'established clientele or place of business,' " which rendered them distinct from nurses in Daw's Critical Care Registry, Inc. v. Dept. of Labor, supra, 42 Conn.Supp. at 376, 622 A.2d 622, who worked for other agencies in addition to having state professional licensure). The appendices to the parties' briefs supply us with a comprehensive assortment of the board's decisions in this area. Given their fact sensitivity, we disagree, however, with the defendant's argument that they demonstrate that the board has a time-tested interpretation requiring performance of the same kinds of services for other entities in order to satisfy part C. See Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act, supra, 320 Conn. at 646, 134 A.3d 581 (The court rejected the claim that the board has a "long-standing agency interpretation" of part B "to assist in determining when services are performed outside the places of business of the enterprise. Rather, the board has reached different conclusions based on the facts and circumstances of individual cases."). Specifically, with the exception of the earliest cited case, Feshler v. Hartford Dialysis, supra, Dept. of Labor, Board of Review Case No. 995-BR-88, all of the cited decisions, particularly those subsequent to JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. at 413, 828 A.2d 609, demonstrate adherence to a nuanced multifactor test, with work for third parties being but one factor in these decisions, all of which are factually distinguishable from this case given the lack of proof therein with respect to the other factors, such as advertising or capital investment. See, e.g., King's Speech & Learning Center v. Administrator, Unemployment Compensation Act, Dept. of Labor, Employment Security Appeals Division, Board of Review Case No. 9000-BR-15 (June 2, 2015) (part C satisfied by therapist who had her own business and provided services for clients independently, but not satisfied by other therapists who " 'moonlight [ed]' " for third parties when there was no evidence with respect to nature of their independent businesses beyond single listing on Internet website); Martelle Builders, Inc. v. Administrator, Unemployment Compensation Act, supra, Dept. of Labor, Board of Review Case No. 9010-BR-11 (part C not satisfied when carpenters had own tools, but there was no evidence of independent business such as letterhead, invoices, or business cards and home improvement contractor expected them to leave job site clean "presumably because failing to do so could affect [its goodwill]"); Wright v. Seniors Helping Seniors, Dept. of Labor, Employment Security Appeals Division, Board of Review Case No. 9003-BR-10 (May 25, 2010) (part C not satisfied by home care aide who received workers' compensation and liability insurance coverage from agency, had no licensing, no business cards, tools or advertising, and was paid on hourly basis); Chamberland v. Labor & Logistics Management, Dept. of Labor, Employment Security Appeals Division, Board of Review Case No. 9004-BR-08 (December 16, 2008) (part C not satisfied by commercial truck driver who did not own truck or carry liability insurance, or advertise his services or carry business cards); Mintz v. Administrator, Unemployment Compensation Act, supra, Dept. of Labor, Board of Review Case No. 836-BR-91 (part C satisfied when unemployment claimant held herself out as independent business for tax purposes, and had stationary and business cards, with no discussion of degree of work for third parties); see also Feshler v. Hartford Dialysis, supra, Dept. of Labor, Board of Review Case No. 995-BR-88 (part C not satisfied with respect to dialysis nurses, who were trained by hospital and devoted full working time to it, with no evidence that they worked for other facilities, other than single nurse's two week stint at children's summer camp). Moreover, as in Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act, supra, 320 Conn. at 655-56, 134 A.3d 581, we also find instructive the defendant's own reference materials provided to employers, namely, the state of Connecticut's publication entitled "Self-Assessment of the Employer-Employee Relationship for CT Unemployment Taxes," available at https://www.ctdol.state.ct.us/uitax/abctest.doc (last visited March 8, 2017). The section pertaining to part C of the test indicates that whether the putative employee works for more than one entity is but one factor, insofar as it focuses primarily on the independent nature of the putative employee's business, such as: (1) letterhead; (2) other client references; (3) advertisements; (4) sales tax registration and collection; (5) holding business liability insurance; (6) business cards; (7) bills or invoices with a printed logo or trade name; and (8) federal business identification number. Id., p. 5. The economic success of the enterprise is not mentioned at all, and whether the putative employee works for more than one entity is but one of eight factors also listed in part A that "may help to determine the existence of a business" under part C. Id., pp. 2-5. This document suggests that the defendant does not consider an otherwise independent business' economic success or multiplicity of clients to be a singularly dispositive factor under part C. We acknowledge the defendant's reliance on Auto Damage Appraisers, Inc. v. Industrial Commission, 666 P.2d 1113, 1114 (Colo. App. 1983), in support of the proposition that automobile damage appraisers working for an appraisal agency did not satisfy part C. Particularly given the multifactor test articulated much more recently by the Colorado Supreme Court in Industrial Claim Appeals Office v. Softrock Geological Services, Inc., supra, 325 P.3d at 564-65, we believe that the Colorado intermediate appellate court's decision in Auto Damage Appraisers, Inc., lacks persuasive value because it contains no factual details about the nature of the relationship at issue in that case. We note that other sister state cases provide illustrative examples. Compare Vector Marketing Corp. v. Maine Unemployment Ins. Commission, 610 A.2d 272, 273-75 (Me. 1992) (cutlery sales managers and representatives lacked proprietary interest necessary to satisfy part C when there was no evidence they held themselves out as "an independent businessperson," identified very closely with cutlery company through business cards, office signage, and business checks, had noncompete provisions in their contracts, and sold no products other than company's), and Margoles v. Labor & Industry Review Commission, supra, 221 Wis.2d at 270-73, 585 N.W.2d 596 (upholding administrative agency finding under part C that physicians were employees of clinic given no evidence of compensation from other sources, in combination with unexplained minimal or nonexistent advertising in telephone book, no entrepreneurial risk beyond not being paid by clinic, no evidence of ownership of equipment or other tangible assets), with Athol Daily News v. Board of Review of the Division of Employment & Training, supra, 439 Mass. at 181-82, 786 N.E.2d 365 (holding that newspaper carriers satisfied part C because they used their own vehicles, were free to deliver for other newspapers or companies, purchased newspapers wholesale and resold them to subscribers, with lack of advertising not dispositive because carriers were free to advertise if they desired "in an attempt to increase the number of subscribers on their routes or to acquire similar relationships with other publishing companies"). Thus, we disagree with the decision of the New Jersey Supreme Court, relied upon by the defendant, in Carpet Remnant Warehouse, Inc. v. Dept. of Labor, supra, 125 N.J. at 567, 593 A.2d 1177. In that case, the court articulated a multifactor test in remanding the case to the administrative agency to determine whether carpet installers could satisfy part C, and directed the agency to "consider the amount of remuneration each installer received from [the putative employer] compared to that received from other retailers. Those who received a small proportion of compensation from [the putative employer] are more likely to be able to withstand losing [its] business." Id., at 593, 593 A.2d 1177. We similarly disagree with the decision of the Arkansas Court of Appeals in Stepherson v. Director, Employment Security Dept., 49 Ark. App. 52, 895 S.W.2d 950 (1995), on which the defendant also relies. In Stepherson, the court concluded that part C was not satisfied solely on the basis of the fact that the truck drivers drove full-time for the single company at issue, with no consideration or discussion of other indicia of an independent business. Id., at 55, 895 S.W.2d 950. Moreover, as the Massachusetts Supreme Judicial Court has pointed out, an overly "literal application" of part C requiring proof that the putative employee performs work for other parties "would deny independent contractor status to almost any worker whose trade, occupation, profession or business, although established and operated independently, remains economically viable solely because of its contractual relationships with other entities, and would render superfluous any examination of criteria set forth in part (a) (freedom from control over performance of services) or part (b) (performance of services outside the usual course or places of business) of the ABC test." Athol Daily News v. Board of Review of the Division of Employment & Training, supra, 439 Mass. at 180, 786 N.E.2d 365. In both its brief and during oral argument before this court, the plaintiff requested that we, in essence, grant appellate relief that would direct the board to render judgment in its favor on the basis of the undisputed facts contained within the record. Given the fact sensitive nature of the part C determination, it appears that more than one reasonable conclusion may be derived from the facts of this case with respect to Draco, Kehoe, and Patrick, particularly given the lack of evidence in the record with respect to business development efforts undertaken by Kehoe and Patrick as compared to Draco. See Toll Bros., Inc. v. Inland Wetlands Commission, 101 Conn.App. 597, 602-603, 922 A.2d 268 (2007) (remand to agency for further proceedings is appropriate remedy when court "not convinced as a matter of law" when there is more than one "conclusion that [it] reasonably could reach"). Accordingly, remand to the board for further proceedings in accordance with our explanation of part C is necessary in order to avoid invading the board's fact-finding province under the act; should the board deem an additional remand to the referee appropriate or necessary, it remains free to order that remedy. See General Statutes § 31-249.

12489218

STATE of Connecticut v. Mack MILNER

State v. Milner