author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. KEITH E. TIETJEN
    (AC 27343)
    DiPentima, McLachlan and Hennessy, Js.
    Argued October 9
    officially released December 18, 2007

      James J. Ruane, for the appellant (defendant).

      Bruce Lockwood, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Michael A. DeJoseph, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Keith Tietjen, appeals from the judgment of conviction rendered by the trial court following the denial of his motion to dismiss and entry of a nolo contendere plea to operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes (Rev. to 2003) § 14-227a (a) (2). On appeal, the defendant claims that the results of the Intoxilyzer 5000 should have been suppressed because its use does not comply with department of public safety regulations. We affirm the judgment of the trial court.

The essential facts relevant to our disposition of the defendant’s appeal are undisputed. Between midnight and 12:15 a.m. on July 10, 2004, a 2003 Hummer H-2 was being driven on the Merritt Parkway eastbound in the area of exit thirty-eight. When that vehicle was in the deceleration lane for exit thirty-eight, it went off the exit ramp, hit a small tree and continued through the exit thirty-eight on ramp before striking another tree and coming to rest. Sergeant James Walsh of the Norwalk police department was the first to arrive on the scene. The defendant, who was standing outside the car, stated that he had not been driving the vehicle. Walsh smelled the odor of alcohol on the defendant’s person and observed some heavy front end damage to the vehicle.

Trooper Brian Rogawlski of the state police was the next to arrive on the scene. The defendant refused to answer any questions. Rogawlski also smelled alcohol coming from the defendant’s person and observed that he had red, glassy eyes and that there was a cut on his hand and lip. From these observations and examination of the interior and exterior of the vehicle, Rogawlski concluded that the defendant had been operating the vehicle. He proceeded to administer field sobriety tests on the defendant, which the defendant failed. The defendant was taken to the state police Troop G barracks in Bridgeport at about 1 a.m. where he was asked what time he had started drinking, and he responded by stating that he had begun drinking at 10 p.m. on July 9, 2004. The defendant also was asked what time he had stopped drinking, and he stated that he had stopped at 1 a.m. on July 10, 2004. The defendant stated that he had four beers at the Crabshell in Stamford and that he had not eaten since breakfast.

The defendant was asked to perform a breath test on the Intoxilyzer 5000. His first test was taken at 1:24 a.m. on July 10, 2004, and reported a result of 0.225 percent. The defendant took a second breath test at 2:03 a.m., with a result of 0.209 percent. Thereafter, the state charged the defendant with operating a motor vehicle while under the influence of intoxicating liquor or drugs with an elevated blood alcohol content in violation of § 14-227a (a) (2).

Prior to trial, the defendant filed several motions in limine to preclude the results of the breath tests. On October 11, 2005, the parties argued the motions, which the court denied. In the defendant’s motion to preclude the results of the breath tests, he argued for preclusion because the tests did not comply with state regulations in force at the time of the incident. The court denied this motion, interpreting § 14-227a (b) and § 14-227a-la of the Regulations of Connecticut State Agencies to not require that the breath test results be recorded as described by the regulations, meaning as a weight per weight percent, only that the tests be performed in accordance with the regulations, because of explicit statutory requirements. The court further ruled that the test performed in this case complied with the regulations.

On October 21, 2005, the defendant entered a plea of nolo contendere to the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a. On December 21, 2005, the court sentenced the defendant to six months incarceration, execution suspended after two days, the mandatory minimum, and two years of probation and also ordered him to pay a $500 fine. This appeal followed.

The defendant claims that the court improperly denied his motion in limine to preclude the results of the breath tests. He specifically argues that the results of the Intoxilyzer 5000 do not comply with the department of public safety regulations because the apparatus reports blood alcohol content in terms of a weight per volume percent and not a weight per weight percent. The state argues that the court properly denied the motion and that the issue presented already has been decided by this court in State v. Pilotti, 99 Conn. App. 563, 914 A.2d 1067, cert. denied, 282 Conn. 903, 919 A.2d 1037 (2007). We agree with the state.

InPilotti, the defendant argued that the court improperly admitted the breath test results because the test failed to comply with the statutes and regulations. Id. The only difference in the case at bar is that this claim was argued in terms of a motion in limine. This is a distinction without a difference. In Pilotti, this court cited § 14-227a (d), which provides in relevant part: “The Commissioner of Public Safety shall ascertain the reliability of each method and type of device offered for chemical testing and analysis purposes of blood, of breath and of urine and certify those methods and types which said commissioner finds suitable for use in testing and analysis of blood, breath and urine, respectively, in this state. The Commissioner of Public Safety shall adopt regulations . . . governing . . . the operation and use of chemical test devices ... as said commissioner finds necessary ... to insure reasonable accuracy in testing results.” (Internal quotation marks omitted.) State v. Pilotti, supra, 99 Conn. App. 568. The court held that “under [the] plain language of § 14-227a (d), chemical testing is not limited to blood testing. The statute also clearly contemplates the testing of breath.” Id. Further, “General Statutes § 14-227a (b) requires the state to establish as a foundation for the admissibility of chemical analysis evidence that the test was performed with the equipment approved by the department of public safety. It does not require . . . that the device satisfy the criteria set forth in the regulations.” State v. Pilotti, supra, 570. This is because, although the “testing that complies with the regulatory requirements is deemed to be competent evidence . . . [i]t does not, however, proscribe the admission of evidence that fails to satisfy those requirements.” (Internal quotation marks omitted.) Id., quoting State v. Kirsch, 263 Conn. 390, 408, 820 A.2d 236 (2003).

As this court ruled in Pilotti, and we hold in this case, the statutoiy requirement was met through the use of the Intoxilyzer 5000 results. State v. Pilotti, supra, 99 Conn. App. 570.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s name also appears in the record as Keith Tiet-Jen.

       The plea of nolo contendere was conditional on the right to appeal pursuant to General Statutes § 54-94a and Practice Book § 61-6 (2) (i).

       General Statutes (Rev. to 2003) § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle on a public highway of this state ... (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content. For the purposes of this section, ‘elevated blood alcohol content’ means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol, by weight.”

       The facts were alleged by the prosecutor during the defendant’s plea canvass as evidence that the state would have been able to prove had the case gone to trial. The defendant did not contest what was alleged.

       During the suppression hearing, Robert H. Powers, director of the controlled substance toxicology laboratory for 1he department of public safety, testified that the Intoxilyzer 5000 measures ethanol in a gas sample, meaning breath, and is not meant for blood samples. Use of the Intoxilyzer 5000 produces a test result expressing blood alcohol concentration as a weight per volume percent.

       Section 14-227a-la of the Regulations of Connecticut State Agencies in effect at the time of the incident provides in relevant part: “(4) ‘Blood ethyl alcohol concentration’ means the unit weight of alcohol per one hundred (100) unit weights of blood expressed as percentage; for example, five hundredths (0.05) gram of alcohol per one hundred (100) grams of blood shall be expressed as five hundredths (0.05) per cent. . . .
      “(7) ‘Device’ or ‘instrument’ means any apparatus and associated accessories by means of which equivalent blood alcohol concentration is indicated or recorded on a dial, meter, scale, chart or printed record activated by a reaction between a sample introduced and appropriate detector in a chamber, tube or vessel within such apparatus . . . .”
      The defendant argues that these definitions in combination mean that the test reports must be based on an equivalent concentration on a weight per weight basis. The definitions were amended in 2005 to explicitly allow for the testing to be recorded in an equivalent ratio to blood alcohol content. Regs., Conn. State Agencies § 14-227a-lb.

       Blood alcohol content is expressed as grams of alcohol per 100 milliliters of blood, which is a weight per weight ratio. The Intoxilyzer 5000 determines alcohol concentration as grams of alcohol per 210 liters of breath which is a weight per volume ratio. The weight per volume ratio is then converted into a ratio of weight per weight. State v. Pilotti, 99 Conn. App. 563, 573-74, 914 A.2d 1067, cert. denied, 282 Conn. 903, 919 A.2d 1037 (2007).

       See State v. Jones, 51 Conn. App. 126, 721 A.2d 903 (1998), cert. denied, 247 Conn. 958, 723 A.2d 814 (1999).

       The defendant also claimed that the regulations rise to the level of a statute. We have found no authority to support that statement.

       The opinion in Pilotti was published after the defendant’s opening brief was submitted. Counsel for the defendant argued at oral argument that Pilotti decided a different issue and could be distinguished because it did not deal directly with the regulations. Our reading of Pilotti belies that argument. See State v. Pilotti, supra, 99 Conn. App. 567-71.


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    EDUARDO MARTINEZ v. COMMISSIONER OF CORRECTION
    (AC 27798)
    DiPentima, Lavine and Dupont, Js.

      Argued September 21
    officially released December 18, 2007

      Christopher M. Neary, special public defender, for the appellant (petitioner).

      Madeline A. Melchionne, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, Henri Alexandre, assistant attorney general, and Kathryn Ward Bare, special deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

DUPONT, J.

The petitioner, Eduardo Martinez, appeals from the habeas court’s judgment denying his petition for a writ of habeas corpus. The habeas court thereafter granted the petition for certification to appeal to this court. See Practice Book § 80-1. The petitioner’s primary claim is that the concurrent sentences imposed after his nine pleas of guilty, pursuant to a plea bargain, violated his federal constitutional rights because the state did not honor his reasonable expectation of (1) receiving the same amount of credit for presentence confinement for every one of the crimes committed on various dates so that the served sentence for each crime would expire simultaneously and (2) receiving good time credit as an inmate for all of the crimes, regardless of when committed. His petition also alleged that he was denied equal protection of the law after his commitment because he was treated differently from other prisoners when he was given a classification by the respondent, the commissioner of correction, that denied him the ability to earn good time credit. We affirm the judgment of the habeas court.

The following factual and procedural history is relevant to the petitioner’s appeal. The petitioner was arrested on November 22, 1994, for robbery in the first degree, stemming from an incident that occurred on October 13, 1994. While the case was pending and he was being held, the petitioner was arrested, arraigned and held in lieu of bond on eight additional charges allegedly committed on various dates, almost all of which involved robbery in the first degree. Five of the nine crimes were committed after October 1, 1994, and four of them were committed prior to October 1, 1994. On January 2,1996, the petitioner pleaded guilty, pursuant to a plea bargain, to all of the crimes with which he was charged.

On February 16, 1996, the court sentenced the petitioner for all of the nine crimes to a total effective term of twenty-five years imprisonment on each charge, to run concurrently, execution suspended after sixteen years, with five years of probation. The petitioner also received a sentence of one year, for another crime, to be served consecutively to the sentences for the nine crimes. Due to his contemptuous behavior in court at the time of sentencing, the petitioner additionally was found guilty of two counts of contempt, and the court imposed an additional six months on each of the other sentences to be served consecutively to his one year sentence.

I

Before discussing the issues raised by the petitioner in his petition, we briefly address two other claims he has raised. He claims that the court made factual errors in its memorandum of decision and should not have allowed the trial prosecutor to testify. He first argues that the alleged factual errors require a reversal of the denial of his petition, a new habeas trial because the court’s findings deprived him of his federal constitutional rights and a finding of ineffective assistance of counsel. The petitioner’s brief does not specify which particular constitutional rights were violated.

The first factual error of which the petitioner complains is that the court stated that attorney Matthew Collins represented the petitioner at the time of the plea when, in fact, attorney William Collins, Matthew Collins’ father, did so. The second error claimed is the court’s finding that William Collins testified at the habeas proceeding when, in fact, it was Matthew Collins. The third claimed error is the court’s statement in its memorandum of decision that the prosecutor testified that the petitioner was not concerned with good time credits.

The petitioner’s counsel at the habeas hearing named both of the petitioner’s trial counsel and noted that the petition originally alleged that attorney Matthew Collins represented the petitioner at the time of the plea. The court’s decision did not depend, however, on a finding of which of the father-son legal team was present at the time the petitioner entered his plea or a finding about whether the prosecutor believed that the petitioner was or was not concerned with good time credit. Because the claimed factual errors were not the bases of the court’s decision, they afford no reason to disturb that decision. Furthermore, the petitioner did not file a motion for rectification of any claimed factual errors of the court in accordance with Practice Book § 66-5. His failure to do so undermines his ability to obtain a reversal of the court’s decision due to those alleged errors. See DiBella v. Widlitz, 207 Conn. 194, 203-204, 541 A.2d 91 (1988).

In addition to his assertion of claimed factual errors of the court, the petitioner asserts that the prosecutor who negotiated his plea agreement should not have been allowed to testify at the habeas proceeding because the state, as well as the commissioner of correction, is a respondent. The state, therefore, should not have been allowed to rebut the petitioner’s allegations of his petition because it had not filed a separate return. The petitioner argues that without a response from the state, it should have been defaulted and a judgment rendered for the petitioner. The petitioner also claims that the respondent’s return stated that the “petitioner is left to his proof’ as to his claim that good time and presentence credits were part of his plea, a response, according to him, which is not a denial.

In a habeas petition involving an inmate in the state’s prisons, there is only one respondent, the commissioner of correction, who may be represented by the attorney general of the state or the chief state’s attorney or both. General Statutes §§ 3-125 and 51-277 (c); see Tyson v. Commissioner of Correction, 261 Conn. 806, 807, 808 A.2d 653 (2002), cert. denied sub nom. Tyson v. Armstrong, 538 U.S. 1005, 123 S. Ct. 1914, 155 L. Ed. 2d 836 (2003); Blumenthal v. Barnes, 261 Conn. 434, 449, 804 A.2d 152 (2002).

The petitioner believes that there are two respondents, the state and the commissioner of correction, and, therefore, that two responses or returns to the petition were required. Because the state is not the respondent in a habeas petition addressed to the commissioner of correction, the response of the attorney general, appearing for the commissioner, is the only response required. In this case, the return of the commissioner stating that, as to some of the allegations of the petitioner, “the petitioner is left to his proof’ suffices as a denial of those allegations. See Postemski v. Watrous, 151 Conn. 183, 185, 195 A.2d 425 (1963). The petition is in the nature of a pleading, and the return is in the nature of an answer. Carpenter v. Commissioner of Correction, 274 Conn. 834, 842 n.7, 878 A.2d 1088 (2005). A petition generally conforms to a complaint in a civil action. Young v. Commissioner of Correction, 104 Conn. App. 188, 194, 932 A.2d 467 (2007). The court found, and we agree, that the respondent fully complied with Practice Book § 23-30, which governs the return in habeas corpus cases.

We next consider whether the prosecutor should have been allowed to testify at the habeas hearing. We note that the prosecutor was listed as a witness prior to the inception of the habeas trial. After the petitioner presented his evidence, the respondent was entitled to present evidence regarding the alleged contents of the plea agreement, including the prosecutor’s knowledge of it, in order to attempt to rebut the allegations of the petition and the testimony of the petitioner. We conclude that the prosecutor was properly allowed to testily.

II

We next consider the primary issue raised by the petitioner in his petition for a writ of habeas corpus. The amended petition alleged that the petitioner reasonably understood that the sentences he received in exchange for entering pleas of guilty on nine dockets were to run concurrently and were to be discharged at the same time. He also alleged that he understood that he would be credited with presentence time and good time credit on all of the dockets. The respondent, in her return to the amended petition, denied or left the petitioner to his proof as to his claim of a violation of the plea agreement. The respondent, by way of defense, alleged that General Statutes § 18-100d prevents any person convicted of a crime committed on or after October 1, 1994, from receiving statutory good conduct credit and, therefore, that five of the crimes to which the petitioner pleaded guilty were not eligible for such credit.

The petitioner argues that he was denied his right to due process because his reasonable expectation, pursuant to his plea bargain, was not fulfilled. He argues that presentence and good time credit for all his crimes should be the same, whether the crimes were committed before or after October 1, 1994. The court, in assessing the question of whether the petitioner’s plea agreement was violated, determined that the testimony of the prosecuting attorney was more credible than the petitioner’s testimony. The court concluded that the petitioner’s claims that he would be discharged from confinement on the same day for all of the crimes was not credible and also concluded that the plea agreement did not encompass either presentence or good time credits while incarcerated after sentencing.

A plea agreement is much like a contract, and its validity depends on contractual principles that must be evaluated with reference to the requirements of due process. See State v. Rivers, 283 Conn. 713, 724, 931 A.2d 185 (2007); see also State v. Stevens, 278 Conn. 1, 7-8, 895 A.2d 771 (2006). An appellate or habeas court looks to what the parties reasonably understood the terms of the agreement to mean. See State v. Rivers, supra, 726.

In this case, the court found that the state had not made any promise that presentence confinement for all the crimes to which the petitioner had pleaded guilty would receive the same amount of credit or that his incarceration as to each would expire simultaneously. The court specifically noted that the docket sheets of the crimes had different dates and that the state had not made any promise that credits for the sentences imposed after conviction would all be “discharged at the same time as each other.” Specifically, the court determined that there was no evidence of any promise by the state encompassing either presentence confinement credit or good time credit after sentencing. The court particularly relied on the testimony of the petitioner himself, stating that his “testimony might have some credibility if the dates on which he came into the respondent’s custody were identical in all dockets that carry a sixteen year sentence.” The court also noted that only four of his crimes were “good time eligible.”

Transcripts of the plea and sentencing hearings were available to the habeas court and this court. There is no mention in either transcript of credits for presen-tence time or for future good time credits that the petitioner might earn after beginning to serve the agreed on sentences. A transcript of the petitioner’s testimony at the habeas proceeding was available also to this court. He testified that he had no understanding of how presentence or good time credits worked, although he had heard of good time. He was not aware that the state had abolished good time credit for certain crimes. His understanding was that he would get 450 days of credit for his presentence time and that he would be released three or four years earlier than the sixteen years to which he was sentenced. This testimony, even if believed, does not establish that he was promised good time credit.

The transcript of the plea canvass, as a reflection of a plea agreement, was devoid of anything relating to good time credit, leaving the parties’ intent to be determined as a question of fact. See Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, 273 Conn. 724, 738, 873 A.2d 898 (2005). The court’s finding, on the basis of the testimony of the prosecutor and the petitioner, was that the plea agreement did not encompass anything about good time credit. Our standard for review of that factual finding is the familiar clearly erroneous standard. See Herring v. Commissioner of Correction, 103 Conn. App. 431, 435, 930 A.2d 41 (2007). The fact found was based on the credibility of the witnesses, and we, as an appellate court, will not afford it review. See Sanders v. Commissioner of Correction, 83 Conn. App. 543, 550, 851 A.2d 313 (2004), cert. denied, 271 Conn. 914, 859 A.2d 569 (2004). We agree with the court that there was no violation of the plea agreement.

The court determined that five of the crimes to which the petitioner pleaded were not crimes for which he was entitled to any good time credit. See General Statutes § 18-100d. Section 18-100d renders both presentence credit and statutory good time inapplicable to persons sentenced to terms of imprisonment for crimes committed on or after October 1, 1994. Velez v. Commissioner of Correction, 250 Conn. 536, 552, 738 A.2d 604 (1999). Five of the crimes were committed by the petitioner on or after October 1, 1994, and he was not entitled to either type of credit as to them. Because the court concluded that the plea agreement was not violated and that the petitioner was not induced to plead guilty by any promise of the state that all of his crimes would require a discharge on the same date, it did not discuss the appropriate amount of good time credit to which the petitioner was entitled for the four crimes committed before October 1, 1994. In view of the court’s conclusion, with which we agree, we need not discuss it either.

III

The petitioner also argues that he was denied equal protection of the law because he was denied the opportunity to enroll in programs that would allow him to earn good time credits that would reduce the length of his incarceration after sentencing. Specifically, the petitioner asserts that his transfer to an out-of-state facility due to his classification as a security risk group safety threat member (safety threat) and his administrative segregation classification foreclosed the possibility of his being imprisoned in a facility other than Northern Correctional Institution upon his return from out-of-state imprisonment and denied him the opportunity to enroll in programs that potentially would enable him to be reclassified. We disagree.

The petitioner was classified as a safety threat, a prisoner “identified as posing a threat to the facility, staff, or inmates, from 1999-2003. ” Prisoners classified as such are segregated in the Northern Correctional Institution at Somers. The administrative segregation program is a three phase program and is designed so that an inmate can progress through the three phases within one year. In the fall of 1999, the respondent moved 100 administrative segregation phase one inmates to Virginia, including the petitioner, on the basis of their classification. No other classification of prisoners was involved in the move. Given the safety, security and administrative needs of prisons, the purpose of the transfer of administrative segregation phase one inmates was to assist them in adjusting to a general population environment. The petitioner had spent eighteen months in administrative segregation prior to his transfer.

The court found that although the petitioner alleged in his amended petition that the respondent’s disciplinary policy violated his equal protection rights, he failed to prove the allegation, and it was deemed abandoned. Even if the petitioner had presented evidence to support his equal protection claim, it would have failed because a “statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” (Internal quotation marks omitted.) Harris v. Commissioner of Correction, 271 Conn. 808, 834, 860 A.2d 715 (2004). Inmates do not have a constitutionally protected right to a particular classification. Torres v. Stewart, 263 F. Sup. 2d 463, 469 (D. Conn. 2003). Prisoners classified in a certain category are not a suspect class, and therefore no fundamental right is implicated. See Harris v. Commissioner of Correction, supra, 833. Furthermore, all of the prisoners transferred to Virginia were classified as segregation phase one inmates, and it is difficult to understand how the classification denied the petitioner equal protection of the law.

The due process clause itself does not create a liberty interest for a prisoner, although a statutory provision could create an interest in a shortened prison sentence. Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). “Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of a sentence imposed by a court of law.” Id., 485. In order to state a claim of a violation of due process, an inmate must show a protected liberty interest and a deprivation of that interest without being afforded due process of law. A prisoner’s liberty interest to be free from disciplinary segregation is not inherent in the due process clause of the federal constitution. Harris v. Meulemans, 389 F. Sup. 2d 438, 441 (D. Conn. 2005). “Under Connecticut law, the Commissioner of Correction retains discretionary authority to classify prisoners at any security level.” Id.; see General Statutes § 18-81 (discussing respondent’s duties). The respondent, pursuant to General Statutes § 18-7a, has discretion to award or not award the credit allowed in that statute, but there is no statutory right to good time credit. Harris v. Meulemans, supra, 442. A prisoner has no constitutionally protected interest in or to a particular classification. Id. In this case, the petitioner has not shown any deprivation of a constitutional right.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 80-1 provides in relevant part: “In any habeas corpus proceeding where the party desiring to appeal is required by statute to petition the trial court for certification that a question is involved in the decision which ought to be reviewed by the appellate court, the petition for such certification shall be made to the judge who tried the case or, if such judge is unavailable, a judge of the superior court designated by the chief court administrator, within ten days after the case is decided. . .

       The petitioner’s claims do not involve the consecutive one year sentence or the consecutive sentences for contempt.

       The petitioner does not specify the way in which either his habeas court counsel or his counsel at the time of his plea or his sentencing were ineffective, and we, therefore, do not consider this claim.

       It is not disputed that attorney William Collins represented the petitioner at the time of the guilty pleas and that attorney Matthew Collins testified at the habeas proceeding for the respondent.

       General Statutes § 3-125 provides in relevant part: “The Attorney General shall have general supervision over all matters in which the state is an interested party .... He shall appear for . . . all . . . commissioners ... in all suits and other civil proceedings . . . .”
      General Statutes § 51-277 (c) provides: “The division [of Criminal Justice], through the Chief State’s Attorney, shall participate on behalf of the state in all appellate, post-trial and postconviction proceedings arising out of the initiation of any criminal action whether or not the proceedings are denominated civil or criminal for other purposes.”

       General Statutes § 18-100d provides: “Notwithstanding any other provision of the general statutes, any person convicted of a crime committed on or after October 1, 1994, shall be subject to supervision by personnel of the Department of Correction until the expiration of the maximum term or terms for which such person was sentenced.”

       A presentence credit is statutory and, as a general rule, is not constitutionally required. Hammond v. Commissioner of Correction, 259 Conn. 855, 792 A.2d 774 (2002). Before the passage of General Statutes § lOOd, such a credit existed as a legislative lagniappe and is not a fundamental right. Credit for presentence incarceration time is not a right recognized as fundamental. Hammond v. Commissioner of Correction, supra, 881. Nor does it become a fundamental right when it is challenged by way of a writ of habeas corpus. Id., 883. A plea of guilty encompasses a waiver of three basic constitutional rights: jury trial, confrontation and self incrimination; Mainiero v. Liburdi, 214 Conn. 717, 725, 573 A.2d 1207 (1990); and does not involve knowledge of every consequence of such a plea.

       We make certain observations, however. The respondent did not discuss the issue except briefly in a footnote. The petitioner claimed in his brief that cases such as Tyson v. Commissioner of Correction, supra, 261 Conn. 806, and Velez v. Commissioner of Correction, supra, 250 Conn. 536. We note that when there is simultaneous presentence confinement under different docket numbers for different crimes all committed before October 1, 1994, the maximum good time credit is limited to the longest confinement period, with any pretrial good time credit to be used only once. Saintval v. Commissioner of Correction, 94 Conn. App. 283, 287, 893 A.2d 451, cert. denied, 278 Conn. 916, 899 A.2d 621 (2006); King v. Commissioner of Correction, 80 Conn. App. 580, 587, 836 A.2d 466 (2003), cert. denied, 267 Conn. 919, 841 A.2d 1191 (2004). The maximum amount of presentence credit is limited when a prisoner is confined under more than one information and subsequently receives concurrent sentences as to both or all of the informations. See Harris v. Commissioner of Correction, 271 Conn. 808, 860 A.2d 715 (2004); Whitaker v. Commissioner of Correction, 90 Conn. App. 460, 878 A.2d 321, cert. denied, 276 Conn. 918, 888 A.2d 89 (2005). The prisoner is not entitled to presentence confinement credit for each of the separate dockets on which he was held for crimes committed prior to October 1, 1994. Id.

       The court described the petitioner as “not exactly ... a model prisoner.” He testified that he was originally at Gamer Correctional Institution in Newtown until he got into a fight and was sent to Northern Correctional Institution on administrative segregation. His status at the time of the habeas hearing was safety threat. The respondent’s return to the petitioner’s amended petition stated that prior to his transfer to Virginia for temporary incarceration, he had accumulated approximately fifty-five disciplinary reports, that he had received “approximately [twenty] disciplinary reports while in Virginia,” and that since his return to Connecticut, he had “accumulated approximately [thirty-three] disciplinary reports.” The court found that his disciplinary offenses included flagrant disobedience, fighting, causing disruption, threats, destruction of property, possession of contraband, assault, disobeying a direct order and interference with safety and security. These offenses left the petitioner with a good time deficit.


author: HARPER, J.

text:
    VERONICA PELLETIER v. WILLIAM GALSKE III
    (AC 28212)
    McLachlan, Harper and Mihalakos, Js.

      Argued October 19
    officially released December 18, 2007

      Thomas P. Willcutts, for the appellant (plaintiff).

      Christopher L. Brigham, with whom, on the brief, were Barbara A. Frederick and FfionaM. McDonough, for the appellee (defendant).
   Opinion

HARPER, J.

The plaintiff, Veronica Pelletier, appeals from the judgment of the trial court rendered in favor of her former attorney, the defendant, William Galske III, after the court granted the defendant’s motion to strike the plaintiffs complaint. The plaintiff claims that the court improperly found that the complaint failed to state a claim sounding in breach of contract against the defendant. We disagree with the plaintiff and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs claim. The plaintiff instituted this action in a one count complaint filed January 26, 2006. In her complaint, the plaintiff alleged that in May, 2001, she had retained the defendant to represent her in connection with her purchase of a condominium unit. The plaintiff alleged that when the defendant accepted her fee for the purchase of the condominium unit, an attorney-client contract was formed. The plaintiff further alleged that the defendant breached his contractual duties in one or more of the following ways: by failing to advise her that the condominium unit was classified as an affordable housing unit; by failing to advise her that, as an affordable housing unit, the condominium unit would be subject to resale price limitations for a period of twenty years; by failing to have her sign an acknowledgement that the defendant had explained the affordable housing covenants that applied to the condominium unit; and by failing to explain those affordable housing covenants to her.

The plaintiff also alleged that, as a result of the defendant’s breach of his duties under the attorney-client contract, she had expended large sums of money on improvements to the condominium unit and would not be able to recover such sums in a future sale. Finally, the plaintiff alleged that in agreeing to act as her attorney in connection with the closing, the defendant contracted “to deliver a specific result, namely to deliver title to the condominium unit at the closing with no restrictions on potential resale, but failed to do so.”

Thereafter, on April 21, 2006, the defendant filed a motion to strike the plaintiff’s complaint, arguing that the plaintiffs cause of action properly sounded in tort, not contract. The defendant argued further that the plaintiff attempted to bring a breach of contract claim, rather than a tort claim, because she had failed to bring suit prior to the expiration of the three year statute of limitations period applicable to claims for legal malpractice under General Statutes § 52-577. The plaintiff filed an objection to the defendant’s motion to strike, in which she argued that her complaint properly stated a claim for breach of an implied contract with the plaintiff because the defendant had failed to inform her that she was purchasing an affordable housing unit or, in the alternative, to deliver title free from affordable housing restrictions.

On September 11,2006, the court heard oral argument on the defendant’s motion to strike. By order dated September 19, 2006, the court granted the defendant’s motion to strike, providing as follows: “An implied contract to deliver good title to real estate is in essence a negligence claim and is insufficient to sustain a contract claim against an attorney based solely on the contract of engagement. Rapco, Inc. v. Louis, Superior Court, judicial district of Hartford, Docket No. CV-00-0803569S (March 27, 2002) (Hon. Jerry Wagner, judge trial referee) (31 Conn. L. Rptr. 559).” Pursuant to Practice Book § 10-44, the defendant subsequently filed a motion for judgment on October 5, 2006, requesting that judgment enter on the court’s order granting his motion to strike. The court granted the defendant’s motion for judgment. This appeal followed.

We begin by setting forth the applicable standard of review. “Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling ... is plenary.” (Internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 307, 709 A.2d 1089 (1998). “Although ordinarily—indeed, in most cases—in reviewing a motion to strike, the court must take the plaintiffs allegations at face value, that rule is not absolute.” Gazo v. Stamford, 255 Conn. 245, 262, 765 A.2d 505 (2001). When a defendant’s liability to a plaintiff is premised, however, “on principles of tort law . . . the plaintiff may not convert that liability into one sounding in contract merely by talismanically invoking contract language in his complaint;” id.; and consequently a reviewing court may “pierce the pleading veil” to ensure that such is not the case. Id., 263. Thus, in doing so, we look beyond the language used in the complaint to determine the true basis of the claim. Id.

“Whether the plaintiffs cause of action is one for malpractice depends upon the definition of that word and the allegations of the complaint. . . . 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 .... 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.” (Citation omitted; internal quotation marks omitted.) Rosato v. Mascardo, 82 Conn. App. 396, 410-11, 844 A.2d 893 (2004).

Courts have held that tort claims cloaked in contractual language are, as a matter of law, not breach of contract claims. See id., 411-12, citing Barnes v. Schlein, 192 Conn. 732, 735, 473 A.2d 1221 (1984) (complaint sounded in negligence because gravamen of suit was alleged failure by defendant to exercise requisite standard of care); Rumbin v. Baez, 52 Conn. App. 487, 491-92, 727 A.2d 744 (1999) (claim essentially medical malpractice clothed in language of contract because there was no allegation of breach of contractual duty); DiMaggio v. Makover, 13 Conn. App. 321, 323, 536 A.2d 595 (1988) (complaint sounded in malpractice and was absolutely barren of any allegation that defendant breached any contractual duty owed to plaintiff); Shuster v. Buckley, 5 Conn. App. 473, 478, 500 A.2d 240 (1985) (language of complaint sounded in tort, not contract). “Just as [pjutting a constitutional tag on a non-constitutional claim will no more change its essential character than calling a bull a cow will change its gender . . . putting a contract tag on a tort claim will not change its essential character. An action in contract is for the breach of a duty arising out of a contract; an action in tort is for a breach of duty imposed by law.” (Citation omitted; internal quotation marks omitted.) Gazo v. Stamford, supra, 255 Conn. 262.

The court properly concluded that the plaintiffs complaint sounds only in tort and does not state a legally sufficient claim of breach of contract. A fair reading of the complaint reveals that the gravamen of the action was the alleged failure by the defendant to exercise the requisite standard of care in failing to advise the plaintiff that the condominium unit she purchased was an affordable housing unit and, as such, was subject to resale price limitations for a period of twenty years, failing to have her sign an acknowledgement that the defendant had explained the affordable housing covenants that applied to the condominium unit and failing to explain those affordable housing covenants to her. Nothing in the plaintiffs complaint removes her claim from the ambit of malpractice. Notwithstanding that embedded in the language of the plaintiffs claim are the contractual rudiments of promise and breach, “[wjhere the plaintiff alleges that the defendant negligently performed legal services . . . the complaint sounds in negligence, even though he also alleges that he retained him or engaged his services.” Shuster v. Buckley, supra, 5 Conn. App. 478.

As a matter of law, the complaint sets forth a legal malpractice claim. As a malpractice claim, the sole count in the complaint is not governed by the six year statute for contract actions set forth in General Statutes § 52-576 but, rather, was time barred by the three year statute of limitations for tort claims set forth in § 52-577. The court, therefore, properly granted the defendant’s motion to strike the plaintiffs complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       The conduct at issue occurred in May, 2001, and the plaintiff commenced suit approximately four and one-half years later in January, 2006. The plaintiff was time barred by the three year statute of limitations for tort actions. See General Statutes § 52-577 (“action founded upon a tort shall be brought but within three years from the date of the act or omission complained of’). A breach of contract action, however, carries a six year statute of limitations, and the plaintiff would not be time barred from bringing such an action. See General Statutes § 52-576 (a) (“action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues”).

       The plaintiff argues that her complaint sets forth a legally sufficient claim of breach of contract, regardless of whether her professional liability action for breach of contract contains an allegation of a promise for a specific result. The plaintiff reasons that such an allegation of a promise for a specific result is not required under Rosato v. Mascardo, supra, 82 Conn. App. 396. In Rosato, the defendant argued that courts in Connecticut have generally disallowed contract claims in medical malpractice actions when they do not contain a claim for breach of a promise to achieve a particular result. Id., 411. The court reasoned: “We read the cases relied on by the defendant for that proposition differently. In those cases, the courts restricted the contract claims not because the plaintiffs did not plead a failure to achieve a particular result, but because their claims sounded in malpractice and failed to disclose any breach of a contractual duty owed to them by the defendants.” Id., citing Barnes v. Schlein, supra, 192 Conn. 735; Rumbin v. Baez, supra, 52 Conn. App. 487; DiMaggio v. Makover, supra, 13 Conn. App. 321; Shuster v. Buckley, supra, 5 Conn. App. 473. Our holding in the present case is not premised on the existence of a lack of an allegation that a specific result was promised but on the allegations of the plaintiffs complaint generally. Thus, this argument is not persuasive. Although “one may bring against an attorney an action sounding in both negligence and contract . . . one [cannot] bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of contract.” (Citation omitted.) Caffery v. Stillman, 79 Conn. App. 192, 197, 829 A.2d 881 (2003).

       See footnote 1.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. KEVIN EPPS
    (AC 27804)
    Flynn, C. J., and Graendel and Foti, Js.

      Argued September 20
    officially released December 25, 2007

      Darcy McGraw, special public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Maureen Omousky, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Kevin Epps, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (2), and kidnapping in the first degree with the intent to inflict physical injury and with the intent to terrorize in violation of General Statutes § 53a-92 (a) (2) (A) and (C). The jury found the defendant not guilty of attempt to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-49. On June 1, 2005, the defendant was sentenced to a total effective term of thirty-five years incarceration. On appeal, the defendant claims that the court improperly (1) admitted uncharged misconduct evidence and graphically disturbing photographs of the victim’s injuries, (2) deprived the defendant of a fair trial by improperly admitting certain evidence and (3) deprived the defendant of a fair trial by permitting testimony of a “circle of violence” syndrome without any expert testimony. We disagree, and we therefore affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim and the defendant dated on and off for about five years, beginning in 1999, and ending at the time of the incident in question on January 10, 2004. In December, 2003, the victim and the defendant became engaged. Three days prior to the incident in question, the defendant informed the victim that he had tested positive for the sexually transmitted disease, chlamydia. The chlamydia diagnosis sparked several arguments between the victim and the defendant.

The victim’s relationship with the defendant was a “cycle,” in which they fought, she got upset and stayed away from him for a short time but eventually took him back. The victim had had enough of the circular pattern. After learning that the defendant had contracted a sexually transmitted disease, the victim decided that the relationship had to end because she believed the defendant was not being faithful to her. She telephoned the defendant on January 10, 2004, and told him that they needed to talk because their relationship was over. On that day, the defendant met the victim after work at the Stamford train station. The victim wanted to end the relationship with the defendant that night. They stopped at a couple of bars in the vicinity of the train station before the defendant drove them to Rosa Hartman Park in Stamford.

When they arrived at the park, the victim told the defendant that she did not want to marry him and that she did not love him, and, in response, the defendant punched her in the face. The defendant subsequently pulled her into the backseat of the van and attempted to choke her several times. Eventually, the victim sat in the front seat to talk to the defendant in an attempt to calm him down. At that point, she felt her pants become wet. She then looked down and saw a gasoline can and a book of matches in his hands. The defendant then struck a match and set her on fire.

The defendant’s version of events was different. He denied that the chlamydia diagnosis caused any disagreements. According to him, the couple went to the park and started talking and being intimate. He took several telephone calls on his cellular phone while the victim was in the van, and she became jealous that he might have been talking to females during his telephone conversations. At that point, the defendant told her they needed to separate for a little while because she was unnecessarily jealous. Upon hearing this, the victim attacked him, scratching his face and telling him she was going to kill him. The defendant admitted that he hit the victim at least once, though possibly two or three times. Because the victim was attacking him, the defendant decided to get out of the van and to walk away to gather his thoughts. While he was walking around the van, he saw a flash and then he noticed that the victim was on fire.

When the victim got out the passenger door, the defendant ripped her shirt off and rolled her on the ground in an attempt to put the fire out. He then claimed that he put her back in the van and drove her to a hospital. The defendant testified that the victim told him not to tell anyone about what had just happened and to tell everyone that it was just an accident. In contrast, the victim claimed that as soon as she caught on fire, she got out of the van and began to throw dirt on herself to put the fire out. She testified that the defendant did not help her and only stood watching her with his hands in his pockets. The victim then dragged herself to the van, and the defendant drove her to the hospital.

After the victim had been taken into the trauma room at the hospital, an employee of the hospital, Letitia Williams, spoke to the defendant in an attempt to gather information regarding the victim. In speaking with Williams, the defendant referred to the victim as his wife, asking someone to help his wife. When Williams asked for information regarding the victim, the defendant did not provide her correct birth date. He told Williams that the victim had lit a cigarette while he was putting gasoline into his van at a gasoline station and there was an explosion. Williams asked if the victim had any family members, and the defendant stated that she did not. The defendant knew, however, that the victim’s sister lived in Stamford. When Williams asked the defendant if she could have his cellular telephone, he refused to give it to her because he did not want her to give it to the police. Moreover, the defendant never complained to Williams that he had been burned in the incident.

When the police arrived at the hospital, they also spoke to the defendant. The defendant told Officer George Moran of the Stamford police department that his name was Jeffrey Epps, not Kevin Epps. The defendant was evasive regarding any information about the victim, and when asked if the victim had any family in the area, the defendant responded that all of her family was in Panama. Finally, the defendant relayed to the police a story similar, though not identical, to the one he had told Williams regarding how the victim was burned. He told the police that he was preparing to leave a friend’s house when he decided to put more gasoline into the van. He claimed that as he was putting gasoline into the van from the gasoline can he carried in it, the victim exited the vehicle, stood behind him and lit a cigarette. The defendant stated that after putting enough gasoline in the van, he withdrew the can from the tank and upon doing that, some of the gasoline splashed onto the victim and immediately ignited.

The victim was taken to the Westchester Medical Center in Valhalla, New York, because of the severity of her burns. Karen Buckley, a physician who treated the victim there, testified about the victim’s injuries. The victim had sustained severe, disfiguring bums over nearly 30 percent of her body, including her face, eyelids, neck, hands, abdomen and thighs. The pattern of the victim’s bums indicated that the victim was not standing at the time of the fire because the accelerant would have mn down her legs, causing bums down her legs, which did not happen. It appeared that a very large volume of fluid had been spilled or poured on the victim while she was sitting.

Several police officers arrived at the Westchester Medical Center to speak to the victim about the incident. Although she could only nod her head yes or no, the police officers believed that they had gained a clear understanding of what had occurred on the evening of January 10, 2004. As a result of the interview, an arrest warrant was issued, and the defendant was arrested. Additional facts will be set forth as necessary.

I

The defendant raises two evidentiary claims. He claims that the court improperly (1) admitted uncharged misconduct evidence and (2) admitted photographs of the victim’s injuries. “Upon review of a trial court’s decision, we will set aside an evidentiary ruling only when there has been a clear abuse of discretion. . . . [Ejvery 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.” (Citations omitted; internal quotation marks omitted.) State v. Rolon, 257 Conn. 156, 173, 777 A.2d 604 (2001).

A

The defendant claims that the court improperly admitted uncharged misconduct evidence. Specifically, the defendant claims that the admission of the uncharged misconduct evidence was improper for two reasons: (1) it assumed that he and the victim were involved in “syndrome” behaviors without any evidence of the existence or elements of such a “syndrome”; and (2) the court failed to limit the scope of the evidence to prevent undue prejudice to him.

Additional facts are relevant to the defendant’s claim. During the trial, the victim testified about several incidents during which the defendant allegedly assaulted her. First, the defendant caused the victim to crash her motor vehicle into a pole because he was punching her while she was driving. Second, the victim and the defendant were at the home of his cousin when she awoke because the defendant was punching her in the face. Third, when the victim was at the defendant’s house on one occasion, she left the house while holding his motorcycle keys. Because the defendant wanted the keys, he ran out of his house, grabbed her by the legs and flipped her upside down so that she fell down a flight of cement stairs.

Prior to any testimony being given, the defendant objected on the ground that the evidence should not be admitted because it did not pertain to motive, intent, mistake, identity or common plan or scheme—the only grounds on which uncharged misconduct evidence can be admitted. The court overruled the defendant’s objection stating: “The state argues that [the uncharged misconduct] goes to the defendant’s motive and intent on the evening in question, and I agree.” The court also stated that it would give the jury a limiting instruction when the evidence was introduced and again during the final charge. After the state elicited testimony from the victim regarding the first incident, the defendant again objected to the admission of this uncharged misconduct evidence. The defendant objected on the ground that the victim was providing too much detail regarding the prior incidents of misconduct by the defendant. Therefore, he argued, there was a “trial within atrial” being created for each incident of misconduct. Furthermore, the defendant stated that he wanted to limit the amount of detail regarding these incidents. The court ruled, however, that it would give the state latitude with its direct examination of the victim regarding these prior incidents of misconduct. Nevertheless, the court stated that the defendant could object when he believed it was appropriate, and the court would give the jury a limiting instruction at the conclusion of the testimony.

Additionally, the victim, in testifying about her relationship with the defendant, mentioned the word “circle” a handful of times. The defendant never once objected to the use of this term. In arguing as to why the uncharged misconduct evidence should be admitted, the state noted that it had included an expert on its witness list who would be testifying with regard to domestic violence and “the circle of violence.” The prosecutor argued that she had to lay a foundation for the expert testimony and was attempting to do so by questioning the victim about previous alleged assaults by the defendant. The defendant became aware, at the end of the state’s case, that the state was not going to call its expert on domestic violence and the circle of violence, but the defendant never objected to the lack of expert testimony.

1

On appeal, the defendant first argues that the court improperly admitted uncharged misconduct evidence because it was admitted to establish the existence of a “circle of violence syndrome” in the absence of any expert testimony regarding this syndrome. The defendant, however, did not raise this claim at trial. “It is well established that generally this court will not review claims that were not properly preserved in the trial court.” (Internal quotation marks omitted.) State v. Spillane, 69 Conn. App. 336, 341, 793 A.2d 1228 (2002). “Where a defendant fails to seek review of an unpre-served claim under either [State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)] or the plain error doctrine [set forth in Practice Book § 60-5], this court will not examine such a claim.” (Internal quotation marks omitted.) State v. Spillane, supra, 341. In the present case, the defendant did not raise this claim at trial, nor did he request review of the claim under Golding or the plain error doctrine. Therefore, we decline to review this claim.

2

The defendant also argues that the court improperly admitted the -uncharged misconduct evidence because the court failed to limit it to prevent undue prejudice caused by the unrestricted admission of the evidence. “As a general rule, evidence of a defendant’s prior crimes or misconduct is not admissible. . . . We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. . . . [Prior misconduct] evidence may also be used to corroborate crucial prosecution testimony. . . . Moreover, we have held that such evidence may be used to complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings. . . .

“To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis. . . . First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence.” (Internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 396-97, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002).

“Our standard of review on such matters is well established. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) Id., 397.

Our review of the record leads us to conclude that the court did not abuse its discretion in admitting the uncharged misconduct evidence. The court properly held that the evidence was relevant in terms of the defendant’s motive and intent on the evening in question. In addition, the uncharged misconduct evidence was more probative than prejudicial. “We previously have held that evidence of dissimilar acts is less likely to be prejudicial than evidence of similar or identical acts.” (Internal quotation marks omitted.) Id., 398. In Vega, the court held that the prior misconduct at issue included evidence of similar assaults against the victim, but “none of these assaults was on a par with or even similar to the brutality of the incidents that took place [on the night in question].” Id., 398-99. Similarly, in the present case, the uncharged misconduct concerned the defendant’s having assaulted the victim on prior occasions when he punched her, hit her head against a car door and caused her to fall down cement stairs. Those prior assaults, however, were not as brutal as pouring gasoline on the victim and igniting it, causing bums to almost 30 percent of her body. Because the uncharged misconduct evidence was relevant to both motive and intent and was more probative than prejudicial, we conclude that the court did not abuse its discretion in admitting the evidence.

B

The defendant also claims that the court improperly admitted photographs of the victim’s injuries. Specifically, he argues that they were prejudicial because of the number of photographs admitted, sixteen, and because they graphically depicted the victim’s injuries. During the trial, the state offered into evidence several photographs through the testimony of one of the victim’s physicians. The defendant objected to the introduction of these photographs on the ground that the sheer number of photographs along with the graphic nature of the photographs would serve to inflame the jury, thereby causing him prejudice. The court overruled the defendant’s objection, finding that the probative value of the photographs outweighed any prejudicial effect. We agree.

We begin our analysis by setting forth the applicable legal principles. “The principles governing the admission of potentially inflammatory photographic evidence are clear. . . . [W]e adhere to the general rule that photographs which have a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry are not rendered inadmissible simply because they may be characterized as gruesome. . . . When, however, an initial determination is made by the trial court that such photographs may have the tendency to prejudice or inflame the jury, the admissibility of such evidence is dependent upon the trial court’s determination as to whether their value as evidence outweighs their possible prejudicial effect. . . . Since the trial court exercises its broad discretion in such circumstances, its determination will not be disturbed on appeal unless a clear abuse of that discretion is shown.” (Internal quotation marks omitted.) State v. Howard, 88 Conn. App. 404, 427, 870 A.2d 8, cert. denied, 275 Conn. 917, 883 A.2d 1250 (2005).

In the present case, the court did not abuse its discretion in admitting the photographs of the victim’s injuries into evidence. First, the court found that the photographs were relevant because they would help the juiy to decide whether the victim accidentally had caused the injuries to herself. The defendant, however, did not object to the relevance of the photographs. The defendant objected that the photographs were more prejudicial than probative. The court held that the photographs, while graphic, were more probative than prejudicial. We agree.

The photographs were probative of the intent to disfigure, which was one of the elements of the assault charge against the defendant. The photographs depicted the victim’s injuries. Moreover, although the victim and physicians could testify about the nature of the wounds, photographs could depict the extent and painfulness of the victim’s injuries. The seriousness of the injuries would be relevant in proving the defendant’s intent to disfigure or even his intent to kill, which was an element of the charge of attempt to commit murder. See General Statutes §§ 53a-54a (a) and 53a-49. This court has held that “[pjotentially inflammatory photographs may be admitted into evidence if the court, in its discretion, determines that the probative value of the photographs outweighs any potential prejudice. . . . [E]ven photographs depicting gruesome scenes that may prejudice the jury are admissible, so long as, in the court’s discretion, they are more probative than prejudicial.” (Internal quotation marks omitted.) State v. Pearson, 97 Conn. App. 414, 425, 904 A.2d 1259, cert. denied, 280 Conn. 934, 909 A.2d 963 (2006).

Additionally, the defendant objected to the admission of the photographs on the ground that there were too many of them. The photographs, however, were not cumulative. They depicted several different places on the victim’s body where she was burned and different stages of the healing, namely, when the bums first occurred and after the wounds had scarred. Furthermore, the court gave a limiting instruction to the jury prior to the introduction of the photographs by the state. The court cautioned the jury not to allow the photographs to instill feelings of sympathy for the victim or prejudice against the defendant. See State v. Howard, supra, 88 Conn. App. 427-28 (court did not abuse discretion in admitting into evidence sixteen autopsy photographs of victim). In the present case, the photographs admitted into evidence, while gruesome and numerous, were relevant and more probative than prejudicial. We therefore conclude that the court did not abuse its discretion in admitting the photographs into evidence.

II

The defendant next claims that the court’s abuse of discretion regarding evidentiary admissions deprived him of a fair trial. The defendant claims that the court improperly admitted uncharged misconduct evidence, “syndrome” evidence and graphic photographs of the victim’s injuries. As a result, the defendant claims, the trial lacked fundamental fairness.

The defendant did not preserve this due process claim at trial for appellate review. Therefore, he is seeking review under Golding. In State v. Golding, supra, 213 Conn. 233, the court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id., 239-40. At the same time, “[t]he defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right. . . .

“[Ujnpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed. . . . We previously have stated that the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” (Citations omitted; internal quotation marks omitted.) State v. Gerald W., 103 Conn. App. 784, 798, 931 A.2d 383, cert. denied, 284 Conn. 933, 935 A.2d 152 (2007).

We previously concluded in part I that the court properly admitted evidence of the defendant’s prior uncharged misconduct and of the photographs of the victim’s injuries. Furthermore, we conclude that the defendant’s claim regarding the “syndrome” evidence is not of constitutional magnitude. The defendant argues, in essence, that the repeated use of the word “circle” introduced a type of “syndrome” evidence into the trial without the benefit of expert testimony on the subject. We disagree. The victim used the word “circle” several times during her testimony to describe the cyclical nature of her relationship with the defendant, in that they would argue, she would stay away from him for a period of time and they would eventually get back together. The state did not present any evidence of a “syndrome.” Furthermore, the defendant was given the opportunity to cross-examine the victim after she testified regarding the cyclical nature of her relationship with him. Therefore, this claim is purely an evidentiary claim, not a constitutional claim. The fact that the court allowed the victim to describe her relationship as a “circle” did not implicate any constitutional rights of the defendant. As such, we decline to review the defendant’s unpreserved evidentiary claim. Additionally, we previously concluded that the court properly admitted evidence of the defendant’s prior uncharged misconduct and the photographs of the victim’s injuries. Not one of these evidentiary claims rises to the level of a constitutional claim. As such, three evidentiary claims aggregated do not rise to the level of a deprivation of the defendant’s constitutional rights. See State v. Robinson, 227 Conn. 711, 747, 631 A.2d 288 (1993).

Ill

Finally, the defendant claims that the court deprived him of a fair trial by permitting testimony of a “circle of violence” syndrome without any expert testimony. Specifically, he argues that the court deprived him of his sixth amendment right to cross-examine and to confront witnesses against him and to present a defense. We decline to review this claim. “It is well established that generally this court will not review claims that were not properly preserved in the trial court. ... A defendant may prevail on a claim of constitutional error not preserved at trial, however, if the defendant satisfies the four part standard set forth in State v. Golding [supra, 213 Conn. 239-40].” (Internal quotation marks omitted.) State v. Spillane, supra, 69 Conn. App. 341. “Where a defendant fails to seek review of an unpre-served claim under either Golding or the plain error doctrine, this court will not examine such a claim.” (Internal quotation marks omitted.) Id. In the present case, the defendant neither preserved the claim at trial, nor requested review of the claim under Golding or the plain error doctrine. Therefore, we decline to review the claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually ... or (C) terrorize him or a third person . . . .”
      The defendant was charged under two alternate theories of committing kidnapping. The jury received a unanimity instruction and returned a general verdict.

       We decline to identify the victim or others through whom the victim may be identified in the interest of protecting the privacy interests of the victim.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (2) with intent to disfigure another person seriously and permanently, orto destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person . . .


author: PER CURIAM.

text:
    NICHOLAS J. BYRNE, JR. v. MARK R. SPURLING ET AL.
    (AC 27953)
    Bishop, Haiper and Peters, Js.
    Argued October 15
    officially released December 25, 2007

      Nicholas J. Byrne, Jr., pro se, the appellant (plaintiff).

      Mark R. Spurling, pro se, the appellee (named defendant).
   Opinion

PER CURIAM.

Pursuant to General Statutes § 45a-187, an appeal from a Probate Court order “by persons of the age of majority who are present . . . shall be taken within thirty days . . . .” Although a Probate Court “has the discretion and power to allow an appeal after the expiration of the time limitation . . . [it] is not required to do so.” VanBuskirk v. Knierim, 169 Conn. 382, 387, 362 A.2d 1334 (1975). The issue in this case is whether a disappointed litigant who has not received permission to file a late appeal may obtain appellate review of a disputed order by belatedly challenging the immediate reviewability of the order that is at issue. In the absence of an adequate record, we affirm the trial court’s dismissal of the appeal.

In a motion for appeal from probate dated October 4, 2004, the plaintiff, Nicholas J. Byrne, Jr., challenged the validity of an order of the Probate Court for the district of Ellington that included an attorney’s fee for the defendant, Mark R. Spurling. The defendant moved for a dismissal of the appeal as untimely. After finding that the plaintiff had not obtained permission from the Probate Court to allow a late appeal, the trial court granted the defendant’s motion. The plaintiff has appealed.

The underlying facts are undisputed. After a May 21, 2003 hearing that the plaintiff attended, the Probate Court, Hon. O. James Purnell, approved a final accounting that included an attorney’s fee of $7151.25 for services rendered by the defendant for Monica Banta, who had been appointed administratrix of the estate of the decedent, Nicholas J. Byrne, Sr. Banta’s appointment resulted from the Probate Court’s resolution of a will contest in her favor. The final accounting was approved at a time when the plaintiff had filed an appeal in the Superior Court for review of the issues raised by the will contest.

On November 20, 2003, contrary to the ruling of the Probate Court, the Superior Court, Hon. Lawrence C. Klaczak, judge trial referee, upheld the validity of a will executed by the decedent that disinherited Banta. In response, the Probate Court removed Banta as admin-istratrix of the estate.

On February 19, 2004, relying on Judge Klaczak’s judgment, the plaintiff filed a motion in the Probate Court in which he asked that corut to disallow certain expenses and counsel fees that had been incurred by Banta prior to her replacement as administratrix of the estate. Judge Purnell denied this motion on the ground that the “attorney fees were approved as part of the final account on May 21, 2003. The appeal period has passed.” The plaintiffs subsequent application for a writ of mandamus in the Superior Court to compel Judge Purnell to revisit his earlier ruling was dismissed by that court, Scholl, J., on the ground that Judge Purnell had discretion to decline to authorize a late appeal.

The plaintiff then filed the present appeal from probate in the Superior Court. In that court, the plaintiff unsuccessfully argued that an order by acting probate judge, Hon. John W. Cooney, had given him permission to file a late appeal with respect to the accounting that included the defendant’s counsel fees. In his appeal to this court, the plaintiff has not challenged the validity of the trial court’s interpretation of Judge Cooney’s order. Indeed, he has not asked us to review any ruling made by the trial court.

Instead, the plaintiff has briefed two new issues in this appeal. He maintains that his appeal from the May 21, 2003 order (1) is timely because it was not immediately appealable due to his pending appeal to the Superior Court challenging the Probate Court’s resolution of the will contest between himself and Banta and (2) should be sustained because the order was improper, litigation costs relating to an unsuccessful attack on a will not being chargeable against an estate.

The plaintiff has advanced no reason why this court should consider the merits of arguments that he failed to present to the trial court. See Practice Book § 60-5. He does not claim that his constitutional rights have been impaired and has not endeavored to make a showing of plain error. See Reiner, Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92, 103 n.10, 897 A.2d 58 (2006); State v. Skidd, 104 Conn. App. 46, 50 n.5, 932 A.2d 416 (2007).

Indeed, an examination of the plaintiffs belated arguments demonstrates the need for factual findings that the record does not contain. Implicit in both of the plaintiffs claims challenging the immediate appealability of the order is his assumption that the award of attorney’s fees to the defendant represented payment for services relating to the will contest rather than for services relating to the orderly winding up of the decedent’s estate. We do not know that to be the case. This court cannot make factual findings. See Miller v. Westport, 268 Conn. 207, 221, 842 A.2d 558 (2004); Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 96 Conn. App. 326, 335, 901 A.2d 49 (2006).

The judgment is affirmed.

       The present appeal concerns only the trial court’s disposition of the issues relating to Spurling’s legal fees. We, therefore, refer to Spurling as the defendant in this opinion.

       At oral argument in this court, the defendant stated that, although he performed some further services for the estate, he never submitted a further request for fees.

       Banta issued a check to the defendant in the amount approved by the court during the pendency of the appeal to the Superior Court. The defendant cashed the check after the publication of the court’s decision.

       This history is described in the opinion of Scholl, J., in Byrne v. Purnell, Superior Court, judicial district of Tolland, Docket No. CV-04-4000685-S (April 27, 2005) (39 Conn. L. Rptr. 223).

       The plaintiff has not appealed from the judgment rendered by Judge Scholl.

       Judge Cooney’s order granted the plaintiffs motion for a late filing to appeal several disputed Probate Court orders by Judge Purnell dated September 8, 2004, and May 6, 2004. The trial court found that neither of those orders addressed the merits of the contested order about attorney’s fees. It found instead that “[wjhile acting Probate Judge John Cooney approved the late filing of an appeal of the decrees of May 6, 2004, and September 8, 2004, the only mention of the Spurling bill was in the decree re: the motion for review dated September 8, 2004, which noted that the bill had been approved on May 21, 2003.”