author: FLYNN, J.

text:
    MARC EVANS v. CHRISTINE M. TAYLOR
    (AC 19341)
    Laveiy, C. J., and Flynn and Dupont, Js.

      Submitted on briefs September 12
    officially released November 20, 2001

      Christine M. Taylor, pro se, the appellant (defendant), filed a brief.

      Patricia C. Reath, for the appellee (plaintiff), filed a brief.
   Opinion

FLYNN, J.

The defendant, Christine M. Taylor, appeals from the judgment of the trial court dissolving her marriage to the plaintiff, Marc Evans. On appeal, the defendant claims that the court improperly (1) calculated child support payments, (2) exceeded its authority by ignoring the trial testimony of an expert witness, thereby adversely affecting the defendant’s claim of intolerable cruelty, (3) refused to grant a dissolution on the grounds of intolerable cruelty, thereby affecting the basis on which property was distributed, and (4) failed to incorporate accumulated and unpaid pendente lite alimony in its final order of dissolution. We reverse in part the judgment of the trial court on the basis of the last issue only.

The following facts and procedural history are necessary for a proper resolution of the defendant’s appeal. The parties were married in 1988. They have one child who was three years old at the time of the dissolution. The plaintiff commenced this dissolution action in 1995, claiming a breakdown in the marital relationship. The defendant filed a counterclaim for dissolution on the grounds of irretrievable breakdown and intolerable cruelty. Orders for pendente lite support were entered on February 14, 1997, by the court, Moran, J. Pursuant to those orders, the plaintiff was required to make monthly payments of $2800 to the defendant as unallocated alimony and child support. Payments were due on the fourteenth day of each month. The trial commenced in April, 1997, and proceeded, on various dates, until its completion in July, 1997. In June, 1997, the plaintiff filed a motion to modify the pendente lite orders. The court, Hon. Margaret C. Driscoll, judge trial referee, declined to hear that motion. Although the amount of the payments that had accrued under the February 14, 1997 pendente lite orders as of June, 1997, totaled $14,000, the plaintiff had made payments totaling only $5600. On September 4, 1997, and again on September 15, 1997, the defendant filed motions for contempt. Those motions were neither granted nor denied.

On November 25, 1997, the court rendered judgment dissolving the marriage of the parties after concluding that the marriage had broken down irretrievably. In its memorandum of decision, the court ordered the plaintiff to pay the sum of $113 per week, beginning December 2, 1997, for the support of the minor child. It did not, however, address in its memorandum of decision the issue of the unpaid arrearage of pendente lite support or cite the plaintiff for contempt. On December 5, 1997, the defendant filed a motion for reargument. That motion was denied.

I

The defendant first claims that the court improperly calculated its order for child support. Specifically, the defendant claims that the support order was improper because the court had little credible evidence of the plaintiffs income from which it could properly make a determination as to the appropriate amount of child support. We disagree.

Before addressing the merits of the defendant’s claims, we first set out the well settled standard of review applicable to a court’s decision regarding financial orders. “We review financial awards in dissolution actions under an abuse of discretion standard. ... In order 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.” (Internal quotation marks omitted.) Ludgin v. McGowan, 64 Conn. App. 355, 357, 780 A.2d 198 (2001). With those principles in mind, we turn to the defendant’s claim that the court improperly calculated child support.

“It is clear that a trial court must base . . . child support orders on the available net income of the parties.” Febbroriello v. Febbroriello, 21 Conn. App. 200, 202, 572 A.2d 1032 (1990). To aid in its determination of the appropriate amount of child support, the court had before it the following evidence: The testimony of the parties, the testimony of an expert who the defendant had hired to evaluate the plaintiffs business, the financial affidavits of both parties and the joint tax returns filed by the parties for the years 1993 through 1995, inclusive. Although the court noted that it was unclear whether the earnings that were reported by the plaintiff were his actual earnings, it also noted that the defendant had income from various investments that she did not include on her financial affidavit. Further, the court found that pursuant to the financial affidavit of the plaintiff, his “expenses” were, for the most part, all being paid, despite the fact that the total of those “expenses” exceeded the amount he had listed as “income,” which led the court to conclude that the plaintiffs income was at least equal to that of his “expenses.” In light of that situation, the court calculated the net income of each party using the same method; it substituted the amount listed as “expenses” on each party’s financial affidavit for gross income and deducted the applicable payroll taxes from that amount to arrive at each party’s net income.

On the basis of the information the court had before it and in light of the fact that neither party was completely forthcoming in reporting his or her income, we cannot say that the court was unreasonable in employing the methodology that it did to arrive at a net income figure for each party. Accordingly, we conclude that the court did not abuse its discretion in calculating the amount of child support to be paid by the plaintiff.

II

The defendant next claims that the court improperly rejected her claim that the plaintiff subjected her to intolerable cruelty. Specifically, the defendant claims that the court exceeded its authority in disregarding her physician’s expert testimony that the defendant’s illness was caused by the abuse that she was subjected to by the plaintiff. She claims that the court could not properly have disregarded such testimony because the plaintiff failed to present any evidence to contradict or rebut that testimony. The defendant further claims that the court exceeded its authority in determining that her hospitalization did not stem from the plaintiffs cruel treatment of her, but rather that it stemmed from an ongoing depression that may have been aggravated by the treatment that the defendant received from the plaintiff because that determination could not have been gleaned from any of the testimony that was presented at trial. Again, we disagree.

“The acceptance or rejection of the opinions of expert witnesses is a matter peculiarly within the province of the trier of fact and its determinations will be accorded great deference by this court.” (Internal quotation marks omitted.) Carter v. Carter, 8 Conn. App. 356, 358, 512 A.2d 979 (1986). “In its consideration of the testimony of an expert witness, the trial court might weigh, as it sees fit, the expert’s expertise, his opportunity to observe the defendant and to form an opinion, and his thoroughness. It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them. . . .

“It is well settled that the trier of fact can disbelieve any or all of the evidence proffered . . . including expert testimony, and can construe such evidence in a manner different from the parties’ assertions.” (Internal quotation marks omitted.) State v. Alvarado, 62 Conn. App. 102, 112, 773 A.2d 958, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001). We conclude that the credibility and weight to be given to the testimony of the defendant’s expert was solely within the province of the court. Further, “[d]espite the defendant’s contention to the contrary, the trial court is not required to accept uncontradicted expert testimony.” (Internal quotation marks omitted.) Simard v. Commissioner of Motor Vehicles, 62 Conn. App. 690, 696, 772 A.2d 1137 (2001).

We conclude that the court was not required to credit the testimony of the defendant’s physician simply because the plaintiff offered no evidence to the contrary. Rather, the court was entitled to credit that testimony in whole, in part or not at all.

Further, although the defendant claims that there is no basis in the record for the court’s determination that the defendant’s hospitalization was due to her ongoing depression, the record reveals that the defendant had a history of treatment for depression, occurring prior to her marriage to the plaintiff. Because we conclude that the court’s finding that the defendant’s illness was not caused by the plaintiffs treatment is supported by facts in the record and is not clearly erroneous, we will not disturb that determination.

Ill

The defendant next claims that the court improperly failed to grant the dissolution on the ground of intolerable cruelty. Specifically, the defendant claims that the court seemed to imply that intolerable cruelty may only be established as a ground for divorce if the party making such a claim permanently departs from the marital home. Although we agree that intolerable cruelty can be proved without a permanent departure from the marital home, the court’s conclusion that it was not proven on the facts of this case must stand.

“[intolerable cruelty has a subjective as well as an objective significance. There must not only be proof of acts of cruelty . . . but proof that in their cumulative effect . . . they are intolerable in the sense of rendering the continuance of the marital relation unbearable by him [or her].” (Internal quotation marks omitted.) Garrison v. Garrison, 190 Conn. 173, 178-79, 460 A.2d 945 (1983).

“Whether intolerable cruelty exists or not in a particular case is ordinarily a conclusion of fact for the trier to draw.” Richards v. Richards, 153 Conn. 407, 409, 216 A.2d 822 (1966). “Our standard of review regarding factual findings of a trial court is limited. Such findings are binding on this court unless they are clearly erroneous in light of the evidence, the pleadings and the record as a whole.” Murray v. Murray, 65 Conn. App. 90, 92-93, 781 A.2d 511, cert. denied, 258 Conn. 931, 783 A.2d 1029 (2001).

In its memorandum of decision, the court noted, on the basis of the testimony of the parties, that the marriage of the parties was troubled from the start and that each party believed that he or she was mistreated by the other. It also noted that although the defendant claimed that the plaintiffs treatment of her over the course of their seven year marriage was intolerable, she tolerated it by not moving from the marital home until her husband filed an action for dissolution, despite the fact that she had the financial means to do so. Finally, the court noted that some of the difficulties in what was a stormy marriage, arose from the verbal abuse by the defendant toward the plaintiff. On the basis of those observations, the court stated that the defendant failed to prove her claim of intolerable cruelty.

On the basis of the record, we conclude that the court could reasonably have found that the defendant had failed to establish her claim of intolerable cruelty, and therefore it was not clearly erroneous for the court to reject intolerable cruelty as a ground for dissolution and instead grant the dissolution of the marriage on the ground of irretrievable breakdown.

IV

Finally, the defendant claims that the court improperly failed to incorporate the pendente lite support arrearage in its final judgment of dissolution. We agree.

“[L]ike unpaid installments of an alimony award entered at the time of dissolution, accrued and unpaid installments of alimony pendente lite are, in effect, debts which have become vested rights of property which the court cannot take away.” (Internal quotation marks omitted.) Papa v. Papa, 55 Conn. App. 47, 53, 737 A.2d 953 (1999). “[W]here a final decree of divorce has been rendered, any orders regarding pendente lite alimony are merged in the final decree and thereafter, no independent action for contempt based on the temporary alimony order can be properly brought. Review may be made, however, of that part of a final order which fails to . . . incorporate an accumulated arrearage of pendente lite alimony.” (Emphasis added.) Tobey v. Tobey, 165 Conn. 742, 745-46, 345 A.2d 21 (1974). “Indeed, it would be error for a trial court ... to fail to incorporate an accumulated arrearage of pendente lite alimony in a final order granting dissolution.” (Internal quotation marks omitted.) Papa v. Papa, supra, 55.

The defendant’s claim in this case is controlled by our decision in Elliott v. Elliott, 14 Conn. App. 541, 541 A.2d 905 (1988). In Elliott, we held that the trial court’s order, entered at the time of dissolution, forgiving a previously determined arrearage of pendente lite alimony, constituted a retroactive modification of the pendente lite order. Id., 545. We held that such a modification, when made at the time of dissolution, is impermissible pursuant to General Statutes § 46b-86, which permits retroactive modification of alimony and support orders only during the predissolution period and only pursuant to a pending motion to modify. Id.; see also Milbauer v. Milbauer, 54 Conn. App. 304, 311-12, 733 A.2d 907 (1999). We explained in Elliott that “the purpose of alimony pendente lite is to provide a party with support during the pendency of the dissolution action. . . . Allowing a court to modify an award of alimony pendente lite retroactively at the time the dissolution is granted would frustrate that purpose because it would encourage spouses to delay making their alimony payments until the time of dissolution, hoping that the order for alimony pendente lite would be forgiven or changed at that time.” (Citation omitted.) Elliott v. Elliott, supra, 545.

Here, although the court did not expressly forgive the arrearage of pendente lite support, it failed to include the arrearage in its judgment dissolving the marriage. The plaintiff claims that the court’s failure to include the arrearage in its final order was reasonable because the defendant did not include an entry for any accrued arrearage on her financial affidavit and did not include a request for a finding of an arrearage in her claims for relief. Those documents were dated months before the memorandum of decision was issued. The defendant’s financial affidavit was dated April 15,1997, and her claims for relief and amended claims for relief were dated March 3, 1997, and July 31, 1997, respectively. The defendant’s September, 1997 motions for contempt were filed before the court’s November 25, 1997 memorandum of decision and were brought for the express purpose of enforcing the pendente lite orders.

We conclude that failure to include an arrearage in a final order of dissolution has the same effect on the party entitled to the pendente lite arrearage as it would have had if the court had expressly modified or forgiven the pendente lite order at the time of dissolution; it strips that party of a vested property right and constitutes an impermissible retroactive modification of the pendente lite orders in violation of § 46b-86. Even if it is assumed that the defendant was not stripped of a vested property right because she could again return to court and seek a judgment in the amount of the arrearage in an independent separate action, judicial economy concerns should prevail. It was improper for the court to omit the pendente lite arrearage in its final judgment of dissolution even though the defendant may not have specifically requested that in her claims for relief.

The plaintiff next claims that the defendant has failed to file an adequate record for review in that the record is inadequate to quantify the amount of the arrearage with any specificity. The plaintiff further claims that because the parties stipulated, through counsel, that any modification of the pendente lite order would be effective retroactively to June 24, 1997, the date that the plaintiff filed his motion to modify support, the stipulation agreement would have had some effect on the amount of the claimed arrearage. We do not agree.

The plaintiff does not dispute that he was required to make monthly payments of $2800 to the defendant pursuant to the February 14,1997 pendente lite support order. Further, although the plaintiff filed a motion for a modification of pendente lite support, which, if it had been granted before the judgment of dissolution, would have related back to the date that it was filed, that motion never was granted. Accordingly, the February 14,1997 support order remained in effect until the date that judgment was rendered dissolving the marriage. See Tobey v. Tobey, supra, 165 Conn. 745. The plaintiff admitted that he had paid a total of only $5600 to the defendant. The record is, therefore, adequate to determine the amount of the arrearage; the defendant is entitled to the pendente lite payments that accrued prior to the date of the judgment of dissolution, which in this case was November 25, 1997, less the $5600, and any additional payments arising from a wage execution that was signed by the court after the dissolution judgment.

Finally, the plaintiff claims that the defendant failed to provide an adequate record for review because she failed to request an articulation of the reasons that the court did not include the arrearage in its final order dissolving the marriage. That claim also is without merit. Regardless of the reasons the court may have had for not including the arrearage in the final order of dissolution, “the effect was that the pendente lite order was [retroactively] modified [in violation of § 46b-86].” Elliott v. Elliott, supra, 14 Conn. App. 546. The arrearage was, therefore, improperly omitted.

The judgment is reversed insofar as it fails to include the arrearage of pendente lite support and the case is remanded for further proceedings to determine the amount of pendente lite support arrearage to be included in the judgment. In all other respects the judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff filed three financial affidavits, which showed a significant drop in income within a relatively short period of time. The first financial affidavit, dated March, 1997, listed gross income as $697 per week. The second, dated April, 1997, listed gross income as $348.84 per week. The third, dated June, 1997, listed gross income as $125 per week.

       During the trial, the defendant bought another house and moved out of the marital home.

       General Statutes § 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 apending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party . . .

       The prohibition against retroactive modification of alimony or support orders applies with equal force to pendente lite orders. Elliott v. Elliott, supra, 14 Conn. App. 545.

       We note that the defendant’s September 15, 1997 motion for contempt specifies the accrued arrearage as $16,800. We also note that on December 23, 1997, the court, Hon. Margaret C. Driscoll, judge trial referee, signed a wage execution that lists the total amount of arrearage at $22,513 as of December 8, 1997, which, if broken down, is the equivalent of eight months of pendente lite support and one month of postdissolution child support.


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JEFFREY WALKER
    (AC 19699)
    Mihalakos, Dranginis and Daly, Js.
    Argued September 11
    officially released November 27, 2001

      Alan E. Dillon, special public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Robert J. O'Brien, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l) and one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). On appeal, the defendant claims that the trial court improperly restricted his right to present final argument by precluding him from commenting about a missing witness. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 2, 1998, the victim bought and shared drugs with a female friend at the friend’s apartment. The defendant, whom the victim had met once before, also was present. After all of the drugs were consumed, the victim’s friend gave $20 to the defendant to purchase more drugs from a nearby dealer. The victim left the apartment with the defendant.

Instead of returning to that apartment after buying drugs, the defendant and the victim went to the third floor attic of the home of the defendant’s mother, where the defendant lived. The defendant and the victim entered the attic to use the drugs that they had purchased.

A short time later, the defendant and the victim heard her friend shouting from the street outside of the home. The defendant left the attic several times, supposedly to meet with her. When the defendant returned to the attic, he pulled out a knife, grabbed the victim’s neck and told her that he would slit her throat if she made any noise. Still holding the knife against the victim’s neck, the defendant proceeded to push the victim onto his bed and forced her to engage in sexual intercourse. The defendant then left the attic and locked the door behind him. When the defendant returned, he again wielded the knife, and forced the victim to perform fellatio and to have sexual intercourse with him. A few hours later, the defendant released the victim.

The defendant subsequently was arrested, and a jury trial ensued. During the trial, the victim testified that soon after the attack, she informed her boyfriend, Bradley Fullwood, that the defendant had forced her to perform fellatio. She admitted that she did not describe to her boyfriend all of the acts forced on her by the defendant. In the presentation of his defense, the defendant called as a witness his stepbrother, Joseph Duarte, Jr., who resided with the defendant. Duarte testified that some time after he saw the victim leave the home, a man, who identified himself only as the victim’s boyfriend, visited the house to speak with the defendant.

The defendant was convicted of two counts of sexual assault in the first degree in violation of § 53a-70 (a) (1) and one count of unlawful restraint in the first degree in violation of § 53a-95 (a). This appeal followed.

The defendant claims that in light of State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000), the court improperly restricted his right to present final argument by precluding him from commenting on the state’s failure to call Fullwood as a witness. The defendant, therefore, argues that he is entitled to a new trial. We are not persuaded.

At the conclusion of the trial, the defendant made a written request for a Secondino charge on the basis of the state’s failure to call Fullwood as a witness. In his request to charge, the defendant stated that “[i]n this case, the state did not call Bradley Fullwood as a witness. . . . The 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 by that witness would be unfavorable to the party’s case.” The court denied the defendant’s request to charge, concluding that it appeared “to the court that probably Mr. Fullwood would be a, if a witness at all, would be a constancy witness. So, the court will not give that charge, and the court will also restrict [the defendant], in your argument, not to refer to Mr. Fullwood.” The defendant responded in pertinent part: “I think he’s more than just another constancy witness, and I think that the fact that he is not produced as a witness is important and— and that the jury ought to be entitled to draw a permissible inference, and that’s all we’re asking for ... a permissible inference.”

The defendant’s claim arises out of the decision of our Supreme Court in State v. Malave, supra, 250 Conn. 722. Subsequent to the trial court’s decision in the present case but prior to the filing of the present appeal, our Supreme Court decided Malave. The Malave decision applies retroactively to this case. State v. Quinones, 56 Conn. App. 529, 533, 745 A.2d 191 (2000).

In Malave, our Supreme Court abandoned the Secondino rule in criminal cases. See footnote 4. Although the court abandoned the Secondino rule, it explicitly provided that it did not intend to “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.” State v. Malave, supra, 250 Conn. 739. Comments in closing argument that do “not directly exhort the jury to draw an adverse inference by virtue of the witness’ absence” do not necessarily fall under the ambit of Seeondino, and, accordingly, are not forbidden by Malave. Id. The court further stated that “[o]f course, the trial court retains wide latitude to permit or preclude such a comment, and may, in its discretion, allow a party to adduce additional evidence relative to the missing witness issue.” Id., 740; see State v. Joyce, 243 Conn. 282, 305-306, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998).

The wide latitude given to trial courts pursuant to Malave reflects the general discretion afforded to trial courts in limiting the scope of final argument. “[T]he scope of final argument lies within the sound discretion of the court . . . subject to appropriate constitutional limitations. ... It is within the discretion of the trial court to limit the scope of final argument to prevent comment on facts that are not properly in evidence, to prevent the jury from considering matters in the realm of speculation and to prevent the jury from being influenced by improper matter that might prejudice its deliberations. . . . While we are sensitive to the discretion of the trial court in limiting argument to the actual issues of the case, tight control over argument is undesirable when counsel is precluded from raising a significant issue.” (Internal quotation marks omitted.) State v. Joyce, supra, 243 Conn. 305-306. Accordingly, we review the trial court’s action here under an abuse of discretion standard. See State v. Banks, 59 Conn. App. 112, 129, 755 A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904 (2000).

In contending that the court improperly precluded him from commenting on Fullwood’s absence, the defendant refers to the language that the court used in denying his Secondino request. Specifically, the defendant bases his Malave claim on the court’s statement that “the court will not give that charge, and the court will also restrict [the defendant], in your argument, not to refer to Mr. Fullwood.” We conclude that the defendant’s claim is without merit.

At trial, the defendant’s request to charge on Full-wood’s absence solely implicated Secondino principles. He did not seek to comment on the absence of Fullwood in a general manner, nor did he express an intention to mention Fullwood, during closing argument, for the purpose of exposing a weakness in the state’s case. Rather, the defendant explicitly sought a jury instruction that would allow the juiy to draw an adverse inference from the absence of the witness. Even after the court denied the defendant’s request for a Secondino instruction, the defendant reiterated that “I think he’s more than just another constancy witness . . . and that the jury ought to be entitled to draw a permissible inference, and that’s all we’re asking for ... a permissible inference.”

As the defendant failed to proffer any other reason regarding the necessity of raising the issue of Full-wood’s absence, it is clear that the court’s statement, which the defendant now challenges, was made within the context of the defendant’s Secondino request and in response to that request. At trial, the defendant did not make a request implicating Malave principles. Given that the defendant sought to raise the issue of Full-wood’s absence solely for the purposes of drawing an adverse inference, we cannot conclude that the court abused its discretion in precluding the defendant from referring to that missing witness during closing argument.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “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 a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”

       Duarte testified that he had never before encountered the person who visited the defendant and that this person did not identify himself as Fullwood.

         Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960), overruled in part, State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000).


author: PER CURIAM.

text:
    MICHAEL IOVIENO v. COMMISSIONER OF CORRECTION
    (AC 19794)
    Foti, Dranginis and Flynn, Js.
    Argued October 23
    officially released November 27, 2001

      Todd A. Edgington, assistant public defender, with whom was Sandra J. Crowell, deputy assistant public defender, for the appellant (petitioner).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Michael Iovieno, appeals following the denial by the habeas court of his petition for certification to appeal from the dismissal of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) denied his petition for certification to appeal, (2) concluded that he had not been deprived of his right to effective assistance of counsel under the sixth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut, when his defense counsel failed, inter alia, to file a motion to suppress certain evidence that police had seized from his person and residence, and (3) declined to review his claim that the seizure of that evidence had violated his rights under the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut. We disagree and, accordingly, dismiss his appeal.

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).

“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.) Reddick v. Commissioner of Correction, 51 Conn. App. 474, 477, 722 A.2d 286 (1999).

For the following reasons, we conclude that the issue of whether the petitioner was deprived of the effective assistance of counsel is not debatable among jurists of reason and that the questions involved in resolving that issue do not warrant significant review. The petitioner raises two claims concerning his counsel’s performance. First, the petitioner claims that his counsel improperly failed to attempt to discredit evidence presented by the state indicating that a canine unit had tracked him from the scene of the crime. Specifically, the petitioner claims that his counsel should have called as a witness Robert Sisson, an investigator with the office of the public defender. The habeas court found, however, that “Sisson was a reluctant witness at best” and that counsel had been “afraid that if he put Sisson on the stand, he might not cooperate.” The record reveals that there is little uncertainty that counsel, for strategic and tactical reasons, elected not to call Sisson as a witness. Recognizing that there 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; see Goodrum v. Commissioner of Correction, 63 Conn. App. 297, 315, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001); we conclude that the petitioner has not demonstrated that the habeas court’s determination that his counsel did not perform deficiently when he elected not to call Sisson as a witness was not debatable among jurists of reason.

Second, the petitioner claims that his defense counsel improperly failed to file a motion to suppress certain evidence that police had seized from his residence and person, namely, a sweatshirt and hair samples, including pubic hair. Other evidence presented by the state, however, which included a fingeiprint lifted from the crime scene that matched the petitioner’s, as well as damaging eyewitness testimony, was compelling. As the habeas court aptly noted, the record reveals that, even if the sweatshirt and hair samples had been suppressed, there was not a reasonable probability that the result of the proceeding would have been different.

The petitioner’s last claim is that the habeas court improperly declined to review his claim that the seizure of the sweatshirt and hair samples had violated his rights under the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution. We conclude that the claims that the habeas court declined to review were subsumed by the petitioner’s claim that his counsel, in failing to file a motion to suppress the hairs and sweatshirt, had provided ineffective assistance. A habeas court is not required to address separately a constitutional claim that has been subsumed by a claim of ineffective assistance of counsel. Cf. Rivera v. Commissioner of Correction, 61 Conn. App. 825, 833-34, 767 A.2d 790 (habeas court need not separately address due process claims subsumed by claims of ineffective assistance of counsel), cert. denied, 256 Conn. 903, 772 A.2d 596 (2001). The habeas court in the present case concluded that there was not a reasonable probability that the result of the proceedings would have been different if the petitioner’s hair samples and sweatshirt had been suppressed. That conclusion necessarily disposed of the petitioner’s state and federal constitutional claims. See id.

In sum, the habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       Specifically, the petitioner claims that his constitutional claims are reviewable under the cause and prejudice test set forth in Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). We need not address whether Wainwright permits review in this case because we conclude that those claims were subsumed in the petitioner’s ineffective assistance of counsel claim, which was reviewed by the habeas court. See Rivera v. Commissioner of Correction, 61 Conn. App. 825, 833 n.4, 767 A.2d 790, cert. denied, 256 Conn. 903, 772 A.2d 596 (2001).


author: LANDAU, J.

text:
    CONSTANTINE MACRICOSTAS v. JEROME P. KOVACS
    (AC 21333)
    Foti, Landau and O’Connell, Js.
    Argued September 14
    officially released November 27, 2001

      Jerome P. Kovacs, pro se, for the appellant (defendant).

      Peter E. Gillespie, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendant, Jerome P. Kovacs, appeals from the judgment rendered in favor of the plaintiff, Constantine Macricostas, on her complaint and on the defendant’s counterclaim pursuant to the trial court’s granting of the plaintiffs motion for summary judgment. The defendant claims that the court improperly concluded that there were no genuine issues of material fact. We affirm the judgment of the trial court.

The appeal arises out of an action to quiet title to real property. The plaintiff became the owner of certain parcels of land in Newtown and Brookfield as the successful bidder at a foreclosure sale held on July 31, 1999. Before the court approved the sale, the defendant submitted to the plaintiff a one page offer to purchase the land and a $5000 check, representing 1 percent of the purchase price. The parties entered into a binder agreement subject to the negotiation of a contract. Through their respective counsel, the parties attempted to negotiate a contract, but were unable to do so. On October 20,1999, the plaintiffs counsel informed counsel for the defendant that the plaintiff considered the matter closed and that he was entertaining other offers to buy the land. The plaintiff negotiated a contract of sale with a third party, but they were unable to consummate the transaction because the defendant had encumbered the titles to the various parcels by filing his offer to purchase on the land records in Newtown and Brookfield.

To clear the titles, the plaintiff commenced the present quiet title action in November, 1999. The defendant answered the complaint, and alleged a counterclaim seeking specific performance and damages. The plaintiff asserted three special defenses to the counterclaim. In July, 2000, the plaintiff filed a motion for summary judgment along with his affidavit and supporting documents. The defendant submitted an affidavit in opposition to the motion for summary judgment. On October 2, 2000, following oral argument, the court granted the plaintiffs motion for summary judgment on the complaint and the counterclaim. The defendant appealed to this court.

The plaintiff filed a motion for articulation asking the court to articulate a number of issues related to the relief it intended to grant when deciding the plaintiffs summary judgment motion. The motion for articulation did not seek to elucidate the factual or legal basis for the court’s conclusion that no genuine issues of material fact existed as to why there was no contract between the parties. The court granted the motion for articulation and filed a memorandum of decision addressing each of the issues the plaintiff raised.

“The standards governing our review of a trial court’s decision on a motion for summary judgment are clear. 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. See Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991); Trotta v. Branford, 26 Conn. App. 407, 409, 601 A.2d 1036 (1992). While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment; see D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); the 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. . . . Bassin v. Stamford, 26 Conn. App. 534, 537, 602 A.2d 1044 (1992). In deciding amotion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). . . . Cortes v. Cotton, 31 Conn. App. 569, 572-73, 626 A.2d 1306 (1993).” (Internal quotation marks omitted.) Rosario v. Hasak, 50 Conn. App. 632, 636-37, 718 A.2d 505 (1998).

We are mindful that the defendant has represented himself in the trial court and before us. “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the mies of practice liberally in favor of the pro se party. Rosato v. Rosato, 53 Conn. App. 387, 390, 731 A.2d 323 (1999). Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law. . . . Zanoni v. Hudon, 42 Conn. App. 70, 77, 678 A.2d 12 (1996).” (Internal quotation marks omitted.) Strobel v. Strobel, 64 Conn. App. 614, 617-18, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001).

“The duty to provide this court with a record adequate for review rests with the appellant. ... It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § [60-5] . . . . It is not the function of this court to find facts. . . . Our role is . . . to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative. . . . We have, on occasion, reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the trial court’s findings. . . . Where the transcript does not reveal the basis of the court’s factual conclusion, we will not review the appellant’s claims.” (Citations omitted; internal quotation marks omitted.) Strobel v. Strobel, supra, 64 Conn. App. 621.

We have reviewed the transcript, filed on appeal, of the oral argument before the trial court and can discern no factual or legal basis stated by the court for its decision. We therefore decline to review the defendant’s appeal because the record is inadequate.

The judgment is affirmed.

In this opinion the other judges concurred.

       When it granted the plaintiffs motion for summary judgment, the court wrote on the order: “The affidavits and exhibits thereto clearly indicate that there is no genuine issue as to any material fact. There was never a ‘contract’ between the parties for the purchase and sale of the disputed real estate.”

       The plaintiff asked the court to articulate the following issues: (1) whether the court rendered judgment in favor of the plaintiff on the complaint and counterclaim, (2) whether the court concluded that the defendant has no right, title or interest in the land and (3) whether the court intended to award the plaintiff (a) costs, (b) attorney’s fees or (c) any other relief.


author: O’CONNELL, J.

text:
    JOHN MAHONEY v. BILL MANN TREE SERVICE, INC., ET AL.
    (AC 21165)
    Foti, Mihalakos and O’Connell, Js.
    Argued September 13
    officially released November 27, 2001

      Laurence V. Parnoff, for the appellant (plaintiff).

      Harry Hirsch, for the appellee (named defendant).
   Opinion

O’CONNELL, J.

The plaintiff appeals from the decision of the workers’ compensation review board (board) affirming the finding and the dismissal of the plaintiffs claim by the workers’ compensation commissioner (commissioner). The plaintiff claims that the commissioner improperly (1) failed to find admitted facts regarding compensability, (2) limited the scope of the formal hearing decision and (3) failed to allow the introduction of a medical report into evidence. We affirm the board’s decision.

The following facts and procedural history are relevant to our resolution of this appeal. On April 19, 1993, the plaintiff, an employee of the named defendant Bill Mann Tree Service, Inc., sustained injuries that gave rise to a workers’ compensation claim. Following his injury, the plaintiff was treated by Frank J. Forte, a chiropractor. At the defendant’s request, the plaintiff was examined on May 16, 1994, by L. Ronald Homza, a physician specializing in physical medicine and rehabilitation. On March 23, 1995, after formal hearings, Commissioner John A. Arcudi rendered a finding and award in which he found a 5 percent permanent partial disability of the plaintiffs cervical spine on the basis of Homza’s medical report. The commissioner also found that the plaintiff had not proven that Forte’s treatment was for conditions causally related to his injury.

The plaintiff appealed to the board, claiming that Homza’s report had not been admitted into evidence and, therefore, there was no basis for a finding of any permanent partial disability. On October 4, 1996, the board agreed that Homza’s report had not been introduced into evidence and remanded the case for further proceedings. Commissioner Leonard S. Paoletta heard the matter on remand, and issued a finding and dismissal on July 29, 1999. The plaintiff appealed from that decision to the board. On August 10, 2000, the board affirmed Commissioner Paoletta’s finding and dismissal, and the plaintiff brought this appeal.

Before addressing the merits of the plaintiffs claims, we first set forth our standard of review for workers’ compensation appeals. “The commissioner is the sole trier of fact and [t]he 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. . . . The review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retry the facts. ... On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s findings and award. . . . Our scope of review of [the] actions of the [board] is [similarly] . . . limited. . . . [However,] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46, 52-53, 782 A.2d 141, cert. denied, 258 Conn. 930, 783 A.2d 1029 (2001).

First, the plaintiff claims that Commissioner Paoletta improperly failed to find uncontested or admitted facts regarding compensability. Specifically, the plaintiff argues that Commissioner Arcudi found that there was a compensable injury and, on remand, Commissioner Paoletta had only Forte’s report from which to make his determination of a percentage of disability. We do not agree.

Commissioner Arcudi based his finding of a 5 percent permanent partial disability on Homza’s report. The board and Commissioner Paoletta determined that the report had not been admitted into evidence and, therefore, Commissioner Arcudi’s reliance on it was improper. Furthermore, Commissioner Arcudi had properly refused to rely on Forte’s report because Forte’s treatment was not causally related to the injury. Accordingly, there was no finding remaining from Arcudi’s report that Paoletta was required to follow.

The plaintiff next claims that Commissioner Paoletta improperly limited the scope of his formal hearing decision. This claim has no merit.

Commissioner Paoletta, in his finding and dismissal, stated the issue on remand as follows: “Whether Dr. Homza, who served as an independent medical examiner, establishes in his deposition sufficient corroboration of his medical report with respect to permanent partial disability of the [plaintiffs] cervical spine.” In its memorandum of decision, the board stated: “[The plaintiff] suggests that the trier improperly limited the scope of the issues before him in dismissing the instant claim. When this board issued its remand order, it was our expectation that the trial commissioner would review the record as it existed at the time of the original finding and award. We presumed that he would consider (a) whether the circumstances warranted the admission of Dr. Homza’s report into evidence and then (b) whether he found any of the evidence persuasive enough to establish the existence of a permanent partial impairment to the cervical spine.”

On the basis of our review of the record, we conclude that the commissioner properly limited the scope of the issues in conformity with the board’s remand.

Finally, the plaintiff claims that the commissioner improperly failed to allow the introduction into evidence of Homza’s report. We are not persuaded. The record is replete with references to the fact that Homza’s report was never admitted into evidence despite ample opportunity to do so. The report was not offered into evidence in the first hearing or on remand. In the hearing on remand, the plaintiff had Homza’s deposition admitted as an exhibit, but, as the board noted in its memorandum of decision, the deposition contained no specific assignment of a permanent partial impairment percentage.

We agree with the board that because Homza’s report remained outside of the record and his deposition contained no permanency rating, the commissioner properly decided that the plaintiff had not satisfied his burden of proof.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The second injury fund also was named as a defendant. Only Bill Mann Tree Service, Inc., filed a brief in this court. We therefore refer to Bill Mann Tree Service, Inc., as the defendant.


text:
    HOUSING AUTHORITY OF THE TOWN OF EAST HARTFORD v. MAYRA MORALES
    (AC 21321)
    Lavery, C. J., and Flynn and Dupont, Js.
    Submitted on briefs September 12
    officially released November 27, 2001

      Ralph J. Alexander filed a brief for the appellant (plaintiff).
   Opinion

PER CURIAM.

The plaintiff in this summary process action, the housing authority of the town of East Hartford, appeals from the trial court’s judgment of possession. The plaintiff claims that the court improperly ordered (1) a stay of execution of the judgment, and (2) use and occupancy payments in an improper amount. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. In April, 1998, the parties entered into a lease agreement whereby the defendant, Mayra Morales, leased from the plaintiff a unit at one of the plaintiffs public housing complexes in East Hartford. The complex is a section eight housing project and is subject to federal regulation. The lease agreement provided for monthly rental payments that could be periodically adjusted through a recertification procedure governed by a regulatory scheme.

In June, 2000, the defendant failed to pay her rent. On or about June 13,2000, the plaintiff served the defendant with notice to quit possession of the unit by June 27, 2000. The defendant failed to quit possession, and on July 12, 2000, the plaintiff instituted summary process proceedings against her. The defendant admitted all of the allegations in the plaintiffs complaint and did not put forth any defenses. After a short trial on October 16, 2000, the court found for the plaintiff and rendered a judgment of possession. The court ordered a stay of execution to November 15, 2000, and ordered the defendant to remit a monthly use and occupancy payment of $72 by October 25, 2000, and to contact the plaintiff to recertify the monthly rental payment by October 20, 2000.

The plaintiff first claims that the court improperly ordered the stay of execution because it did not follow the procedure set forth in General Statutes § 47a-37 and because the circumstances did not warrant a stay. We decline to review those claims because they have been improperly presented for resolution on appeal.

Pursuant to Practice Book § 61-14, “[t]he sole remedy of any party desiring the court to review an order concerning a stay of execution shall be by motion for review under Section 66-6. . . .” “Issues regarding a stay of execution cannot be raised on direct appeal.” (Internal quotation marks omitted.) Santoro v. Santoro, 33 Conn. App. 839, 841, 639 A.2d 1044 (1994). Practice Book § 66-6 requires that “[m]otions for review ... be filed within ten days from the issuance of notice of the order sought to be reviewed. . . .” Because the plaintiff did not file a motion for review, it is precluded from challenging the court’s stay order.

The plaintiff also claims that the court improperly ordered the defendant to remit a use and occupancy payment for the stay period in the amount of $72 per month. The plaintiff argues that the court ordered an arbitrary amount rather than $518, the amount requested by the plaintiff.

General Statutes § 47a-26b provides in relevant part that the court in a summary process action shall order “payments for use and occupancy in an amount equal to the last agreed-upon rent or, in the absence of a prior agreed-upon rent, in an amount equal to the fair rental value of the premises during the pendency of such action accruing from the date of such order. . . .’’In determining the amount of the use and occupancy payment, therefore, the court looked to the amounts previously agreed on by the parties. “Whether and in what terms parties have undertaken a contractual commitment are questions of fact, the determination of which by the trial court may be overturned on appeal only if the trial court’s determinations are clearly erroneous.” Hoye v. DeWolfe Co., 61 Conn. App. 558, 561, 764 A.2d 1269 (2001).

At trial, the only evidence submitted on that matter was a “transaction history” showing the various amounts at which the defendant’s rental payments had been set since the inception of the lease agreement. The court noted that for the majority of the rental period, the payments remained fairly consistent, in the range of $25 to $72 monthly. Shortly before her default, the defendant had secured temporary employment and, on the basis of that fact, her rent was scheduled to be increased to $251. At the time of default, the defendant was again unemployed.

The plaintiff argued to the court that, pursuant to the federal regulations governing section eight housing, when the defendant did not contact the plaintiff for a required recertification of her monthly rental payment, the plaintiff was authorized to increase her rental payment unilaterally to an amount considered to be the fair rental value for the unit. The plaintiff argued further that the court was obligated to honor that figure for purposes of determining the use and occupancy payment pursuant to § 47a-26b. We disagree.

The plaintiff did not provide the court with any of the regulations governing rental payment determination in section eight housing or with any specific explanation of how those regulations were applied to arrive at the proposed rental figure of $518. Furthermore, the plaintiff did not offer any evidence to show that the detailed procedural and notice requirements outlined in the regulations had been satisfied to obtain a rental payment that was adjusted properly. Given the paucity of proof in that regard, we cannot say that the court’s decision to set the use and occupancy payment at $72, an amount that previously had been agreed on by the parties as monthly rent, was clearly erroneous.

The judgment is affirmed.

       Because the defendant failed to file an appellate brief or to otherwise defend the appeal with proper diligence, on April 25, 2001, we ordered that the appeal be considered on the basis of the plaintiffs brief and the record only. See Pac v. Altham, 49 Conn. App. 503, 506-507, 714 A.2d 716 (1998); see also Practice Book § 85-1.

       Section eight of the National Housing Act, 42 U.S.C. § 1437f, provides rental subsidies for low income persons.


author: FOTI, J.

text:
    ROSARIO WILSON v. OFFICE OF ADULT PROBATION
    (AC 20804)
    Foti, Landau and Dranginis, Js.

      Submitted on briefs September 12
    officially released November 27, 2001

      Michael Boyle filed a brief for the appellant (petitioner).

      Scott J. Murphy, state’s attorney, James M. Ralls, supervisory assistant state’s attorney, and Louis Luba, Jr., assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

FOTI, J.

The petitioner, Rosario Wilson, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly concluded that the trial court’s canvass substantially complied with Practice Book § 39-19 and thus rendered the petitioner’s guilty plea voluntarily and knowingly entered. The petitioner had pleaded guilty to the offense of sale of narcotics as an accessory in violation of General Statutes §§ 53a-8 and 21a-277 (a). The petitioner was sentenced to three years in prison, execution suspended, with three years probation with conditions imposed and a $10,000 fine. The petitioner was placed under the supervision of the office of adult probation pursuant to General Statutes § 53a-29 (c). We affirm the judgment of the habeas court.

The petitioner has raised, in the present appeal, a constitutional claim that he did not bring in a direct appeal from the judgment of conviction. “Generally, [b]ecause habeas corpus proceedings are not an additional forum for asserting claims that should properly be raised at trial or in a direct appeal, a petitioner must meet the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), for determining the reviewability of habeas claims that were not properly pursued on direct appeal.

. . . Unless the petitioners can satisfy that standard, they are not entitled to review of their claims on the merits.” (Citations omitted; internal quotation marks omitted.) Milner v. Commissioner of Correction, 63 Conn. App. 726, 731, 779 A.2d 156 (2001).

Although “the petitioner has the burden of proving cause and prejudice . . . that burden does not arise until after the respondent raises the claim of procedural default in its return.” (Citation omitted.) Id., 734. Because the respondent failed to plead the defense of procedural default in its return as mandated by Practice Book § 23-30 (b), we will address the merits of the petitioner’s claim. See Milner v. Commissioner of Correction, supra, 63 Conn. App. 734.

“The conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here 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. . . . In re Jonathan M., 255 Conn. 208, 217, 764 A.2d 739 (2001).” (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 65 Conn. App. 172, 175-76, 782 A.2d 201 (2001).

“The United States Supreme Court has held that for the acceptance of a guilty plea to comport with due process, the plea must be voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).” State v. Carter, 243 Conn. 392, 397, 703 A.2d 763 (1997). “We are bound by our Supreme Court’s decision in [State v. Badgett, 200 Conn. 412, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986)], which requires us to focus our inquiiy on whether the federal constitutional principles of [Boykin v. Alabama, supra, 243] were satisfied rather than on meticulous compliance with the provisions of the Practice Book. . . . Boykin requires that before accepting a defendant’s plea, a trial court must inform him of three core constitutional rights: His right to be free of compulsory self-incrimination, and his rights to a jury trial and to confront his accusers. . . . State v. Williams, 60 Conn. App. 575, 581, 760 A.2d 948, cert. denied, 255 Conn. 922, 763 A.2d 1043 (2000).” (Internal quotation marks omitted.) State v. Silva, 65 Conn. App. 234, 241, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001).

“[T]he determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances [and] the plea may satisfy constitutional requirements even in the absence of literal compliance with the prophylactic safeguards of [Practice Book §§ 39-19 and 39-20]. . . . State v. Johnson, 253 Conn. 1, 44, 751 A.2d 298 (2000).” (Internal quotation marks omitted.) State v. Silva, supra, 65 Conn. App. 241-42.

In this case, the trial court informed the petitioner: “When you plead guilty, you give up your right to a trial by judge or by jury. You give up your right to make the state prove you guilty beyond a reasonable doubt. You give up your right to present a defense if, in fact, you wanted to do so. And, finally, you give up your right to remain silent. Do you want to give up those rights or do you want a trial?” The petitioner responded, “I want to give up those rights.” The petitioner argues that this colloquy failed to inform him of his right to confront his accusers and therefore rendered his plea involuntary and unknowing. We disagree.

Our Supreme Court has held that specific words are not required to inform the defendant of his right against compulsory self-incrimination. State v. Badgett, supra, 200 Conn. 420. Rather, the reviewing court’s focus is directed at “all of the relevant circumstances” surrounding the canvass to determine whether the “substance” of the defendants’ rights are “sufficiently conveyed” by the canvassing court. State v. Domian, 235 Conn. 679, 687, 668 A.2d 1333 (1996).” State v. Carter, supra, 243 Conn. 399. A guilty plea will not be invalidated simply because of the court’s failure to enumerate specifically each right waived by the defendant where the record, considered as a whole, affirmatively shows that the plea was entered knowingly and voluntarily. See, e.g., United States v. Colston, 936 F.2d 312, 318 (7th Cir.) (considering plea canvass as whole, court’s failure to specifically inform defendant of right to confront accusers or cross-examine witnesses did not render plea involuntary or unknowing), cert. denied, 502 U.S. 951, 112 S. Ct. 403, 116 L. Ed. 2d 352 (1991); United States v. Henry, 113 F.3d 37, 42 (5th Cir. 1997) (same).

We are satisfied that the constitutional requirement has been met in the present case. The petitioner’s responses to the court’s canvass, the participation of his attorney during the canvass, and the court’s reminder to the petitioner that he had the right to a trial before a judge or a jury and the right to present a defense if he wanted to do so lead to the conclusion that he was sufficiently aware of the consequences of and alternatives to his guilty plea. Although the words “right to confront one’s accusers” were not used in the canvass, the record supports the conclusion that the petitioner knew that he had an alternative to pleading guilty and that this alternative permitted him to challenge the state’s factual allegations through a trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 39-19 provides in relevant part: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he . . . fully understands . . .
      “(5) . . . that he . . . has the right ... to confront and cross-examine witnesses against him . . . .”

       General Statutes § 53a-29 (c) provides in relevant part: “When the court imposes a sentence of conditional discharge the defendant shall be released with respect to the conviction for which the sentence is imposed but shall be subject, during the period of such conditional discharge, to such conditions as the court may determine. . . . When a person is sentenced to a period of probation, he shall pay to the court a fee of two hundred dollars and shall be placed under the supervision of the Office of Adult Probation.”


text:
    ANNA MARIA MAZZELLA v. WILLIAM MAZZELLA
    (AC 21711)
    Dranginis, Flynn and O’Connell, Js.
    Submitted on briefs November 1
    officially released November 27, 2001

      William Mazzella, pro se, the appellant (defendant), filed a brief.

      Vincent N. Amendola, Jr., and Denise M. Rioux filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this action for the dissolution of marriage, the defendant, William Mazzella, has appealed from the judgment of the trial court denying his motion to open and modify the judgment of dissolution. We affirm the judgment of the trial court.

“Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural . . . law.” (Internal quotation marks omitted.) Zanoni v. Hudon, 42 Conn. App. 70, 77, 678 A.2d 12 (1996). “[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” (Citation omitted; internal quotation marks omitted.) New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 100, 709 A.2d 14 (1998). “Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” Mullen & Mahon, Inc. v. Mobilmed Support Services, LLC, 62 Conn. App. 1, 10, 773 A.2d 952 (2001).

The judgment is affirmed.


text:
    AMBA REALTY CORPORATION v. KYLE J. KOCHISS ET AL.
    (AC 21317)
    Sehaller, Mihalakos and O’Connell, Js.
    Submitted on briefs September 12
    officially released November 27, 2001

      James M. Nugent filed a brief for the appellant (named defendant).

      Michele D. Sensale filed a brief for the appellee (substitute plaintiff EMC Mortgage Corporation).
   Opinion

O’CONNELL, J.

The named defendant, Kyle J. Kochiss, appeals from the judgment of foreclosure rendered by the trial court. On appeal, the defendant claims that the court improperly (1) granted a motion for default against her, (2) rendered judgment of nonsuit in favor of the plaintiff on her counterclaim and (3) rendered a judgment of foreclosure by sale. We affirm the judgment of the trial court.

The plaintiff commenced this foreclosure action in 1997. The defendant appeared pro se and filed an answer, special defenses and a counterclaim for actual damages, pain, suffering and emotional distress. Counsel subsequently appeared for the defendant, but did not amend the defendant’s pleadings on file. The matter was scheduled to commence trial on July 19, 2000, before an attorney trial referee. The plaintiff noticed the defendant’s deposition and requested that she produce certain documents. The defendant did not appear for her deposition. On July 19, 2000, the defendant also did not appear for trial. Because the plaintiff wanted to file a number of motions, the attorney trial referee referred the matter back to the court.

In court, the plaintiff filed, inter alia, a motion to default the defendant for failure to appear for her deposition and a motion for a nonsuit on the defendant’s counterclaim. The court, Hon. Edward F. Stodolink, judge trial referee, granted both motions. Thereafter the court, Rush, J., rendered a judgment of foreclosure by sale against the defendant. This appeal followed.

I

The defendant claims that the court abused its discretion by granting the plaintiffs motion for default for the defendant’s failure to appear for her deposition. We are not persuaded.

“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. ... It goes without saying that the term abuse of discretion . . . means that the ruling appears to have been made on untenable grounds. . . . In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Therefore, the question is not whether any one of us, had we been sitting as the trial judge, would have exercised our discretion differently. Our role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives.” (Citation omitted; internal quotation marks omitted.) Hartford v. Pan Pacific Development (Connecticut), Inc., 61 Conn. App. 481, 487, 764 A.2d 1273, cert. denied, 256 Conn. 913, 772 A.2d 1126 (2001).

“Practice Book § [13-14] authorizes the trial court to grant a wide range of relief, including the relief sought . . . for a party’s failure to appear and testify at a duly noticed deposition. The determination of whether to enter sanctions pursuant to [Practice Book § 13-14] and, if so, what sanction or sanctions to impose, is a matter within the sound discretion of the trial court. Rullo v. General Motors Corp., 208 Conn. 74, 78, 543 A.2d 279 (1988). In reviewing a claim that this discretion has been abused the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . . [T]he ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 163-64, 645 A.2d 505 (1994).

The entire record before us on this claim is a copy of the plaintiffs motion for default against the defendant. The motion for default requested “that a default enter against the defendant ... for her failure to appear at a deposition, which was scheduled for July 7, 2000, at 3 p.m. at the office of [plaintiffs counsel]. The defendant did not file a [motion for] a protective order, a petition in bankruptcy, a motion for continuance or any pleading regarding her nonappearance at the deposition. Counsel for the plaintiff received a telephone call [from the defendant’s counsel, who stated] that his client . . . would not attend the deposition and would not attend the trial.” The motion also claimed that the defendant was asked to produce documents at her deposition but had not produced them.

The defendant does not dispute the plaintiffs claim that she did not appear for her deposition and that she was not present when Judge Stodolink heard oral argument on the motion for default. The plaintiffs motion is the extent of the record we have of the proceedings before Judge Stodolink. The appellant is responsible for providing this court with an adequate record. Practice Book § 61-10. The defendant failed to provide a transcript of the proceeding, and we are unaware of what evidence, if any, and arguments of law Judge Stodolink may have heard. See Hartford v. Pan Pacific Development (Connecticut), Inc., supra, 61 Conn. App. 489-90. We therefore cannot conclude that Judge Stodolink abused his discretion by granting the plaintiffs motion for default.

II

The defendant also claims that the court improperly rendered a judgment of nonsuit in favor of the plaintiff on the counterclaim. In her brief, the defendant failed to cite any law in support of her claim or to provide any legal analysis beyond the mere assertion of her claim. We therefore deem the claim abandoned. See Fitzgerald v. Fitzgerald, 16 Conn. App. 548, 554, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988).

III

The defendant’s last claim is that the court, Rush, J., improperly rendered the judgment of foreclosure by sale. The basis of the defendant’s claim is that because the default and judgment of nonsuit were improper, the court therefore should not have rendered a judgment of foreclosure. Because we have concluded that the default and nonsuit were proper, there is no basis for the defendant’s third claim.

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

In this opinion the other judges concurred.

       Nicholas E. Owen II was also a defendant in this action, but the plaintiff withdrew the action against him prior to trial. Owen was in possession of the premises, but did not own the premises and had no obligation under the note or mortgage. We therefore refer in this opinion to Koehiss as the defendant.

       At various times, the subject note and mortgage were owned by Amba Realty Corporation, Lafayette American Bank and Trust Company, and EMC Mortgage Corporation. On appeal, the plaintiff in interest is EMC Mortgage Corporation.

       Practice Book § 13-14 provides in relevant part: “(a) If any party has failed to answer interrogatories ... or has failed to respond to requests for production ... or has failed to appear and testily at a deposition duly noticed pursuant to this chapter . . . the judicial authority may, on motion, malee such order as the ends of justice require.
      “(b) Such orders may include the following:
      “(1) The entry of a nonsuit or default against the party failing to comply .. • .”

       In her brief to this court, the defendant relies heavily on Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 230 Conn. 148, to support her argument that Judge Stodolink abused his discretion. In that case, our Supreme Court made reference to the record of the proceedings before the trial court. Id., 164. The defendant asks us to distinguish Associated Investment Co. Ltd. Partnership from the facts here. We are unable to do so because the defendant did not provide an adequate record for our review.


text:
    STATE OF CONNECTICUT v. ANA ARROYO
    (AC 20372)
    Schaller, Flynn and O’Connell, Js.
    Argued September 17
    officially released November 27, 2001

      M. Donald Cardwell, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rachel M. Baird, former assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, J.

The defendant appeals from the judgment of the trial court denying her petition for a new trial on the ground of newly discovered evidence. We dismiss the appeal.

The following facts and procedural history are relevant to our disposition of this appeal. The defendant was convicted on November 20, 1997, following a jury trial, of attempt to commit assault in the first degree as an accessory in violation of General Statutes § § 53a-8, 53a-49 (a) (2) and 53a-59 (a) (1) and assault in the second degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-60 (a). On November 24,1997, the defendant filed a motion for a new trial. Two years later, on November 24, 1999, the court denied the motion. On the day of sentencing, December 14, 1999, the defendant filed a petition for a new trial on the ground of newly discovered evidence. The court denied the petition and sentenced the defendant to five years in the custody of the commissioner of correction. The defendant appeals from the court’s denial of her petition for a new trial.

As a threshold matter, we address the issue of whether the defendant’s petition for a new trial was proceduraily defective. We conclude that the petition was improperly brought and, therefore, it is dismissed for lack of jurisdiction.

This is a classic case demonstrating the distinction between a motion for a new trial pursuant to Practice Book § 42-53, and a petition for a new trial on the ground of newly discovered evidence pursuant to General Statutes § 52-270 and Practice Book § 42-55. Our decision in State v. Servello, 14 Conn. App. 88, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988), is dispositive. In Servello, we stated: “A petition for a new trial is properly instituted by a writ and complaint served on the adverse party; although such an action is collateral to the action in which the new trial is sought, it is by its nature a distinct proceeding. . . . We are presented, then, with the question of whether the defendant’s failure to bring a petition for a new trial in a separate action deprived the trial court of subject matter jurisdiction to rule on the petition. The differences between a motion for a new trial and a petition for a new trial are matters of substance, not simply matters of form. . . . The defendant must bring a petition under [Practice Book § 42-55 and General Statutes § 52-270] [in a separate proceeding instituted by writ and complaint served on the adverse party] if he wishes to seek a new trial based on newly discovered evidence. . . . Accordingly, the trial court should have dismissed the defendant’s petition for a new trial because it was improperly brought, and we do not review the trial court’s denial of that petition.” (Citations omitted; internal quotation marks omitted.) State v. Servello, supra, 101-102.

In this case, the petition was filed under the same criminal docket number as the underlying case rather than being instituted by writ and complaint as a separate civil action. In accordance with Servello, we conclude that the court should have dismissed the petition, and we do not review the trial court’s denial of that petition.

Furthermore, even if we were to determine that the petition was properly brought, the defendant failed to request permission to appeal pursuant to General Statutes § 54-95 (a). The legislature intended the statutory certification requirement to discourage frivolous appeals by requiring that a judge review the decision for the limited purpose of determining whether an appealable issue exists. Seebeck v. State, 246 Conn. 514, 531, 717 A.2d 1161 (1998). Because the defendant failed to comply with § 54-95 (a), this court would lack jurisdiction to consider the petition.

The appeal is dismissed.

In this opinion the other judges concurred.

       The reason for the two year delay is not clear from the record. It appears, however, (hat for at least part of this period, the defendant may not have been available in this jurisdiction for sentencing.

       Practice Book § 42-53 (a) provides in relevant part: “Upon motion of the defendant, the judicial authority may grant a new trial if it is required in the interests of justice. . . .” (Practice Book § 42-54 requires that such motion be filed within five days after a verdict or finding of guilty.)

       General Statutes § 52-270 provides in relevant part: “The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. ...”

       Practice Book § 42-55 provides: “A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with General Statutes § 52-270. The judicial authority may grant the petition even though an appeal is pending.”

       General Statutes § 54-95 (a) provides in relevant part: “No appeal may be taken from a judgment denying a petition for a new trial unless, within ten days after the judgment is rendered, the judge who heard the case or a judge of the Supreme Court or the Appellate Court, as the case may be, certifies that a question is involved in the decision which ought to be reviewed by the Supreme Court or by the Appellate Court. . . .”


text:
    CLAUDIOUS W. CHANNER v. COMMISSIONER OF CORRECTION
    (AC 19507)
    Foti, Mihalakos and Dupont, Js.
    Submitted on briefs November 1
    officially released November 27, 2001

      Alan E. Dillon, special public defender, filed a brief for the appellant (petitioner).

      James E. Thomas, state’s attorney, and Eileen F. McCarthy and George K. Ferko, assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Claudious W. Channer, appeals following the denial by the habeas court of his petition for certification to appeal from the court’s judgment dismissing his petition for a writ of habeas corpus. After a review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The court’s dismissal of the petitioner’s petition for a writ of habeas coipus was predicated on a factual review of the petitioner’s claim that he was denied the effective assistance of trial and appellate counsel, and a determination that the petitioner had failed to rebut the strong presumption that counsels’ “conduct [fell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992).

The petitioner was convicted of robbery in the first degree and conspiracy to commit robbery in the first degree. See State v. Channer, 28 Conn. App. 161, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992). As to his trial counsel, the petitioner claimed that counsel failed to investigate, interview and call certain witnesses, to file a discovery motion, to reserve a motion for a new trial, to file a motion for a speedy trial, to object to the filing of a substitute information and to guarantee an agreement that the petitioner claims he had reached with the state. Following a hearing and review of the trial transcript, the habeas court concluded in a thorough and well reasoned memorandum of decision that the record did not support some of the petitioner’s claims, the petitioner offered no evidence in support of other claims and, as to the remaining claims, that counsel’s performance was based on reasonable professional strategy under the circumstances.

As to his appellate counsel, the petitioner claimed that on appeal, counsel failed to raise claims regarding the identification procedure that was used by the police, the state’s failure to give him a speedy trial and an allegedly improper argument made by the state during closing argument at trial. The court heard testimony from the petitioner’s appellate counsel and concluded that her strategy was based on the law and sound professional judgment. Furthermore, the court concluded that even if counsel's performance was deficient, the petitioner failed to present any evidence that he was prejudiced by counsel's alleged deficient performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.

       The petitioner filed a petition for a new trial, which the court denied, finding that the witnesses’ recantations were not credible and that the petitioner had failed to meet his burden of proving the validity of the claimed misidentification of him. This court affirmed the judgment in Channer v. State, 54 Conn. App. 620, 738 A.2d 202, cert. denied, 251 Conn. 910, 739 A.2d 1247 (1999).


text:
    RALPH NOBLE v. ALLSTATE INSURANCE COMPANY
    (AC 21108)
    Foti, Mihalakos and Dupont, Js.
    Submitted on briefs November 1
    officially released November 27, 2001

      Neil Johnson filed a brief for the appellant (plaintiff).

      David A. Kelly filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Ralph Noble, appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) that the plaintiffs condition was not caused by his employment. The plaintiff claims that the board improperly (1) found that he had not established by a preponderance of the evidence that his mental disorder arose in the course of his employment, (2) found that the date of his injury occurred after the effective date of Public Acts 1993, No. 93-228, § 1 (P.A. 93-228), and (3) gave more weight to the testimony of the defendant’s expert medical witness than to that of the plaintiffs expert medical witness. We affirm the decision of the board.

The commissioner found the following facts. The defendant, Allstate Insurance Company, employed the plaintiff as a claims adjuster from 1982 to 1993. After handling small claims for approximately one year, he was promoted to a specialty position in 1983, where Ron Hawkins supervised him. From 1983 through 1992, while under Hawkins’ supervision, he received evaluations in which he was found to be meeting the department’s expectations.

In 1993, Timothy Driscoll replaced Hawkins as the plaintiffs supervisor. Driscoll became more involved in reviewing the plaintiffs work, and the plaintiff perceived that type of supervision as harassment and criticism. On May 18, 1993, the plaintiff met with Driscoll, who told him that if his job performance did not improve, negative ramifications would follow. The next morning, the plaintiffs daughter found him lying on the floor in his home, curled into a fetal position. He was then brought to a nearby hospital and treated. He never returned to work.

Thereafter, the plaintiff filed a workers’ compensation claim, alleging that his psychological problems were a result of the change in supervisors in January, 1993. Following a formal hearing, the commissioner found that the plaintiff had failed to establish by a preponderance of the evidence that his mental disorder arose in the course of his employment. As one of his subsidiary findings, the commissioner found that the opinion of the defendant’s expert medical witness was more persuasive than that of the plaintiffs expert medical witness because the former had obtained a full history regarding the plaintiffs employment and personal situations. Accordingly, the commissioner dismissed the claim. Thereafter, the plaintiff appealed from the commissioner’s decision to the board, which affirmed the decision, finding no error. This appeal followed.

I

The plaintiff first claims that the commissioner improperly (1) found that he had failed to establish by a preponderance of the evidence that his mental disorder arose in the course of his employment and (2) found that the date of injury occurred after the effective date of P.A. 93-228, § 1. We disagree.

We first set out the standard of review governing workers’ compensation appeals. “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 review board nor this court has the power to retry facts. ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board.” (Citations omitted; internal quotation marks omitted.) Schiano v. Bliss Exterminating Co., 57 Conn. App. 406, 411, 750 A.2d 1098 (2000).

“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. That section directs the board not to retry the case before it, but to determine whether evidence supports the commissioner’s finding. ‘Whether an injury arose out of and in the course of employment is a question of fact to be determined by the commissioner.’ Pereira v. State, 228 Conn. 535, 544, 637 A.2d 392 (1994).” Dangler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 447, 774 A.2d 992 (2001).

“[T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is obligated] 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.” (Internal quotation marks omitted.) Kolomiets v. Syncor International Corp., 51 Conn. App. 523, 526-27, 723 A.2d 1161 (1999), aff'd, 252 Conn. 261, 746 A.2d 743 (2000).

The commissioner found that the plaintiffs disorder did not arise out of and in the course of his employment. The board also noted that the date of the plaintiffs injury was after the effective date of P.A. 93-228, § 1. In accordance with the deferential standard of review previously discussed, we decline to disturb the commissioner’s finding in the absence of a showing that it was unreasonable or an abuse of his discretion. We also conclude that the board’s conclusion regarding the date of the plaintiffs injury did not result from an incorrect application of the law to the facts in this case.

II

The plaintiff next claims that the board improperly concluded that his injury occurred after the effective date of P.A. 93-228. We disagree.

The board concluded that the evidence supported the commissioner’s finding that the plaintiff suffered his injury on May 19, 1993. We are unable to upset that conclusion. We point out that the board did not conclude that the plaintiffs injury occurred after the effective date of P.A. 93-228. Rather, it observed that P.A. 93-228 became effective on July 1, 1993. After describing the change in the law that was effectuated by P.A. 93-228, the board noted that “we adhere to the date of injury rule.” “The date of injury rule is a rule of statutory construction that establishes a presumption that new workers’ compensation legislation affecting rights and obligations as between the parties . . . applie[s] only to those persons who received injuries after the legislation became effective, and not to those injured previously.” (Internal quotation marks omitted.) Badolato v. New Britain, 250 Conn. 753, 756 n.5, 738 A.2d 618 (1999).

It is clear from the board’s analysis that the board did not reach its decision on the basis of P.A. 93-228. Rather, the board based its decision on its conclusion that the commissioner had before him ample evidence to have concluded that the plaintiffs condition was not work related.

Ill

The plaintiff also claims that the commissioner improperly gave more weight to the evidence of the defendant’s expert medical witness than he did to that of the plaintiffs expert medical witness. We disagree.

“Our role is to determine whether the review [board’s] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . This standard clearly applies to conflicting expert medical testimony. It [is] the province of the commissioner to accept the evidence which impresses] him as being most credible and more weighty.” (Internal quotation marks omitted.) Dixon v. United Illuminating Co., 57 Conn. App. 51, 54, 748 A.2d 300, cert. denied, 253 Conn. 908, 753 A.2d 940 (2000); see also Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 349, 735 A.2d 357, cert. denied, 251 Conn. 916, 740 A.2d 864 (1999). Accordingly, we will not disturb the commissioner’s choice as to which expert was more credible.

The decision of the workers’ compensation review board is affirmed.

       General Statutes (Rev. to 1993) § 31-275 (16) (B), as amended by P.A. 93-228, § 1, excludes amenta! or emotional impairment, unless such impairment arises from a physical injury or occupational disease, from coverage under the Workers’ Compensation Act, General Statutes § 31-275 et seq.


text:
    JEFFREY WILLIAMS v. COMMISSIONER OF MOTOR VEHICLES
    (AC 20898)
    Lavery, C. J., and Flynn and Dupont, Js.
    Submitted on briefs September 12
    officially released November 27, 2001

      William W. Fisher, Jr., filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Anthony Jannotta, assistant attorney general, filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Jeffrey Williams, appeals from the judgment of the trial court upholding the suspension of his operator’s license for one year for operating a motor vehicle while under the influence of intoxicating liquor or drugs pursuant to General Statutes § 14-111c and General Statutes (Rev. to 1997) § 14-227a (h) (1) (C). On appeal, the plaintiff claims that (1) the court lacked subject matter jurisdiction over the case, (2) the suspension of his license for one year was improper and (3) the defendant commissioner of motor vehicles (commissioner) improperly applied Connecticut law. We affirm the judgment of the trial court.

The plaintiff was arrested in New Hampshire for, and subsequently pleaded guilty to, operating a motor vehicle in that state while under the influence of intoxicating liquor. Pursuant to the nationwide driver license compact (compact), which is codified in Connecticut in § 14-111c, officials in the state of New Hampshire notified the commissioner of the plaintiffs conviction. A hearing was held, and the commissioner suspended the plaintiffs license for one year pursuant to §§ 14-111c, art. IV (a), and 14-227a (h) (1) (C). Following the plaintiffs appeal, the court upheld the commissioner’s decision and dismissed the appeal. This appeal followed.

The plaintiff draws two conclusions from language in article IV (a) of the compact that the “licensing authority . . . shall give the same effect to the [driver’s] conduct reported [from the foreign state] as it would if such conduct had occurred in [Connecticut] . . . .” General Statutes § 14-lllc, art. IV (a). First, the plaintiff asserts that the statute confers exclusive jurisdiction on the department of motor vehicles. Second, he argues that the commissioner had the power to suspend his license only for ninety days, not one year.

The plaintiffs jurisdictional claim is groundless. Appeals from administrative agencies are governed by General Statutes § 4-183, which provides for jurisdiction in the Superior Court. That was recognized by the plaintiff himself, who originally invoked the jurisdiction of the trial court by bringing his appeal to that court.

The plaintiffs argument that his license should be suspended for only ninety days also is without merit. Because General Statutes § 14-227b sets forth the administrative framework for handling cases involving the operation of a motor vehicle while under the influence of liquor or drugs, the plaintiff next claims that the commissioner had the power to suspend his license only for ninety days pursuant to that section. He alleges that, instead, the commissioner improperly suspended his license for one year pursuant to § 14-227a, which sets forth the judicial framework.

That interpretation would be more convincing if it were not directly contrary to the law. General Statutes § 14-111d (c) (2) provides that § 14-227a, not § 14-227b, is comparable to article IV (a) (2) of the compact, a point we have noted previously. See Kostrzewski v. Commissioner of Motor Vehicles, 52 Conn. App. 327, 344, 727 A.2d 233, cert. denied, 249 Conn. 910, 733 A.2d 227 (1999). As a result, we conclude that the commissioner properly applied Connecticut law in suspending the plaintiffs license for one year in accordance with § 14-227a (h) (1) (C) rather than for the ninety day period provided by § 14-227b (i).

The judgment is affirmed.

       General Statutes § 14-lllc, art. IV (a), provides in relevant part: “The licensing authority in the home state, for the purposes of suspension . . . of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to article III of this compact, as it would if such conduct had occurred in the home state, in the case of convictions for . . .
      “(2) Driving a motor vehicle while under the influence of intoxicating liquor . . . .”

       General Statutes (Rev. to 1997) § 14-227a (h) provides in relevant part: “Any person who violates any provision of subsection (a) of this section shall: (1) For conviction of a first violation . . . (C) have his motor vehicle operator’s license . . . suspended for one year . . . .”

       General Statutes § 4-183 (a) provides in relevant pari,: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . .

       General Statutes (Rev. to 1997) § 14-227b (h) provides in relevant part: “The commissioner shall suspend the operator’s license . . . for a period of: (1) (A) Ninety days, if such person submitted to a test or analysis and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight . . .

       General Statutes § 14-111d (c) (2) provides: “Section 14-227a, concerning operation of a motor vehicle while under the influence of intoxicating liquor or any drug or while impaired by intoxicating liquor, shall be comparable to article IV (a) (2) of section 14-111c . . . .”