author: SHELDON, J.

text:
    PAN HANDLE REALTY, LLC v. ROBERT OLINS
    (AC 33592)
    Lavine, Sheldon and Peters, Js.

      Argued October 31, 2012
    officially released February 5, 2013

      Kenneth M. Rozich, with whom, on the brief, was Paulo M. Louro, for the appellant (defendant).

      Alan R. Spirer, for the appellee (plaintiff).
   Opinion

SHELDON, J.

In this breach of contract action, the defendant, Robert Olins, appeals from the judgment of the trial court in favor of the plaintiff, Pan Handle Realty, LLC, rendered after a trial to the court. On appeal, the defendant claims that the court: (1) abused its discretion by deciding this case on the merits prior to hearing the parties’ closing arguments, which it had previously scheduled pursuant to Practice Book § 15-5 (a) (5); (2) improperly found that the parties entered into a binding lease agreement, which the defendant subsequently breached; and (3) improperly determined that the defendant failed to prove his special defense that the plaintiff had failed to mitigate its damages resulting from his alleged breach. We disagree and, thus, affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. The plaintiff is a Connecticut limited liability company owned by Irwin Stillman and Robert Stillman, which constructed a luxury home at 4 Pan Handle Lane in Westport (the property). The plaintiff initially attempted to sell the property for a price of $5,950,000, which it later reduced when that effort proved unsuccessful. Thereafter, the defendant expressed an interest in leasing the property from the plaintiff for a period of one year. In pursuit of that interest, he submitted an application proposing to rent the property from the plaintiff at the rate of $12,000 per month, together with an accompanying financial statement. The plaintiff responded to the defendant’s proposal by preparing a draft lease for his review, which the defendant promptly forwarded to his attorney.

On January 17,2009, the defendant and his real estate agent, Laura Sydney, met with Irwin Stillman, then acting as the plaintiffs representative, to discuss the draft lease (January 17 meeting). At that meeting, the defendant and Irwin Stillman agreed to several revisions to the draft lease that had been proposed by the defendant’s attorney, then incorporated the revisions into the lease and signed it. The resulting lease, which was dated January 19, 2009, specified a lump sum annual rent of $138,000. At the time of the signing, the defendant gave the plaintiff a postdated check for $138,000, drawn on the account of Argyle Capital Management (Argyle), a company of which the defendant was the sole shareholder. The lease agreement required the plaintiff to make certain modifications to the property prior to the occupancy date, including the removal of all of the furnishings from the leased premises. In turn, it required the defendant to tender a security deposit to the plaintiff, to provide the plaintiff with proof of insurance for the property, and to execute a guaranty on behalf of Argyle because his postdated rental check had been drawn on Argyle’s account.

On January 21, 2009, the plaintiffs real estate broker informed it that, according to Sydney, the defendant planned to move into the property on January 28, 2009. The next day, the defendant requested information from the plaintiff for his renter’s insurance policy, which the plaintiff duly provided. By that time, the plaintiff had also completed the modifications requested by the defendant at the January 17 meeting and agreed to in the lease agreement, including the removal of the furniture. The defendant’s check, which was postdated January 26, 2009, was deposited by the plaintiff on that date.

The following day, however, Citibank advised the plaintiff that the defendant had issued a stop payment order on his postdated rental check and explained that the check would not be honored. The plaintiff subsequently received a letter from the defendant’s attorney stating that “[the defendant] is unable to pursue any further interest in the property.” Thereafter, the plaintiff made substantial efforts to secure a new tenant for the property, listing the property with a real estate broker, advertising its availability and expending $80,000 to restage it. Although, by these efforts, the plaintiff generated several offers to lease the property, it was never able to find a qualified tenant, or, for that reason, to enter into an acceptable lease agreement with anyone for all or any part of the one year period of the defendant’s January 19, 2009 lease.

Thereafter, on March 6, 2009, the plaintiff filed this action, alleging that the defendant had breached an enforceable lease agreement. The plaintiff further alleged that, despite its efforts to mitigate its damages, it had sustained damages as a result of the defendant’s breach, including unpaid rental payments it was to have received under the lease, brokerage commissions it incurred to rent the property again and the cost of modifications to the property that were completed at the defendant’s request.

At the close of evidence at trial on March 10, 2011, the court ordered the parties to submit their final briefs in the case by April 25, 2011, to submit reply briefs by May 9, 2011, and to appear in court to deliver their closing arguments on May 16, 2011. On May 11, 2011, however, just after the parties filed their reply briefs but before the scheduled date for closing arguments, the court issued a memorandum of decision resolving the merits of the case in favor of the plaintiff (May 11 decision). In that decision, the court found, more particularly, that the plaintiff had met its burden of proving that the parties had entered into an enforceable lease agreement, that the defendant had breached that agreement, and that the breach had caused the plaintiff damages in lost rent and utility bills incurred during the lease period, but that the defendant had failed to meet his burden of proving his special defense that the plaintiff had failed to mitigate its damages after the breach. On the basis of these findings, the court awarded the plaintiff compensatory damages in the amount of $146,000 — $138,000 in unpaid rent for the term of the lease and $8000 in utility fees incurred by the plaintiff during the lease period — plus interest, and attorney’s fees in amounts to be determined at a later evidentiary hearing.

On May 31, 2011, the defendant filed a motion to reargue and for articulation. The court denied the motion to reargue without opinion on June 3, 2011. Thereafter, on June 13, 2011, at the hearing previously scheduled to resolve the issues of attorney’s fees and interest, the court granted the defendant’s renewed motion for reargument. Counsel for the defendant made that motion in light of the premature issuance of the court’s decision on the merits without hearing the parties’ closing arguments. Thereafter, the court heard oral argument on the merits of the case. The following day, on June 14, 2011, the court issued a second memorandum of decision (June 14 decision), in which it reissued, in its entirety, its earlier May 11 decision on the merits and awarded the plaintiff additional sums for interest and attorney’s fees. This appeal followed.

I

On appeal, the defendant first claims error in the court’s issuance of its May 11 decision on the merits of this case before hearing the parties’ previously scheduled closing arguments. The defendant claims, by doing so, the court not only violated our established rules of practice for the trials of civil cases, which assertedly entitled him to present a closing argument before the court issued its decision, but did so in a manner that caused him harm, thereby entitling him to the reversal of the judgment against him and a new trial. We disagree.

In support of his claim, the defendant relies principally on Practice Book § 15-5 (a), which provides in relevant part: “[u]nless the judicial authority for cause permits otherwise, the parties shall proceed with the trial and argument in the following order: (1) The plaintiff shall present a case in chief. (2) The defendant may present a case in chief. (3) The plaintiff and the defendant may present rebuttal evidence in successive rebuttals, as required. ... (4) The plaintiff shall be entitled to make the opening and final closing arguments. (5) The defendant may make a single closing argument following the opening argument of the plaintiff.” Under this rule, the defendant claims that he had an absolute right to present a closing argument on his behalf before the court decided the case on the merits at trial.

As written, however, Practice Book § 15-5 (a) not only establishes the ordinary procedure for the trial of civil cases, including the right of a civil defendant to present a single oral argument between the opening and final closing arguments of his or her opponent; it also confirms the power of the trial court to depart from that procedure “for cause.” See de Repentigny v. de Repentigny, 121 Conn. App. 451, 455-56, 995 A.2d 117 (2010).

“The interpretation of rules of practice and statutes is a question of law subject to plenary review. . . . Subdivisions (1) through (5) of Practice Book § 15-5 (a) prescribe a certain procedure to be followed in civil trials and family matters. The clear import of the introductory language is that the court may depart from this prescribed trial procedure ‘for cause . . . .’ Practice Book § 15-5 (a).” (Citation omitted.) de Repentigny v. de Repentigny, supra, 121 Conn. App. 456. For that reason, the rule has been held by this court to permit the trial court, “for cause, [to] elect to accept legal briefs in lieu of oral closing arguments.” Id.

“[W]hen considering whether there was cause for a court to [deviate from the procedures] prescribed in Practice Book § 15-5 (a), we review the decision of the court under the abuse of discretion standard.” Id. The defendant “bears a heavy burden in demonstrating that the court abused its broad discretion in its ordering of [such deviations]. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Id. Even if we were to conclude, however, that the court abused its discretion by deviating from the procedures prescribed in § 15-5 (a), we cannot reverse its resulting judgment unless we further conclude that the error was prejudicial. “The harmless error standard in a civil case is whether the improper ruling would likely affect the result. . . . Generally, a trial court’s ruling will result in a new trial only if the ruling was both wrong and harmful. . . . [BJefore a party is entitled to a new trial because of an erroneous . . . ruling, he or she has the burden of demonstrating that the error was harmful.” (Citations omitted; internal quotation marks omitted.) Doyle v. Kamm, 133 Conn. App. 25, 34-35, 35 A.3d 308 (2012).

In this case, neither the court nor counsel for either party has advanced any reason to justify the court’s issuance of its decision on the merits without first hearing the parties’ previously scheduled closing arguments. Instead, the court’s action appears to have been an innocent mistake, resulting from its failure to recall that it had set a date for closing arguments in addition to deadlines for the submission of final posttrial briefs and reply briefs. In these circumstances, the court’s unintentional deviation from the ordinary order of proceedings in civil trials was not “for cause,” as might otherwise have been permitted by Practice Book § 15-5 (a) and, thus, surely constituted an abuse of its discretion because it could not reasonably have acted as it did.

Our conclusion, however, that the court abused its discretion does not end our inquiry. Instead, to reiterate, “[generally, a trial court’s ruling will result in a new trial only if the ruling was both wrong and harmful.” (Emphasis in original; internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 127 Conn. App. 454, 460, 14 A.3d 1053, cert. denied, 302 Conn. 933, 28 A.3d 991 (2011). It is, thus, incumbent on the defendant to demonstrate on appeal that the court’s deviation from the prescribed schedule was not only wrong but also prejudicial. See Wiseman v. Armstrong, 295 Conn. 94, 108, 989 A.2d 1027 (2010) (“[bjefore a party is entitled to a new trial ... he or she has the burden of demonstrating that the error was harmful” [internal quotation marks omitted]). That, in turn, depends upon the effect of the error on the defendant’s right to present and to receive a fair hearing on his defense and to receive a fair decision on the claims against him from an impartial and open-minded judicial fact finder, notwithstanding the premature issuance of the court’s decision.

For the following reasons, we conclude that, although the court’s innocent but unfortunate mistake was improper, any prejudice potentially arising from it was fully cured by the court’s own subsequent actions. Because the defendant has failed to demonstrate how the court’s error affected the result of the case, its occurrence does not entitle him to a new trial.

Upon learning of its error in deciding this case on the merits before hearing the previously scheduled arguments of counsel, the court attempted to cure the error, at the urging of the defendant’s counsel, by hearing belated final arguments from the parties on the merits of their claims and defenses. Although these matters had already been addressed and decided by the court in its May 11 decision, neither party took the position that the court had lost its objectivity on the issues presented or lacked the capacity to examine those issues anew, with an open mind and without bias, in fight of their oral arguments. Accordingly, neither counsel objected to the procedure, moved for a mistrial or otherwise challenged the fairness and legitimacy of the process before the arguments were presented, when the proposed cure was first suggested, or afterwards, once they had observed the manner in which the court received and responded to their oral advocacy. Indeed, the defendant’s counsel had proposed the procedure and, thus, in the absence of further objection or proposals for cure, communicated his satisfaction with its effectiveness to cure any prejudice that might otherwise have been caused by the court’s error.

Against this background, the court’s June 14 decision was unquestionably issued on the basis of the parties’ oral arguments as well as their briefs, all with the consent of counsel. Accordingly, we conclude, as did counsel, that the court’s error, however unfortunate, was harmless because it did not deprive the defendant of his right to oral argument or his right to a fair decision by an unbiased decision maker. In light of the curative measures adopted by the court, to which all parties acquiesced, it is clear beyond question that the final result of this case was not affected by the court’s error, and, thus, its occurrence does not entitle the defendant to a new trial.

II

The defendant’s second claim on appeal is that the court improperly determined that the parties entered into a valid lease agreement. The defendant contends that because “material terms were still being negotiated and various issues [were] unresolved,” there was no meeting of the minds, which is required to form a contract. We are not persuaded.

“A lease is a contract. . . . The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence. ... On appeal, our review is limited to a determination of whether the trier’s findings are clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . .

“A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling. . . .

“In order for an enforceable contract to exist, the court must find that the parties’ minds had truly met. . . . If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make. . . . [A]n agreement must be definite and certain as to its terms and requirements. . . . [N]umerous Connecticut cases require definite agreement on the essential terms of an enforceable agreement. . . . [Furthermore] [w]hether a term is essential turns on the particular circumstances of each case.” (Citations omitted; internal quotation marks omitted.) Hawley Avenue Associates, LLC v. Robert D. Russo, M.D. & Associates Radiology, P.C., 130 Conn. App. 823, 828-29, 25 A.3d 707 (2011).

There was evidence in the record to support the court’s finding that the parties entered into a valid lease agreement because there was a true meeting of the parties’ minds as to the essential terms of the agreement. Prior to the January 17 meeting, the plaintiff had provided the defendant with a draft lease agreement, which the defendant had forwarded to his attorney for review. The defendant testified that at the January 17 meeting, he and the plaintiffs representative discussed the revisions proposed by the defendant’s attorney, made the revisions and signed the lease. It was then that the defendant tendered a check, postdated to the start of the lease period, on which he noted payment for a one year lease of the premises.

There is no evidence in the record to support the defendant’s contention that he did not intend to be bound by the lease when he signed it or that terms of the lease were still being negotiated at that time. Pursuant to the lease, the plaintiff was obligated to make modifications to the premises and the defendant was required to tender a security deposit, procure renter’s insurance and execute a guaranty on behalf of Argyle. The fact that the lease obliged the parties to make certain preparations before the lease period commenced does not militate against its being a valid and binding contract. See Scoville v. Shop-Rite Supermarkets, Inc., 86 Conn. App. 426, 431, 863 A.2d 211 (2004) (“[i]t is [well] established . . . that parties are free to contract for whatever terms on which they may agree” [internal quotation marks omitted]), cert. denied, 272 Conn. 921, 867 A.2d 838 (2005). The defendant’s apparent unilateral change of heart regarding the lease agreement does not negate the parties’ prior meeting of the minds that occurred at the time the lease was executed. There is ample evidence in the record evincing the intent of the parties to be bound by the lease when they signed it and, thus, to support the court’s finding that “the lease agreement was a valid and binding contract which the defendant . . . has breached.”

Ill

The defendant’s final claim on appeal is that the court improperly found that he failed to sustain his burden of proof regarding his claim that the plaintiff had failed to make reasonable efforts to mitigate its damages. The defendant asserts that the record supports a finding that the plaintiff could have done more to mitigate its damages. We are not persuaded.

“A lease is nothing more than a contract. . . . Thus, as in any other contract action the measure of damages is that the award should place the injured party in the same position as he would have been in had the contract been fully performed. ... As a consequence, the unpaid rent, while not recoverable as such, may be used by the court in computing the losses suffered by the plaintiff by reason of the defendant’s breach of contract of lease. The plaintiff would be entitled to recover the damages which would naturally follow from such a breach.” (Internal quotation marks omitted.) Heritage Square, LLC v. Eoanou, 61 Conn. App. 329, 335, 764 A.2d 199 (2001).

“We have often said in the contracts and torts contexts that the party receiving a damage award has a duty to make reasonable efforts to mitigate damages. . . . What constitutes a reasonable effort under the circumstances of a particular case is a question of fact for the trier. . . . Furthermore, we have concluded that the breaching party bears the burden of proving that the nonbreaching party has failed to mitigate damages. . . .

“[W]e will upset a factual determination of the trial court only if it is clearly erroneous. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) Dunleavey v. Paris Ceramics USA, Inc., 97 Conn. App. 579, 582-83, 905 A.2d 703 (2006).

A review of the record reveals that prior to the execution of the subject lease, the property had been staged by the plaintiffs former real estate agent. Upon the execution of the lease, however, and in accordance with the defendant’s request, the plaintiff removed the furnishings. After the defendant’s breach of the lease, the furnishings were no longer available, and the plaintiff had to spend $80,000 to restage the property in order to lease it again. In order to recover the loss, it was reasonable for the plaintiff to advertise the property at a higher rent than the defendant had agreed to pay. Moreover, although the plaintiff was unsuccessful in its efforts to secure a replacement lessee, there is no evidence to suggest that the plaintiff was not responsive to prospective replacement lessees.

After careful review of the record, we conclude that the evidence before the court supports its finding that the plaintiffs conduct in mitigating damages was reasonable under the circumstances. The court’s finding, therefore, was not clearly erroneous, and we decline to disturb the court’s judgment awarding damages.

The judgment is affirmed.

In this opinion the other judges concurred.

       At trial, the defendant testified that Argyle had been inactive for several years.

       The property had been furnished, or “staged,” by the plaintiffs realtor in an attempt to make it more attractive to prospective purchasers. The defendant also requested that the plaintiff add shelves to the closet and bathroom in the master bedroom and that the plaintiff fasten the moving seats in the media room to the floor.

       In its May 11 decision, the court announced that a hearing would be held on June 13, 2011, to resolve the issues of attorney’s fees and interest. The court stated that “[t]he effect of this decision is not operative until the [c]ourt makes its rulings after that hearing.”

         The reissued memorandum of decision added $34,031 in interest and $16,431.35 in attorney’s fees to the defendant’s previously calculated total damages of $146,000 in unpaid rent and utility fees, for a total award of $196,462.35.

       The defendant also testified that all of the revisions at issue during the January 17 meeting benefited him and not the plaintiff. For instance, the defendant requested that the plaintiff refrain from posting any signs on the property during the lease period. The plaintiff agreed to each of these changes, which were written on the lease before the parties signed it.

       Robert Stillman testified at trial that the rent specified in the defendant’s rental application, $12,000, was discounted in consideration for the defendant’s lump sum payment of the year’s lease upon the signing of the lease agreement. Moreover, before dealing with the defendant, the plaintiff had listed the property at a higher rental price than that which the parties had agreed upon.


source: Caselaw Access Project

author: ESPINOSA, J.

license: Public Domain

text:
    NATIONAL FIRE INSURANCE COMPANY OF HARTFORD v. BEAULIEU COMPANY, LLC
    (AC 33612)
    Gruendel, Bear and Espinosa, Js.

      Argued September 18, 2012
    officially released February 5, 2013

      Michael P. Barry, for the appellant (defendant).

      Joshua S. Chapps, for the appellee (plaintiff).
   Opinion

ESPINOSA, J.

The defendant, Beaulieu Company, LLC, appeals from the judgment of the trial court rendered in favor of the plaintiff, National Fire Insurance Company of Hartford, also known as the CNA Insurance Companies, in connection with the underlying civil action in which the plaintiff sought from the defendant unpaid premiums for workers’ compensation insurance coverage. The defendant claims that it was clearly erroneous for the trial court to find (1) that three workers who performed roofing work for the defendant were employees of the defendant rather than independent contractors, (2) that even if these three workers and two others were not employees, they engaged in work that could make the plaintiff liable to provide workers’ compensation benefits under the relevant policies and (3) assuming the workers had employees, the employees were not independently insured because the defendant provided certificates of insurance during the hearing in damages showing that the workers and any of their employees were already insured. We affirm the judgment of the trial court.

The following facts as found by the court are relevant to our resolution of this appeal. The defendant is a roofing contractor that performs work primarily for commercial construction projects. It uses its own employees, contract labor and subcontractors to conduct its work. The plaintiff, a workers’ compensation insurance carrier, provided workers’ compensation coverage to the defendant under two policies for the periods of March 26, 2005, to March 26, 2006, and April 3, 2006, to June 26, 2006.

In its memorandum of decision, the court stated: “Because it is difficult to predict exactly how much labor will be needed during an upcoming policy period and because workers’ compensation insurance premiums are based on the type of labor and amount of time expended by various workers for a particular job, the insurer prepares an estimated bill at the beginning of the policy term. After the term expires, the insurer audits the insured’s payroll and expenditures to calculate the precise coverage which was provided and the appropriate premium for that coverage. Depending on whether the estimated premium was excessive or deficient, a refund or a supplemental bill issues.” “The audit determines the amount of compensation paid during the policy term for each occupation and uses a formula to arrive at the adjusted premium, retrospectively.” The insurer calculates the final premium using an insurance industry manual that assigns specific rates for different occupations, which vary based on the risk of injury associated with that occupation.

“Part five C of the insurance agreement [between the plaintiff and the defendant] bases the premium recalculation on the remuneration paid to both employees and ‘[a]ll other persons engaged in work that could make [the plaintiff] liable’ to pay workers’ compensation benefits. [S]ubparagraph two of part five C exempts remuneration from the adjusted premium computation if the defendant submits proof that the employees ‘of these [other] persons lawfully secured their workers compensation obligations.’ ”

On June 24, 2009, the plaintiff sued the defendant for unpaid premiums owed for workers’ compensation coverage it provided to the defendant under the previously mentioned policies. In its complaint, the plaintiff alleged that the defendant breached its insurance contract with the plaintiff by failing to pay the premiums for these policy periods. The dispute between the parties concerns whether certain workers to which the rate was applied ought to have been included in the premium recalculation. The parties stipulated that the defendant owed $49,807 in premiums, but disputed an additional $46,529 in premiums for workers’ compensation coverage provided to the workers; see footnote 2 of this opinion; and to Mike Rome, all of whom performed roofing work for the defendant. On March 2, 2011, the court held a hearing in damages to address the disputed premiums.

In a memorandum of decision issued on May 20,2011, the court concluded that the coverage provided by the plaintiff to the defendant embraced employees of the defendant, contract labor of the defendant and employees of subcontractors of the defendant, unless the subcontractors provided workers’ compensation coverage for its employees. The court stated: “[T]he plaintiff is entitled to include in its premium recalculation all persons or entities, whether employees of the defendant or not, for whom the plaintiff may be liable to pay workers’ compensation benefits, unless the defendant proves that such coverage was otherwise provided.” The defendant’s records showed that the workers did not have independent workers’ compensation insurance during the policy terms at issue. The defendant submitted to the plaintiff certificates of insurance for the workers, but the certificates were silent as to who was covered under the independent insurance policies. An audit manager who oversaw the defendant’s account for the plaintiff investigated each policy and determined that the policies failed to cover the workers or failed to provide coverage during the effective period of the plaintiff’s policies that are the bases for its breach of contract claim.

Except as related to Rome, the court found that “even if all of the above-named [workers] were independent contractors rather than employees, the plaintiff was entitled to additional premiums for their work with the defendant because they all fit within part five C 2 of the insurance policy in that they engaged in work that could make the plaintiff hable to provide workers’ compensation benefits.” (Internal quotation marks omitted.) In fight of its findings, the court ordered the defendant to pay $46,513 in damages to the plaintiff. On June 6,2011, the defendant filed a motion to reargue the court’s May 20, 2011 judgment. The court denied the motion to reargue on June 7, 2011. The defendant filed the present appeal on June 23, 2011. Additional facts will be set forth as necessary.

We first set forth the well established legal principles that govern insurance coverage disputes and the applicable standard of review that governs the defendant’s claims. “[C]onstruction of a contract of insurance presents a question of law for the court which this court reviews de novo. ... An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract .... In accordance with those principles, [t]he determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. ... If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning. . . . Under those circumstances, the policy is to be given effect according to its terms. . . . When interpreting [an insurance policy], we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result. . . .

“In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . .

“[A] trial court’s resolution of factual disputes that underlie coverage issues is reviewable on appeal subject to the clearly erroneous standard. . . . Such a finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [A] finding is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Thus, [i]t is well established that [i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. ... An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.” (Citations omitted; internal quotation marks omitted.) National Grange Mutual Ins. Co. v. Santaniello, 290 Conn. 81, 88-91, 961 A.2d 387 (2009).

I

The defendant first claims that there was insufficient evidence from which the court could have found that Curt Squires, David Slota and Mark Lepine were the defendant’s employees rather than independent contractors, and, therefore, they should not have been included in the plaintiffs premium audit. Specifically, the defendant claims that the only theory of recovery advanced by the plaintiff was that these three individuals were the defendant’s employees and, thus, were covered under part five C 1 of the insurance policy. The defendant argues that because there was insufficient evidence to support this theory of recovery, it was clearly erroneous for the court to find that the plaintiff met its burden of demonstrating they were employees. We are not persuaded.

Based upon our careful review of the court’s memorandum of decision, we conclude that the court did not make an express finding that the workers were employees but, rather, found only that they “all fit within part five C 2 of the insurance policy in that they engaged in work that could make the plaintiff hable to provide workers’ compensation benefits.” (Internal quotation marks omitted.) In its memorandum of decision, the court rejected the defendant’s assertion that “the plaintiff is confined by its complaint to damages arising from additional premiums owed as a result of remuneration to employees only.” The court held that the plaintiffs allegation that the defendant failed to pay the premiums due under the policy was “sufficiently broad to apprise the defendant that the plaintiff seeks damages for all additional premiums owed as a consequence of the audits.” We agree with the court and reject the defendant’s claim on appeal that the plaintiff s recovery of unpaid premiums required the plaintiff to demonstrate that the individuals who performed work for the defendant fell under part five C 1 of the policies. See footnote 5 of this opinion. As we will explain in part II of this opinion, it was sufficient for the court to find that the workers fell under the policies because they engaged in work that could make the plaintiff hable to provide workers’ compensation benefits. Accordingly, we do not find merit in the defendant’s first claim.

II

Next, the defendant claims that it was clearly erroneous for the court to find that even if all five of the workers were not employees, they exposed the plaintiff to possible liability because they engaged in work that could make the plaintiff hable to provide workers’ compensation benefits. Specifically, the defendant claims that the workers were sole proprietors, and, because there was no evidence that any of the workers affirmatively elected to be covered under the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., it was clearly erroneous for the court to find that the workers exposed the plaintiff to liability under part five C 2 of the policy. We disagree.

Evidence of the following facts relevant to this claim was presented at the hearing in damages. The audit manager who oversaw the defendant’s account for the plaintiff included potential exposure in his audit for Squires, Slota and Lepine as contract laborers — employees paid without payroll tax withholding. The audit manager included potential exposure in his audit for SkyTech, LLC, and M. J. Poirier as uninsured subcontractors with employees. Squires, Slota and Lepine did roofing work for the defendant and worked on a number of different jobs. Squires, Slota and Lepine received individual payments by the hour or by square. Payment by the hour is indicative of employee status. The defendant would direct some of the workers on how they should do work at times so the defendant could ensure that the work was done according to its contract with the owner of a particular property. The defendant would verify that the work done by the workers was performed properly before issuing payment. Slota was paid in two different ways during the policy terms. During one portion of the term, the defendant paid him as an employee, and he received a W-2 form indicating his tax withhold-ings. During another portion of the term, the defendant paid him outside of the regular payroll on a 1099 basis. At least one time sheet or invoice from Lepine documented work by two men for one day of roof repair.

Under the act, an employer must secure workers’ compensation for its employees. General Statutes § 31-284. Section 31-275 (9) (A) (i) defines an “employee” as any person who has “entered into or works under any contract of service or apprenticeship with an employer . . . .” “To further its purposes, [the] language [of the act] is not that of restriction or limitation, but all-embracing. . . . [I]t applies to all contracts of employment, and this was intended to mean ... by whomsoever made. . . . [T]he act must be interpreted liberally to achieve its humanitarian purposes . . . [and] this court should not impose limitations on the benefits provided for a . . . worker that the statute itself does not clearly specify.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 674-75, 748 A.2d 834 (2000).

General Statutes § 31-291 provides in relevant part: “When any principal employer procures any work to be done wholly or in part for him by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on or about premises under his control, such principal employer shall be hable to pay all compensation under this chapter [of the act] to the same extent as if the work were done without the intervention of such contractor or subcontractor. . . .” “[I]f an employer . . . meets the three requirements of the first sentence of [§ 31-291], it becomes liable to pay workers’ compensation benefits to an employee of its independent subcontractor, who was injured in the course of his employment.” Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 519-20, 825 A.2d 72 (2003).

“The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work. ... It is the totality of the evidence that determines whether a worker is an employee under the act, not subordinate factual findings that, if viewed in isolation, might have supported a different determination.” (Citation omitted; internal quotation marks omitted.) Rodriguez v. E.D. Construction, Inc., 126 Conn. App. 717, 728, 12 A.3d 603, cert. denied, 301 Conn. 904, 17 A.3d 1046 (2011). “The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.” (Internal quotation marks omitted.) Doe v. Yale University, supra, 252 Conn. 681. “Whether an employer-employee relationship exists for purposes of the act is a question of the right to control, and not whether an employee is a direct employee . . . .” Id., 683.

Because both subsections of part five C of the policies describe categories of persons whose remuneration the plaintiff may include in its recalculation of the defendant’s premium, the court needed to find that each worker fell within the definition of part five C 1 or part five C 2. See footnote 5 of this opinion. As noted previously, the court found that “the plaintiff is entitled to include in its premium recalculation all persons or entities, whether employees of the defendant or not, for whom the plaintiff may be hable to pay workers’ compensation benefits, unless the defendant proves that such coverage was otherwise provided.” It found that “even if all of the above-named individuals, [including Squires, Slota and Lepine], were independent contractors rather than employees, the plaintiff was entitled to additional premiums for their work with the defendant because they all fit within part five C 2 of the insurance policy in that they engaged in work that could make the plaintiff liable to provide workers’ compensation benefits.” (Emphasis added.)

In view of the evidence and pleadings in the whole record, we conclude that the court did not err in making this finding. Preliminarily, the defendant’s entire claim is predicated on its conclusory contention that the workers were sole proprietors, and, therefore, were not subject to the act unless they affirmatively elected to be covered. Sole proprietor is not specifically defined under the act. See General Statutes § 31-275. Black’s Law Dictionary (9th Ed. 2009) defines “sole proprietorship” as “[a] business in which one person owns all the assets, owes all the liabilities, and operates in his or her personal capacity” or “[o]wnership of such a business.” Our review of the record does not reveal any evidence that supports the conclusion that these workers necessarily fell within the definition of a sole proprietor. Without more than the defendant’s bald assertion that these workers were sole proprietors, we conclude that the court did not err in finding that the plaintiff could have been exposed to liability under the policies, even in the absence of evidence demonstrating that the workers affirmatively elected to be covered under the act.

As the court correctly acknowledged in its memorandum of decision, the coverage provided under the policies “embraced employees of the defendant, contract labor of the defendant, and employees of subcontractors of the defendant unless the subcontractors provided for such coverage” because the defendant could be required to pay workers’ compensation benefits to any of these categories of workers under Connecticut workers’ compensation law. See General Statutes § 31-284; General Statutes § 31-275 (9) (A) (i) (requiring employers to provide workers’ compensation to employees, defined as any person who “has entered into or works under any contract of service or apprenticeship with an employer”); General Statutes § 31-291 (requiring principal employers to procure workers’ compensation for employees of employer’s subcontractors when relation of principal employer and contractor exists in work for principal employer, work is on or about premises controlled by principal employer and work is part or process in trade or business of principal employer).

After our thorough review of the record, we conclude that there is sufficient evidence from which the court could have found that these workers performed work for the defendant in a capacity that could have exposed the plaintiff to liability to provide workers’ compensation benefits under the policy. Even if the workers were not employed by the defendant as direct employees on its regular payroll, there was evidence that they worked under a contract of service with the defendant and that the defendant had a sufficient degree of the right to control the workers, such that they were employees or subcontractors with employees for purposes of the act. See Rodriguez v. E.D. Construction, Inc., supra, 126 Conn. App. 728; Samaoya v. Gallagher, 102 Conn. App. 670, 676-77, 926 A.2d 1052 (2007) (“The term ‘control’ in [the context of § 31-291] has a specific meaning. It is merely descriptive of the work area and is used instead of such words as ‘owned by him’ or ‘in his possession’ in order to describe the area in a more inclusive fashion.”). In light of the foregoing, we conclude that the court did not err in finding that the plaintiff was entitled to include these workers in its premium audit because they engaged in work that could have made the plaintiff hable under the policies.

m

Last, the defendant claims that, assuming the workers had employees, it was clearly erroneous for the court to find that the employees were not independently insured because it provided certificates of insurance during the hearing in damages showing that the workers and any of their employees were already insured. The defendant argues that, therefore, these workers should not have been included in the premium audit because, upon its showing of proof of coverage, it was exempt, per the terms of the policy, from having them included in the audit. See footnote 5 of this opinion. We are not persuaded.

In this case, the court credited testimony from the plaintiffs audit manager who determined that the defendant’s records showed that the workers failed to have independent workers’ compensation insurance during the policy terms. Specifically, the court had before it the certificates at issue and credited testimony that the certificates of insurance submitted for the workers were silent as to who was covered under the policies noted in the certificates and that the relevant policies did not cover the workers or failed to provide coverage during the effective period of the plaintiffs policies. The court was entitled, as the trier of fact, to credit the audit manager’s testimony and disregard other conflicting testimony from the defendant. See National Grange Mutual Ins. Co. v. Santaniello, supra, 290 Conn. 90-91. As such, it was reasonable for the court to find that the defendant failed to provide proof that the workers in this case lawfully secured their workers’ compensation obligations for their employees, and, therefore, failed to exempt itself from having them included in the plaintiffs premium audit. Because the court was in the best position as the fact finder to assess the credibility of the witnesses at the hearing in damages and draw inferences therefrom, we, as the reviewing court, defer to the court’s finding in this regard and find no error.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s first claim challenges the court’s factual findings regarding Curt Squires, David Slota and Mark Lepine.

       The defendant’s second claim also challenges the court’s factual findings regarding M. J. Poirier and SkyTech, LLC. In certain parts of the record, M. J. Poirier is referred to as M. J. Poirier, doing business as Poirier Hoofing. For purposes of this appeal, we refer to all of the challenged individuals and entities collectively as the workers and individually by name where appropriate.

       The plaintiff issued workers’ compensation coverage to the defendant from March 26, 2006, to March 26, 2006, under policy number 6S58UB-7443B13-6-05 and from April 3, 2006, to April 3, 2007, under policy number 6S58UB-4965C62-3-06. The second policy was cancelled, effective June 26, 2006.

       The premiums in this case were calculated using an insurance industry publication titled the “Basic Manual for Worker’s Compensation and Employer Liability Insurance.” The pertinent section regarding the calculation of premiums for subcontractors, rule IX C, states in relevant part: “The contractor shall furnish satisfactory evidence that the subcontractor had workers compensation insurance in force covering the work performed for the contractor. For each subcontractor for which such evidence is not furnished, additional premium shall be charged on the policy that insured the contractor . . . .”

       In both of the policies at issue in this appeal, part five C of the insurance agreement states in relevant part: “Premium for each work classification is determined by multiplying a rate times a premium basis. Remuneration is the most common premium basis. This premium basis includes payroll and all other remuneration paid or payable during the policy period for the service of:
      “1. All your officers and employees engaged in work covered by this policy; and
      “2. All other persons engaged in work that could make us liable under Part One (Workers Compensation Insurance) of this policy. If you do not have payroll records for these persons, the contract price for their services and materials may be used as the premium basis. This paragraph 2 will not apply if you give us proof that the employers of these persons lawfully secured their workers compensation obligations.”
      Part one of the insurance agreement states in relevant part: “We will pay promptly when due the benefits required of you by the workers compensation law.”
      Part five A of the insurance agreement states in relevant part: “All premiums for this policy will be determined by our manuals of rules, rates, rating plans and classifications.” This section of the policy appears to incorporate by reference the aforementioned manual used to calculate the premiums at issue in this case.

       Rome is not a subject of this appeal because the trial court concluded that there were no additional premiums owed for the coverage provided to him.

       The final amount awarded to the plaintiff excluded $16 in premiums that the court attributed to wages paid to Borne, for whom the court found there were no additional premiums owed.

       “Square” is a term used in the roofing industry to determine the size of the job and indicates payment for piece work.

       When Slota was paid on a 1099 basis, he did not have taxes withheld from his payment.

       “[The] three requirements [of the first sentence of § 31-291] have been summarized as follows: (1) the relation of principal employer and contractor must exist in work wholly or in part for the former; (2) the work must be on or about premises controlled by the principal employer; [and] (3) the work must be a part or process in the trade or business of the principal employer.” (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 519 n.7, 825 A.2d 72 (2003).

       We note that, in finding that all of the disputed workers “fit within part five C 2 of the insurance policy in that they engaged in work that could make the plaintiff liable to provide workers’ compensation benefits”; (internal quotation marks omitted); the court stated that such a finding would be accurate even if the workers were independent contractors. Insofar as this may be interpreted as an indication that the plaintiff could be liable to provide workers’ compensation benefits to an independent contractor, we note the long-standing precedent of this court that independent contractors are not within the coverage of the Workers’ Compensation Act. See Rodriguez v. E.D. Construction, Inc., supra, 126 Conn. App. 728. Considered in the context of the court’s entire memorandum of decision, we find any confusion arising from this portion of the court’s decision harmless because the court evinced a clear understanding that coverage under the policy was limited to the defendant’s employees, contract labor employees of the defendant and employees of subcontractors of the defendant.

       With respect to Slota, there is evidence that, at certain times during the policy terms, the defendant did, in fact, pay him as a direct employee on the regular payroll with tax withholdings.


author: MIHALAKOS, J.

text:
    TOWN OF STRATFORD v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 15, LOCAL 407
    (AC 33962)
    Alvord, Bear and Mihalakos, Js.
    Argued October 22, 2012
    officially released February 5, 2013

      Garrett A. Denniston, for the appellant (plaintiff).

      Richard P. Gudis II, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

“In any employment, an employer is entitled to expect of his employees the qualities of truthfulness, honesty and integrity. ... In the case of police officers of a municipality, these qualities are particularly essential.” (Citation omitted.) Wilber v. Walsh, 147 Conn. 317, 320, 160 A.2d 755 (1960). In this appeal, the plaintiff, the town of Stratford (town), appeals from the judgment of the trial court denying its application to vacate an arbitration award rendered in favor of the defendant, American Federation of State, County and Municipal Employees, Council 15, Local 407 (union), reinstating a municipal police officer who had been terminated from employment for violating police department policy by lying during a medical examination. The town claims that the court improperly denied its application to vacate because the arbitration award violates a clearly discemable public policy against intentional dishonesty by police officers in connection with their employment. We agree and, accordingly, reverse the judgment of the trial court.

The relevant facts, as found by the arbitration panel, and procedural history are undisputed. The town employed Justin Loschiavo as a police officer beginning in 2006. On June 6, 2009, Loschiavo, who suffers from epileptic seizures, experienced a seizure while operating a police vehicle and struck two parked cars. After Loschiavo’s personal physician cleared him to return to duty, the town referred Loschiavo to a neurologist for a medical examination to determine what conditions would allow Loschiavo “to return to employment while eliminating or minimizing any potential risks with potentially fatal consequences.” The neurologist cleared Loschiavo to return to work full-time but required that Loschiavo be allowed to “call out sick” whenever he felt signs of an impending seizure.

Ronald Ing, the town’s director of human resources, reviewed the neurologist’s examination report and discovered discrepancies between the report and the medical information supplied to the town by Loschiavo’s personal physician. Specifically, Ing noted that Loschi-avo did not inform the neurologist of two additional seizures he had experienced since 2004. Loschiavo also denied to the neurologist that he consumed alcohol, whereas the records from his physician indicated that he had used/abused alcohol previously.

After the town provided the neurologist with this additional medical information, the neurologist examined Loschiavo a second time. The neurologist’s report of this second examination stated that he was not sure that Loschiavo “ ‘can be trusted to avoid activities that might increase his susceptibility to having seizures, particularly alcohol use,’ ” but he ultimately stated that Loschiavo “ ‘presents no more of a risk now than he did since the time of his initial hiring. Perhaps, he could be even safer because of his increased awareness regarding his disorder and what he needs to do to control it.’ ”

Upon receiving the neurologist’s report, the town charged Loschiavo with a violation of police department policy for lying during the independent medical examination. The town conducted a pretermination hearing regarding Loschiavo’s possible discharge; Loschiavo was terminated following the hearing.

The union subsequently filed a grievance on Loschi-avo’s behalf alleging that the town violated the parties’ collective bargaining agreement by terminating Loschi-avio without just cause. After a hearing before the state board of mediation and arbitration, a three member arbitration panel sustained the grievance and ordered that the town reinstate Loschiavo without back pay and without loss of seniority. The panel stated that although the violation Loschiavo “was accused of committing is a very serious one for a police officer who is charged with upholding the law,” his “lying about his physical and mental condition to doctors that could return (or prevent) [him] to work is understandable because [he] wants [his] job back.” The panel further noted that the town was aware of Loschiavo’s condition when he was hired and inferred that Loschiavo’s job performance was “at least satisfactory.” The panel thus concluded that Loschiavo’s termination “was excessive.”

The town then filed an application to vacate the arbitration award, arguing, inter alia, that an arbitration award encouraging dishonesty in a police officer violates the clear public policy in Connecticut against lying by police officers. The court rejected this argument and denied the town’s application to vacate, citing the limited standard of review over arbitration decisions and a purported lack of “authority which requires the dismissal of a uniformed police officer, in situations where that officer tells a deliberate untruth.” This appeal followed.

On appeal, the town claims that the court erred in determining that the award reinstating Loschiavo was not against public policy. Specifically, the town asserts that the award violates a clearly discemable public policy against intentional dishonesty by police officers in connection with their employment. We agree.

We begin by setting forth the standard of review and legal principles applicable to our resolution of this appeal. “Judicial review of arbitral decisions is narrowly confined. . . . When the scope of the submission [to the arbitrators] is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. . . . Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. ... In other words, [u]nder an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact. . . .

“The long-standing principles governing consensual arbitration are, however, subject to certain exceptions. Although we have traditionally afforded considerable deference to the decisions of arbitrators, we have also conducted a more searching review of arbitral awards in certain circumstances. In Garrity v. McCaskey, [223 Conn. 1, 6, 612 A.2d 742 (1992)], [our Supreme Court] listed three recognized grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy ... or (3) the award contravenes one or more of the statutory proscriptions of [General Statutes] § 52-418 (a). . . . The judicial recognition of these grounds for vacatur evinces a willingness, in limited circumstances, to employ a heightened standard of judicial review of arbi-tral conclusions, despite the traditional high level of deference afforded to arbitrators’ decisions when made in accordance with their authority pursuant to an unrestricted submission.” (Internal-quotation marks omitted.) Hartford v. Hartford Municipal Employees Assn., 134 Conn. App. 559, 565-67, 39 A.3d 1146, cert. denied, 305 Conn. 904, 44 A.3d 180 (2012). As the town’s appeal primarily implicates the second exception, it will be the focus of our discussion.

Our Supreme Court has stated that “where a party challenges a consensual arbitral award on the ground that it violates public policy, and where that challenge has a legitimate, colorable basis, de novo review of the award is appropriate in order to determine whether the award does in fact violate public policy.” Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 429, 747 A.2d 1017 (2000).

“A two-step analysis . . . [is] often employed [in] deciding cases such as this. First, the court determines whether an explicit, well-defined and dominant public policy can be identified. If so, the court then decides if the arbitrator’s award violated the public policy. . . . We note that [t]he party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated. . . . Therefore, given the narrow scope of the public policy limitation on arbitral authority, the plaintiff can prevail . . . only if it demonstrates that the [arbitrators’] award clearly violates an established public policy mandate. ... It bears emphasizing, moreover, that implicit in the stringent and narrow confines of this exception to the rule of deference to arbitrators’ determinations, is the notion that the exception must not be interpreted so broadly as to swallow the rule.” (Internal quotation marks omitted.) Hartford v. Hartford Municipal Employees Assn., supra, 134 Conn. App. 568. Our courts “have looked to a variety of sources in determining whether an arbitral award violates a well-defined public policy, and have cited, as examples of possible sources, statutes, administrative decisions and case law.” MedValUSA Health Programs, Inc. v. MemberWorks, Inc., 273 Conn. 634, 657, 872 A.2d 423, cert. denied sub nom. Vertrue, Inc. v. MedValUSA Health Programs, Inc., 546 U.S. 960, 126 S. Ct. 479, 163 L. Ed. 2d 363 (2005).

The town claims that there is a well-defined public policy in Connecticut against police officers intentionally lying in connection with their employment, a policy which the town asserts is set forth plainly in case law and in the General Statutes. First, in International Brotherhood of Police Officers v. Windsor, 40 Conn. Sup. 145, 146, 483 A.2d 626 (1984), the court vacated an arbitration award denying a grievance filed by a police officer who had been disciplined for insubordination when he refused to sign his name to an untrue return on an arrest warrant. The court’s decision rested on its characterization of “[t]he honesty of police officers” as an “important public policy” that is “central to our criminal justice system.” Id., 148. The court stated that the award punished the officer for “insisting on being truthful,” and thereby violated this public policy. Id.

Similarly, in Bloomfield v. United Electrical Radio & Machine Workers of America/Connecticut Independent Police Union, Local No. 14, 50 Conn. Sup. 180, 188, 916 A.2d 882 (2006), rev’d on other grounds, 285 Conn. 278, 939 A.2d 561 (2008), the court stated definitively that “there is a clear public policy in Connecticut . . . that it is against public policy for a police officer to he.” In Bloomfield, a police officer made untrue statements during an internal affairs investigation into the officer’s handling of an incident. Id., 181. The town terminated the officer’s employment, but an arbitration panel subsequently reinstated him. In considering whether the officer’s “lying as a police officer in the performance of his duties violated a public policy that requires truthfulness and honesty in law enforcement,” the court relied primarily on General Statutes § 54-86c. Id., 183, 185-86. Section 54-86c, Connecticut’s codification of the Brady rule, requires the state to disclose to a criminal defendant any “exculpatory information or material.” As the court in Bloomfield noted, our Supreme Court has held that “evidence of a witness having previously lied” is exculpatory material falling within these disclosure requirements. Bloomfield v. United Electrical Radio & Machine Workers of America/Connecticut Independent Police Union, Local No. 14, supra, 186, citing State v. Floyd, 253 Conn. 700, 737, 756 A.2d 799 (2000). The court further recognized that the United States Supreme Court has held that prosecutors “bear a personal responsibility to make the court or jury aware of . . . any findings or substantiated allegations that call into question the credibility of a government witness,” and that prosecutors routinely review police department personnel files to determine the existence of these “findings or substantiated allegations.” Bloomfield v. United Electrical Radio & Machine Workers of America/Connecticut Independent Police Union, Local No. 14, supra, 187, citing Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).

In light of these disclosure requirements, the court reasoned that § 54-86c and Brady’s progeny “will produce a result that each time [the officer] makes an arrest, [the town] will be obligated to inform the prosecutor’s office of the findings of untruthfulness of [the officer]. . . . The [town’s] policy would undoubtedly be that [the officer] is not to make an arrest or make an application for an arrest warrant.” Bloomfield v. United Electrical Radio & Machine Workers of America/Connecticut Independent Police Union, Local No. 14, supra, 50 Conn. Sup. 188. The court concluded, therefore, that “there is a clear public policy in Connecticut, based upon § 54-86c and the common law . . . that it is against public policy for a police officer to he,” and ultimately vacated the arbitration award reinstating the officer because the arbitration panel “violated this public policy prohibiting police officers from lying.” Id.

We agree with the town that these authorities plainly demonstrate a clear public policy in Connecticut in favor of honest police officers and, consequently, against lying by police officers in connection with their employment. The arbitration award reinstating Loschi-avo directly implicates this public policy against intentional dishonesty by police officers, and our inquiry thus shifts to whether enforcing the award violates the public policy. See, e.g., State v. AFSCME, Council 4, Local 391, 125 Conn. App. 408, 419, 7 A.3d 931 (2010), cert. granted on other grounds, 300 Conn. 912, 13 A.3d 1101 (2011). “Our analysis of this issue is confined to the facts as found by the arbitrator.” (Internal quotation marks omitted.) Id.

Here, the union concedes that Loschiavo intentionally lied during a medical examination into the conditions that would allow him safely to return to work and to perform his duties as a police officer. The arbitration panel’s determination to reinstate Loschiavo in spite of this conduct runs contrary to the well-defined public policy against intentional dishonesty by police officers in connection with their employment. See Board of Police Commissioners v. Stanley, 92 Conn. App. 723, 742, 887 A.2d 394 (2005) (reviewing court cannot enforce arbitral award reinstating police officer to employment when he has violated public policy). Accordingly, the award cannot stand.

The judgment is reversed and the case is remanded with direction to grant the town’s application to vacate the arbitration award.

In this opinion the other judges concurred.

       Loschiavo’s physician had noted that “breakthrough seizures” had been related to the use of alcohol.

       Specifically, Loschiavo was charged with violating section 2.1 of the police department policy, regarding “Integrity, Conduct Unbecoming an Officer and Attention to Duty. ” That section reads in relevant part as follows: “Integrity: The public demands that the integrity of its law enforcement officers be above reproach. ... An officer must avoid any conduct which might compromise the integrity of the Department or fellow officers, or him/herself. . . . Conduct. Unbecoming an Officer: A police officer is the most conspicuous representative of government. To the majority of the people, police officers are a symbol of stability and authority upon which they can rely. . . . The conduct of a police officer has possible ramifications, which may reflect on the Department. . . . [Ejmployees must avoid conduct, which might impair the reputation or efficiency of the Department. . . . Attention to Duty: As most police work is performed without close supervision, responsibility for proper performance of duty lies with the officer. . . . An officer has the responsibility for the safety of the community . . . and discharges that responsibility by faithful and diligent performance of duty. Anything less violates the trust placed in him/her by the people.”

       The union acknowledged that Loschiavo had lied to the neurologist during the initial examination regarding his medical history, and the union conceded that this conduct violated police department policy.

       In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542-46, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985), the Supreme Court held that due process requires that a public employee be given “some kind of’ a pretermination hearing prior to his or her discharge.

       The town also argues on appeal that the court erred in concluding that the arbitrators did not exceed their authority under General Statutes § 52-418 (a) (4). Because our conclusion on the public policy issue is sufficient to warrant reversal of the court’s judgment, we do not reach the town’s second claim.

       Neither party disputes that the submission to the arbitrators here was unrestricted.

       Relying on Bridgeport v. Bridgeport Police Dept. Employees Local 1159, Council 15, AFSCME, AFL-CIO, Superior Court, judicial district of Fairfield, Docket No. CV-91-0281769-S (May 16, 1994), the town also asserts that General Statutes § 7-276, read in combination with the town’s police department policies, supports the conclusion that public policy mandates honest and law-abiding police officers. Our Supreme Court, however, has indicated that reliance on § 7-276 as a basis for public policy is inappropriate where— as here — the town in question does not have a board of police commissioners. See South Windsor v. South Windsor Police Union Local 1480, Council 15, 255 Conn. 800, 817-18, 823, 770 A.2d 14 (2001). We need not rely on § 7-276 in any event because the other authorities upon which the town relies plainly demonstrate a clear public policy against intentional dishonesty by police officers in connection with their employment.

       The fact that the public policy is set forth in Superior Court decisions is not fatal to the town’s claim. As our Supreme Court has stated, “[r]ather than requiring that public policy be grounded on a particular type of source ... we have instead focused our inquiry on whether the alleged public policy is in fact clearly discernible in the purported source.” MedValUSA Health Programs, Inc. v. MemberWorks, Inc., supra, 273 Conn. 657-58; see also id., 664 (party must cite “any decision or line of decisions clearly demonstrating the existence of a well-defined and dominant public policy” [emphasis added]).

         Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

       At oral argument before this court, the union appeared to suggest that, to the extent a public policy exists against intentional dishonesty by police officers, this public policy should be tempered by a sliding scale to measure the degree of an officer’s lie, and consequently, to determine the appropriate punishment for a dishonest officer on a case-by-case basis. We decline to attach the union’s proposed conditions to our holding, however, because condoning a subjective “degrees of dishonesty” test would dilute what we conclude to be a clear public policy against any intentional dishonesty by police officers in connection with their employment. Moreover, although some hypothetical set of facts may require us to consider whether an arbitral award concerning punishment for a so-called “lesser he” implicates the public policy against intentional dishonesty by police officers, the he at issue here — an intentional he about a matter directly related to the safe and effective performance of an officer’s duties — does not present that case.
      We also reject the union’s argument in its brief that the “proper forum to address the alleged public pohcy violation . . . lays with the Pohce Officer Standards and Training Council [council],” pursuant to General Statutes § 7-294d. The town has made clear that it “is not relying on § 7-294d, nor is [it] alleging a breach of the [council's] standards in any way.”


author: BEAR, J.

text:
    TRAVIS DAVIS v. COMMISSIONER OF CORRECTION
    (AC 32883)
    Graendel, Alvord and Bear, Js.

      Argued October 11, 2012
    officially released February 5, 2013

      Justine F. Miller, for the appellant (petitioner).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dear-ington, state’s attorney, and Sean P. McGuinness, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

BEAR, J.

The petitioner, Travis Davis, appeals following the habeas court’s granting of his petition for certification to appeal from its judgment denying his amended second petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly rejected his claim of ineffective assistance of habeas counsel in his first habeas proceeding and improperly concluded that the petitioner failed to prove that the state suppressed evidence favorable to him at his criminal trial in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of the petitioner’s claims. As recited by this court in State v. Davis, 51 Conn. App. 171, 721 A.2d 146 (1998), the jury reasonably could have found the following facts. “On March 8, 1994, the New Haven police department was informed that the [petitioner], for whom the department had an outstanding arrest warrant, was standing at the comer of Chapel and Day Streets in New Haven. The officers had been given a physical description of the [petitioner], and were warned that he was believed to be armed and dangerous. A number of plainclothes officers converged on the location in two cars. After two officers exited the first car, approached the [petitioner] and identified themselves as police officers, the [petitioner] turned to look at them and then ran east on Chapel Street. The two officers, joined by officers from the second car, ran after the [petitioner]. During the pursuit, Detective-Sergeant Michael Sweeney was the officer closest to the [petitioner]. At some point during the pursuit, the [petitioner] pulled a gun from his waistband and kept it pointed toward the ground. Soon thereafter, the [petitioner] turned to look back at the officers, raised his gun and pointed it at Sweeney. Another detective yelled, ‘Mike, he’s got a gun,’ prompting Sweeney to shoot the [petitioner], who fell to the ground. The police recovered the [petitioner’s] semiautomatic nine millimeter pistol. The hammer was in the firing position with a round in the chamber and a full magazine of ammunition.” Id., 174-75. The petitioner was arrested and, following a jury trial, the petitioner was convicted of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), attempt to commit assault of a peace officer in violation of General Statutes §§ 53a-49 (a) (2) and 53a-167c (a) (1), commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k and criminal possession of a pistol in violation of General Statutes § 53a-217. Id., 172-73. He also was found guilty of being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a) and being a persistent serious felony offender in violation of § 53a-40 (b). Id., 173. On direct appeal, this court reversed the conviction on the charges of being a persistent dangerous felony offender and committing a class A, B or C felony with a firearm. Id., 174.

The petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of trial counsel that was decided on February 24, 2000. On March 1, 1999, the first day of the first habeas proceeding, the court granted the petitioner’s request to proceed as a self-represented party and to have his habeas counsel, attorney Raymond Rigat, serve as standby counsel. The first habeas court denied the petition for a writ of habeas corpus. It does not appear that the petitioner filed a petition for certification to appeal.

On April 30, 2010, the petitioner filed a second amended petition for a writ of habeas corpus (second habeas petition) alleging ineffective assistance of trial counsel, ineffective assistance of habeas counsel, a violation of his due process rights due to the alleged suppression of evidence and a violation of his due process rights due to the alleged destruction of potentially exculpatory evidence. On May 3, 2010, the state filed a pretrial motion to dismiss the counts alleging ineffective assistance of trial counsel, ineffective assistance of habeas counsel and the due process violation arising from the alleged destruction of potentially exculpatory evidence. During the second habeas trial, the court granted the state’s motion to dismiss as to the count alleging ineffective assistance of trial counsel, and the petitioner withdrew with prejudice the count alleging a violation of his due process rights arising from the alleged destruction of potentially exculpatory evidence. The petitioner’s second habeas trial was held on May 3 and 4, 2010. On June 16, 2010, the second habeas court issued its memorandum of decision in which it denied the second habeas petition. On October 20,2010, the second habeas court granted the petitioner’s petition for certification to appeal. This appeal followed.

On appeal, the petitioner claims that that second habeas court improperly rejected his claim of ineffective assistance of habeas counsel in the first habeas proceeding and improperly concluded that the petitioner had failed to prove that the state suppressed evidence favorable to the petitioner in his underlying criminal trial.

I

INEFFECTIVE ASSISTANCE OF HABEAS COUNSEL

The petitioner fust claims that the second habeas court improperly rejected his claim of ineffective assistance of his habeas counsel in his first habeas proceeding. Specifically, the petitioner claims that he was deprived of the effective assistance of his habeas counsel because his habeas counsel failed to conduct an adequate pretrial investigation and was unprepared for trial. The petitioner asserts that because of his first habeas counsel’s lack of preparation, he was compelled to proceed as a self-represented party. Additionally, he asserts that he would have prevailed at his first habeas proceeding if his counsel had located and presented certain evidence that he claims would have raised a reasonable doubt about his guilt. We disagree.

“We set forth the appropriate standard of review for a challenge to a denial of a petition for a writ of habeas corpus when certification to appeal is granted. The conclusions reached by the [habeas] court in its decision to [deny a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. ... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous .... [0]ur review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Citation omitted; internal quotation marks omitted.) Boyd v. Commissioner of Correction, 130 Conn. App. 291, 294, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011).

“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice. . . . For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) .... To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance. ... To satisfy the prejudice prong for ineffective assistance claims resulting from guilty verdicts, the petitioner must demonstrate that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Trotter v. Commissioner of Correction, 139 Conn. App. 653, 658, 56 A.3d 975 (2012). “Constitutionally adequate assistance of counsel includes competent pretrial investigation.” Siemon v. Stoughton, 184 Conn. 547, 554, 440 A.2d 210 (1981).

“[When] apphed to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding. . . . [T]he petitioner will have to prove that [his] prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial

“A convicted [petitioner’s] claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unworkable. . . . Only if the petitioner succeeds in [this] herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel.” (Citation omitted; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 138 Conn. App. 454, 474-75, 53 A.3d 257 (2012).

The petitioner argues that Rigat provided deficient performance at the petitioner’s first habeas proceeding because he failed to conduct an adequate pretrial investigation and was unprepared for trial. We are not persuaded.

At the May, 2010 habeas trial, the petitioner presented the testimony of Rigat, who testified about his general practices for preparing for habeas trials and his preparation for the petitioner’s first habeas proceeding. Rigat testified that it was his practice to acquire the trial counsel's case file, that he had his staff meet with the petitioner about the petitioner’s case and that he subpoenaed police officers associated with the petitioner’s arrest as witnesses for the first habeas proceeding. The petitioner testified that he did not meet with Rigat until the first day of his first habeas proceeding but that he spoke to Rigat on the telephone and that a paralegal and an attorney from Rigat’s office had visited him.

In its memorandum of decision, the second habeas court noted that Rigat “testified quite clearly that he was indeed prepared and the petitioner did not present any evidence that could lead the court to conclude otherwise.” The second habeas court found that Rigat “was indeed adequately prepared to go forward in his representation of the petitioner at the first habeas trial and that the petitioner, although unhappy that . . . Rigat had not met with him before the date of the habeas trial, was not forced to represent himself.” The court found credible Rigat’s testimony that he was adequately prepared and, therefore, concluded that Rigat was adequately prepared to represent the petitioner at his first habeas proceeding. Furthermore, the petitioner presented no evidence to the second habeas court to demonstrate that Rigat was not adequately prepared. We, therefore, are not persuaded that the second habeas court improperly rejected the petitioner’s claim of ineffective assistance of habeas counsel in the first habeas proceeding.

II

ALLEGED BRADY VIOLATION

The petitioner next claims that the second habeas court improperly concluded that he failed to prove that the state suppressed evidence favorable to him at his criminal trial in violation of Brady v. Maryland, supra, 373 U.S. 87, and Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). Specifically, the petitioner argues that the state suppressed New Haven police Officer Robert Benson’s report, which was exculpatory, or at least favorable to him, because it stated that no fingerprints were found on the gun that the petitioner allegedly possessed at the time of his arrest. The crux of the petitioner’s argument is that because no fingerprints were found on the gun, the result of the trial would have been different if he had been in possession of Benson’s report and was able, therefore, to use the information to support his theory that the police had planted the gun on him.

“The United States Supreme Court has held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the [government]. . . . This type of violation of the defendant’s due process rights is commonly referred to as a Brady violation. ... To prevail on a Brady claim, the defendant bears a heavy burden to establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material.” (Citations omitted; internal quotation marks omitted.) Quintana v. Commissioner of Correction, 55 Conn. App. 426, 436-37, 739 A.2d 701, cert. denied, 252 Conn. 904, 743 A.2d 614 (1999). “Whether the petitioner was deprived of his due process rights due to a Brady violation is a question of law, to which we grant plenary review.” (Internal quotation marks omitted.) William B. v. Commissioner of Correction, 128 Conn. App. 478, 484, 17 A.3d 522, cert. denied, 302 Conn. 912, 27 A.3d 371 (2011).

“Impeachment evidence as well as exculpatory evidence falls within Brady's definition of evidence favorable to an accused.” (Internal quotation marks omitted.) Id., 487. “The test of materiality of nondisclosed exculpatory evidence requires that there be a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . [W]here there is no reasonable probability that disclosure of the exculpatory evidence would have affected the outcome, there is no constitutional violation under Brady.” (Internal quotation marks omitted.) Quintana v. Commissioner of Correction, supra, 55 Conn. App. 438. “Courts have found that improperly withheld impeachment evidence is not material where the testimony of the witness who might have been impeached is strongly corroborated by additional evidence supporting a guilty verdict.” Id., 439.

The petitioner argues that the second habeas court improperly concluded that he failed to prove that the state suppressed Benson’s report, which was favorable to him in that it demonstrated that no fingerprints were found on the gun that the petitioner allegedly possessed at the time of his arrest. We are not persuaded.

At the petitioner’s second habeas trial, the petitioner’s trial counsel testified that four police officers had testified at the petitioner’s criminal trial that they saw the petitioner with a gun at the time of his arrest. Rigat testified that several witnesses had testified at the petitioner’s criminal trial that the petitioner had possessed a gun at the time of his arrest. Rigat further testified that “the fact that there would be no prints on a gun doesn’t mean that the suspect didn’t possess the gun, so that’s actually kind of well known among most criminal lawyers.” In its memorandum of decision denying the second habeas petition, the second habeas court found that “the evidence allegedly suppressed by the state was not favorable to [the petitioner] and cannot, therefore, be classified as Brady material.” Furthermore, the court found that “[t]he fact that the weapon found at the scene of the shooting did not have any fingerprints is not in and of itself exculpatory . . . .” See, e.g., State v. Turner, 62 Conn. App. 376, 391, 771 A.2d 206 (2001) (because state based its case exclusively on eyewitness evidence of defendant’s dominion and control over firearm, namely, that officers observed defendant carrying gun, lack of fingerprints on gun not relevant to charges).

After a thorough review of the record, we agree with the second habeas court’s conclusions that the fact that the gun “did not have any fingerprints is not in and of itself exculpatory” and that Benson’s report “was not favorable to [the petitioner] and cannot, therefore, be classified as Brady material.” We conclude, therefore, that the habeas court properly determined that the petitioner failed to prove that the state suppressed evidence favorable to him in his underlying criminal trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although not provided in the record, we take judicial notice of the first habeas court’s memorandum of decision published on February 24, 2000, Davis v. Commissioner of Correction, Superior Court, judicial district of Hartford, Docket No. CV-97-05773370 (February 24, 2000).

       The petitioner advances two distinct claims of ineffective assistance of habeas counsel. One of these claims is that his standby counsel, who was appointed after the petitioner opted to represent himself, failed to assist the petitioner in obtaining the services of an independent forensic expert, despite representing to the habeas court that he would provide the petitioner with such assistance. At oral argument before this court, the petitioner conceded, inter alia, that there exists no constitutional right to the effective assistance of standby counsel and that the habeas court did not address this claim in its memorandum of decision. See State v. Guitard, 61 Conn. App. 631, 635, 765 A.2d 30 (“[A] defendant does not have a state or federal constitutional right to standby counsel. . . . Once a defendant has properly embarked on the path of self-representation, his constitutional right to counsel ceases. . . . [A]fter deciding to proceed pro se, he ha[s] no constitutional right to the effective assistance of counsel in any capacity. ” [Citation omitted; internal quotation marks omitted.]), cert. denied, 255 Conn. 952, 770 A.2d 32 (2001). Because the petitioner concedes that there was no basis on which the second habeas court could have ruled in his favor on this specific claim relating to standby counsel, we accept the petitioner’s concession and do not discuss this claim further in this opinion.

       The testimony in the second habeas trial concerning the petitioner’s possession of a firearm is consistent with the eyewitness testimony at his criminal trial. As previously noted, in the petitioner’s direct appeal from his conviction, this court set forth some of the facts that reasonably could have been found by the jury as follows: “On March 8,1994, the New Haven police department was informed that the [petitioner], for whom the department had an outstanding arrest warrant, was standing at the comer of Chapel and Day Streets in New Haven. The officers had been given a physical description of the [petitioner] and were warned that he was believed to be armed and dangerous. A number of plainclothes officers converged on the location in two cars. After two officers exited the first car, approached the [petitioner] and identified themselves as police officers, the [petitioner] turned to look at them and then ran east on Chapel Street. The two officers, joined by officers from the second car, ran after the [petitioner]. During the pursuit, Detective-Sergeant Michael Sweeney was the officer closest to the [petitioner]. At some point during the pursuit, the [petitioner] pulled a gun from his waistband and kept it pointed toward the ground. Soon thereafter, the [petitioner] turned to look back at the officers, raised his gun and pointed it at Sweeney. Another detective yelled, ‘Mike, he’s got a gun,’ prompting Sweeney to shoot the [petitioner], who fell to the ground. The police recovered the [petitioner’s] semiautomatic nine millimeter pistol. The hammer was in the firing position with a round in the chamber and a full magazine of ammunition. The [petitioner] was arrested and subsequently convicted of the charges . . . .” State v. Davis, supra, 51 Conn. App. 174-75.