author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. DAVID WAYNE BELL
    (AC 29893)
    McLachlan, Gruendel and Pellegrino, Js.

      Argued December 5, 2008
    officially released March 3, 2009

      Moira L. Buckley, special public defender, for the appellant (defendant).

      Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary W. Nicholson, senior assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, David Wayne Bell, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, robbery in the first degree in violation of General Statutes § 53a-134 (a) (1) and assault of a pregnant woman resulting in the termination of pregnancy in violation of General Statutes § 53a.-59c) On appeal, the defendant claims that the trial court improperly (1) admitted hearsay testimony, (2) admitted evidence of an Amber Alert and (3) instructed the jury regarding consciousness of guilt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In September, 2004, Sarah Tarini lived in a two bedroom second floor apartment at 16 Mosher Street in Meriden with her minor daughter, Michael Fontanella and Shanna Kropp. On September 1, 2004, Jennifer Helmedach, her infant daughter and her boyfriend, the defendant, arrived at Tarim’s apartment and asked to spend the night, as they were going to visit family in New York the next day. Tarini allowed Helmedach, her daughter and the defendant to stay in the room usually shared by Fontanella and Kropp. Helmedach and the defendant spent most of September 1, 2004, in the bedroom, and the defendant would periodically come out in the living room, sit in a chair and play with a small pocketknife.

On September 2, 2004, Helmedach left the apartment with her baby sometime between 2 and 5 p.m. for twenty to thirty minutes to make a pay telephone call. That day, Helmedach was wearing a black see through shirt, and the defendant was wearing baggy jeans, a white T-shirt and a white cloth on his head. At approximately 6:30 p.m., Helmedach and the defendant left the apartment, leaving Helmedach’s baby in the apartment and stating that they were going down the street to use a pay telephone and to find a ride. Helmedach and the defendant returned thirty or forty minutes later.

Sometime around 5 p.m., the victim, twenty year old Faye Bennet, left the apartment she shared with her boyfriend, Keiwah Burton, for her mother’s house. Ben-net was six or seven months pregnant with Burton’s baby. At approximately 7 p.m., she called Burton, told him that she had just finished taking Helmedach shopping for her baby and that she was going to “chill” with Helmedach and invited him to join them. Burton declined her invitation.

At approximately 7:30 p.m., Tarini left the apartment with her daughter, Fontanella and Kropp to buy some cellular telephone minutes at a nearby store. Before leaving, Tarini informed Helmedach and the defendant that she was leaving. Fontanella also informed Helmedach and the defendant that they were leaving, and they stated that a ride was coming for them. When Tarini’s group left, Helmedach, Helmedach’s daughter and the defendant were alone in the apartment.

At approximately 7:45 p.m., Scott Baustien, the resident of the first floor apartment, noticed two women, appearing to be in their early twenties, walk by his living room window from the driveway toward the front of 16 Mosher Street. One woman was visibly pregnant and wearing a blue or gray “summery” dress. The other woman, Helmedach, had longer hair and was a little taller. Baustien heard the two women walk up to the second floor, knock and walk into the second floor living room after which he heard some thumping noises. Baustien noticed also that a red sport-utility vehicle, resembling a Chevrolet Blazer, was blocking the driveway.

At approximately 7:53 p.m., Baustien called Clarence Labbe, the resident of the third floor apartment, on his cellular telephone. Baustien called because Labbe’s vehicle was blocked in by the red sport-utility vehicle. At approximately 8 p.m., Labbe was watching television with his wife when he heard some banging and thumping in the second floor apartment. At the time, Labbe was in his bedroom, directly above a bedroom in Tarini’s apartment. Labbe thought it was children playing because he did not hear yelling. Labbe also spoke with Baustien about the noises, which were upsetting Baustien because he had to wake up early for work.

Baustien went outside because the red sport-utility vehicle was blocking the driveway and saw the woman, who was not pregnant, who had walked by his window earlier. Baustien noticed that there was a baby in the passenger seat and told the woman that she could not park there. He noticed that she looked nervous and apologized before she drove quickly toward the road.

After the noises downstairs stopped, Labbe heard someone leave the building, a vehicle start, the squeal of tires as a vehicle traveled down the driveway and a smash into the building. Labbe went to the window to see what had happened but noticed only that the red sport-utility vehicle was no longer in the driveway and heard a horn sound twice from in front of the apartments. Carol Lamb, a nearby resident, was outside washing her car when she saw the red Chevrolet Blazer back down the driveway of 16 Mosher Street and hit the comer of the house. Lamb could see that the driver was female and heard a baby crying inside the vehicle after it stmck the house. Lamb saw the vehicle continue to back up and pull up in front of the house. She heard the horn beeping and went into her house.

Tarini, her daughter, Fontanella and Kropp returned to their apartment between 8:15 p.m. and 8:30 p.m. Tarini sent her daughter to her bedroom because it was close to her bedtime and then knocked on the other bedroom door. When Tarini received no response, she opened the door and discovered a lot of blood and a garbage bag containing a body on the bed. Tarini asked Fontanella to bring Tarim’s daughter to Labbe’s apartment, so that her daughter would not have to see anything, and called 911. At approximately 8:39 p.m., Labbe called Baustien, and they both went to the second floor apartment and saw a body in the bedroom.

At approximately 8:41 p.m., Meriden police Captain Timothy Topulos and Officer Justin Hancort arrived at 16 Mosher Street. The officers met Tarini and Fontanella, who appeared very upset and visibly shaken, outside the building. Upon entering and proceeding up the stairway, they encountered Kropp sitting on the staircase. The officers entered the second floor apartment and encountered Baustien in the kitchen. Baustien, as requested, left the apartment and returned to his residence on the first floor. Tarini later identified the defendant for the police from a photograph and provided a written statement.

The officers walked toward the bedroom and discovered blood on the carpet and the walls and a green plastic garbage bag on a mattress on the floor. Next to the bloodstains was a baby bottle with some milk or formula in it. After determining that no one was in the closet, the officers observed a body inside the garbage bag. Topulos called in emergency medical personnel to evaluate the victim. Medical personnel arrived and determined that the victim was deceased. Topulos began a search for a second victim because of his observation of the baby bottle. In addition, Christopher Sudock, a detective with the state police central district major crime squad, observed a container of powdered infant formula along with the baby bottle containing liquid milk or formula.

The victim was initially misidentified at the scene as Helmedach. When the victim’s body was being removed by employees of the office of the chief medical examiner, however, Sudock observed a tattoo on her right shoulder, which read “Faye.” The victim’s identity was verified during the autopsy through fingerprint identification as Faye Bennet.

Bennet had petechial hemorrhages on her face that are typical of a premortem physical obstruction to the flow of blood in the neck. Bennet also suffered bruising on her jaw, cuts and abrasions on her neck, six stab wounds to her neck and upper torso and defensive wounds on both hands. Several of the stab wounds were irregular, suggesting that either the knife was twisted or Bennet moved as the injury occurred. Although the stab wounds would have caused her death without medical intervention, Bennet’s death was hastened by manual strangulation.

At the time of her death, Bennet had been carrying a male fetus, approximately twenty-seven weeks along, with no diseases, anomalies or injuries. The cause of the termination of the pregnancy was Bennet’s death.

Next to the mattress on which Bennet’s body was discovered, Sudock found a tom white tank top with red blood like stains. Sudock also discovered a white pillowcase containing red blood like stains and a shoe sole print pattern in a blood like substance from the area next to Bennet’s body. After observing bruising on Bennet’s neck that he suspected was from a ligature, Sudock seized an electric blanket in the bedroom with a blood like substance on the cord. A portion of mg near the electric blanket had a large concentration of blood.

After the victim and the defendant were identified, Robert Pekrul, a detective with the Meriden police department, attempted to locate the defendant, Helmedach, Helmedach’s daughter and Bennet’s Chevrolet Blazer. After exhausting local leads, the Meriden police department issued an Amber Alert. The information about the three individuals and the vehicle was advertised on electronic signs on the highway, as well as via the news media. The same information was entered into the National Crime Information Center system for dissemination to other law enforcement agencies.

On September 3,2004, Bennet’s Chevrolet Blazer was recovered in East Orange, New Jersey, and transported to Meriden. When it was processed on September 8, 2004, the vehicle contained a white towel with blood like staining, a black see through shirt with floral print and a pair of men’s denim jeans, size forty, with blood like stains. In addition, there were blood like stains on the passenger side front seat, toward the center console of the vehicle.

On September 4, 2004, at approximately 10:30 a.m., Pekrul learned that Helmedach’s daughter had been brought to the East Orange police department by the defendant’s sister, Shrae Miller. On September 4, 2004, Pekrul interviewed Miller but obtained no information leading to the defendant or Helmedach. On September 10, 2004, he reinterviewed Miller and learned that the defendant was connected to Danisha Fondeur of the Bronx, New York. Pekrul traveled to Fondeur’s apartment building where he remained until he observed the defendant and Helmedach walking past the doorway outside. Pekrul arrested the defendant and Helmedach and found a folding knife on the defendant. At the time of his arrest, the defendant was wearing Air Jordan sneakers. Without prompting, the defendant stated: “My life is over anyway, and I’m gonna get the needle for the murder and attempted murder.” The defendant also stated that if he had known the police were coming, he would have killed them. During the booking process in New York, the defendant stated, “I killed the bitch.” Once back in Connecticut, while various items were being taken from the defendant by the police, he began to laugh and stated, “I stabbed the bitch.”

James Streeter, an imprint impressions examiner for the state police forensic science laboratory, examined the footwear impression on the pillowcase found near Bennet’s body. Streeter compared the impression with the sole of the left shoe of the pair of black Air Jordan sneakers that the defendant was wearing when he was arrested. Streeter concluded that the patterns were alike in size, shape and design.

Nicholas Yang, the lead criminalist in the deoxyribo-nucleic acid (DNA) section of the state police forensic science laboratory, analyzed swabs taken from the defendant’s Air Jordan sneakers and determined that Bennet was included as a contributor to stains on both sneakers. Yang also analyzed stains on the jeans seized from Bennet’s Chevrolet Blazer on September 8, 2004. Bennet was also included as a contributor to one stain and included as the single source for another stain. The expected frequency of individuals who could be the source of the DNA profile in the latter stain is less than one in seven billion in any ethnic population.

On September 13,2004, the defendant agreed to speak with Pekrul and his partner, Detective Dennis Sullivan, about the events of September 2, 2004. After confessing to the detectives, the defendant agreed to give a tape-recorded statement documenting his confession.

The defendant recounted the following story in his taped confession. On September 2, 2004, approximately ninety minutes before he killed Bennet, the defendant had a fight with Helmedach, and Heknedach left the apartment with her daughter. The defendant, Tarini and Fontanella then discussed robbing different people, and, after Fontanella and Kfopp left the apartment to buy cellular telephone minutes, he and Tarini decided to rob Bennet. Tarini called Bennet and had her come to Tarini’s apartment for a drug deal. The plan was to kill Bennet and then rob her, which is why the defendant made sure a garbage bag was available. The defendant told Tarini that if Bennet came with a man, he would kill the man and Tarini would have to kill Bennet.

Bennet arrived at the apartment door at the same time as Helmedach and her baby. The defendant grabbed Bennet hard, put her in a choke hold and squeezed so that she would not scream. The defendant had given Tarini the knife to hold because he would not be able to get it out of his pocket once he grabbed Bennet. Tarini opened the door to the bedroom, and the defendant dragged Bennet into the room. The defendant stabbed Bennet in the throat with the knife. Bennet surprised the defendant by continuing to fight, and the defendant stabbed her again. Bennet was able to grab the knife and wrest it away from the defendant. Tarini handed the defendant a pillow, which he pushed down on Ben-net’s face while he tried to get the knife back. Bennet pleaded with the defendant, stating: “[M]ybaby. David, stop!” After the defendant held the pillow over Bennet’s face, she stopped fighting but was still alive, so the defendant tried to break her neck. He and Tarini then wrapped Bennet in a blanket, folded her body and put the bag over her.

The defendant changed his bloody shirt and ran downstairs. Helmedach was sitting on the front porch, being yelled at by a man, when the defendant went outside. The defendant grabbed her baby, threw Helmedach the keys and told her they were leaving the state in Bennet’s vehicle. They stopped at a gasoline station in Bridgeport or New Haven and searched the car for Bennet’s drugs or other valuable belongings. They found marijuana, prenatal vitamins, credit cards with receipts and $430. The defendant sent Helmedach into the gasoline station to try to use Bennet’s cards at the automated teller machine. After Helmedach was unsuccessful at the teller machine, the defendant put the credit cards in his pocket.

The defendant drove to Miller’s residence in New Jersey to leave the baby with her. The defendant changed his clothes in the car because they were bloody, left the car keys and took Bennet’s cellular telephone and threw it into a patch of flowers. Miller’s father called her and asked about Bennet’s murder because the defendant’s name and face were broadcast on the television news. The defendant unplugged the telephone so that no one else could call and asked Miller to get him a hotel room under an assumed name. The defendant and Helmedach spent the night in the hotel, left between 4:30 and 5:30 a.m., and returned to Miller’s house to leave Helmedach’s daughter there. The defendant and Helmedach took a train to the Bronx. The defendant stayed in Fondeur’s apartment in the Bronx for two days with Helmedach. After that, the defendant broke into another apartment on the same floor via the fire escape.

The defendant stated that he kept Helmedach with him so that she could not be a witness. The defendant stated that the only reason he left witnesses behind was that it took so long for him to knock Bennet dowm and “put her out.” The defendant stated that if he knew that the police were coming for him the day he was arrested, he would have run. The defendant also admitted that he was wearing the black Air Jordan sneakers that he was arrested in when he killed Bennet. The defendant also stated: “If I had a gun, I would have shot you all. It would have been a wrap. ... I would have shot you all.”

I

The defendant first claims that the court abused its discretion by allowing Burton’s hearsay testimony regarding Bennet’s statements describing a past event. Specifically, the defendant challenges the introduction of “Burton’s testimony regarding Bennet’s statements that she had already gone shopping with Helmedach.” (Emphasis in original.) We disagree.

Burton testified that Bennet called him at about 7 p.m. on September 2, 2004, and “told [him] she just finished taking [Helmedach] shopping for her baby, or whatever the case may be, but they had been shopping; that’s what she told me or whatever and that . . . [s]he told me that she was taking — that she already took her friend out, you know, to go shopping for the baby, bought the baby some things and they were gonna go chill, or whatever the case, do — whatever it is females do together, whatever, and that’s what she told me.” The court gave a limiting instruction that “the testimony [the jury had] just heard about the cell phone conversation about where . . . Bennet was going to go. I will tell you that any statement that . . . Bennet made with respect to her intention to go to a particular place is admissible only to establish her own conduct. In other words, it’s evidence that she completed what she indicated she was going to do. It is not evidence of any conduct or intention on the part of anybody else she mentioned, which would be [Helmedach]. It’s not evidence at all as to [Helmedach’s] conduct or [Helmedach’s] intentions. It relates solely to the intention of . . . Bennet as evidence that she, in fact, carried out that intent.” Burton provided additional testimony about Bennet’s intentions to spend more time with Helmedach and his familiarity with Helmedach and her boyfriend, the defendant.

After Burton and the jury were excused, the court stated: “The jury is gone and the attorneys, based on a previous discussion and ruling by the court, want to record a . . . ruling that is not presently on the record .... I have specific reference to that portion of [Burton’s] testimony indicating that around seven o’clock, or whatever the time was, that the — that . . . Bennet had called him to tell him that she was going to chill or spend some time with [Helmedach]. On a prior occasion, [defense counsel] indicated that he was going to object to that. It was discussed and rather than interrupt the flow of the testimony, it was agreed that he could preserve that ruling by . . . putting it on the record at an appropriate time . . . .” (Emphasis added.) The court then allowed defense counsel to address his objection. Defense counsel stated: “Thank you, Your Honor. . . . [O]bviously, it is a hearsay statement, and the court did give a limiting instruction as to that, but also . . . because there’s no mention of my client, who is the gentleman who’s on trial for these charges, that it would . . . not be directly relevant to him. And furthermore, because it did not express ... in any way, shape or form that [Bennet] was going to hang out with him. Further, and I think it’s attenuated in that there’s no conspiracy counts in the information, [Helmedach] is never named as coconspirator or anything else that . . . would imply . . . from . . . that [Bennet is] going to hang out with [Helmedach] that she was going to hang out . . . with my client in some fashion. So, because . . . there’s no conspiracy count, so, I mean there’s no named coconspirators. In none of the information ... is she specifically named, and she’s not on trial here. It’s my client who’s on trial. So, under those circumstances, while it may have been admissible at and may be, if [Helmedach] is tried, to her case, I’m objecting to it on both the hearsay and then further on the relevance grounds, and it is more prejudicial than probative, I should add.”

At no point did the defense attorney indicate that he did not agree with the court’s characterization of his objection to the evidence or indicate in any way that the defendant objected to Burton’s testimony regarding Bennet’s statements about past events. The prosecutor responded that the challenged testimony was relevant because the state had alleged that the defendant acted with another participant and that “the fact that the victim indicated that she was going to hang out with [Helmedach] is probative because it certainly would place the victim at a location where . . . Helmedach could be found, as well as [the defendant]. So, I think it goes to the weight, not to the admissibility of it.”

The court concluded that “the reasons stated by the [prosecutor] are adequate, and I endorse those as part of my . . . reasoning for allowing [the challenged testimony]. I would also note to you that clearly, that . . . evidence is a classic example of the admissibility of a declaration indicating a present intention to do a particular act in the immediate future. . . . The declar-ant told the witness that she was then going to go visit her girlfriend. I don’t think there’s any dispute that it was made in good faith and that there was no indication that it was made for any self-serving propose .... This is someone who is going to visit a girlfriend. The natural thing would be to tell her boyfriend, whom she had left, and there’s absolutely no indication that this was for any self-serving purpose. So, I think all those criteria have been met. I have given a cautionary instruction that it can be used only as evidence of her intent to make that visit .... I do not think there is any requirement that . . . the defendant be the one that was involved in that statement or as the person she was going to visit. ... It is relevant because it puts the declarant in a particular place at a particular time, and it’s her placement in connection with all the other evidence that relates to that, which is significant or the controlling factor ... at least in the felony murder count and in the robbery count .... [T]he probative value outweighs any potential prejudice, and for those reasons I did overrule your objection, and that is now on the record to protect your objection.”

As a preliminary matter, we must determine whether the defendant preserved his claim for appellate review. “[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial. ... In order to preserve an eviden-tiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted. . . .

“These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act. . . . Assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush. . . . State v. Cabral, 275 Conn. 514, 530-31, 881 A.2d 247, cert. denied, 546 U.S. 1048, 126 S. Ct. 773, 163 L. Ed. 2d 600 (2005); id., 531 (declining to review claim that tape-recorded statements were inadmissible under coconspirator hearsay exception when objection at trial was on different ground that listener was acting as agent of police when statements were made); see also Practice Book § 5-5. . . . State v. Simpson, 286 Conn. 634, 645-46, 945 A.2d 449 (2008); see also Council v. Commissioner of Correction, 286 Conn. 477, 498, 944 A.2d 340 (2008) ([A] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one .... For this court to . . . consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party.).” (Internal quotation marks omitted.) State v. Johnson, 289 Conn. 437, 460-61, 958 A.2d 713 (2008).

In the present case, the defendant failed to preserve the claim he now asserts. He properly preserved his claim that Burton should not be allowed to testify about Bennet’s future intentions on September 2, 2004, but failed to apprise the court of any objection to the admission of her statements about prior contact with Helmedach. The defendant argues that “though it was the second half of [Burton’s testimony] that predominated discussion at trial and on which the trial court instructed the jury, it defies common sense to presume that by the defendant’s objection, the court was not placed on notice that the first half of Burton’s answer . . . was also irrelevant hearsay.” It is clear from the record, however, that neither the court nor the prosecutor were made aware that the defendant’s objection extended to Burton’s testimony in its entirety. Accordingly, we decline to review the defendant’s first claim.

II

Second, the defendant claims that the court abused its discretion when it allowed Pekrul to testify about the Amber Alert issued by the Meriden police department. Specifically, the defendant claims that Pekrul’s testimony had minimal probative value, which was outweighed by its prejudicial impact. We agree but find the admission harmless.

On May 15, 2006, Pekrul testified, and the following exchange took place:

“[The Prosecutor]: Now, after those efforts were exhausted, checking those two ex-girlfriends, did you or other members of the Meriden police department cause to be issued an Amber Alert?
“[The Witness]: Yes, we did.
“[The Prosecutor]: Can you explain to the jury what that is?
“[Defense Counsel]: Objection, Your Honor, relevance to the — ”

The court then excused the jury and asked the prosecutor what his line of questions concerned. The prosecutor explained that Pekrul would testify that the Meriden police were looking for the defendant, Helmedach, her infant child and Bennet’s Chevrolet Blazer. Additionally, Pekrul would explain what an Amber Alert is, how it is issued and how information is given to the public. The prosecutor argued that it was relevant because the defendant, in his taped statement, indicated that he was aware that his name was “plastered all over the state” and that he fled as a result.

The prosecutor argued that the publicity generated by the Amber Alert and the defendant’s flight as a result was evidence of consciousness of guilt. The defendant argued that calling the publicity an “Amber Alert, then going into what this Amber Alert is all about . . . and upping the ante . . . appeals to the emotions of the jury, and . . . lacks direct relevance.” The defendant’s attorney suggested that the fact that “[the defendant’s information] was publicized ... is fair game, but . . . the characterization [as an Amber Alert] is where I believe that it crosses the border and seeks to put an emotion into this . . . case . . . .” The defendant agreed that the publicity was relevant but could be introduced without reference to the Amber Alert.

The court stated that the Amber Alert procedure is “basically a factual statement of what the police did to generate the notice that they were looking for the defendant. . . . [I]t certainly bears on subsequent staying away from the state if, in fact, that’s what the evidence indicates, and in moving from place to place. I don’t think it’s prejudicial. ... To the extent that you claim somehow it will generate prejudice in the eyes of the jury because they’re looking for a child, I don’t think that’s persuasive. It’s probative. . . . It’s relevant to consciousness of guilt, which is certainly a material issue, and I don’t think it generates the kind of prejudice that you are relying on. I think it’s relevant ... to a material issue. I think the . . . state’s entitled to show just what was ... in the public’s eye to reflect on consciousness of guilt, and I’m going to allow it.”

Pekrul testified before the jury that “ [a]n Amber Alert is issued specifically for when we have an issue regarding a child where we’ve — we believe that there’s a potential of a safety issue with the child and want to recover the child, find that child as quickly as possible, and it’s done through the state, and there are signs on the highways where they issue the vehicle description along with the plate and a description of the people involved, and hopefully we can find out where they— they are with the child at that point through that — that system.” Pekrul then testified regarding the recovery of Bennet’s Chevrolet Blazer and the child in East Orange, New Jersey.

The defendant claims that the court abused its discretion when it allowed Pekrul to testify about the Amber Alert issued by the Meriden police department. The defendant argues that the danger of unfair prejudice outweighed the probative value of the Amber Alert evidence and that its admission was harmful.

“The admissibility of evidence ... is a matter within the wide discretion of the trial court. ... On appeal, the exercise of that discretion will not be disturbed except on a showing that it has been abused.” (Internal quotation marks omitted.) State v. Akande, 111 Conn. App. 596, 612, 960 A.2d 1045 (2008). “When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. ... A nonconstitu-tional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Citation omitted; internal quotation marks omitted.) State v. Snelgrove, 288 Conn. 742, 758, 954 A.2d 165 (2008).

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. . . .

“Relevant evidence is excluded, however, when its probative value is outweighed by the danger of unfair prejudice. ... A determination regarding undue prejudice is a highly fact and context-specific inquiry. [T]he determination of whether the prejudicial impact of evidence outweighs its probative value is left to the sound discretion of the trial court. . . and is subject to reversal only [when] an abuse of discretion is manifest or injustice appears to have been done. . . .

“To be unfairly prejudicial ... [a] mere adverse effect on the party opposing admission of the evidence is insufficient. . . . Evidence is prejudicial when it tends to have some adverse effect [on] a defendant beyond tending to prove the fact or issue that justified its admission into evidence. . . . Trial courts must exercise their discretion cautiously in balancing the probative value of [the evidence] with any likelihood of undue prejudice to the defendant. . . . [I]n making its determination, the trial court should balance the harm to the state in restricting the inquiry with the prejudice suffered by the defendant in allowing the rebuttal. . . .

“Thus, we have recognized that [t]here are [certain] situations [in which] the potential prejudicial effect of relevant evidence would suggest its exclusion. These are: (1) where the facts offered may unduly arouse the jur[ors’] emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it. . . .

“Indeed [a]ll adverse evidence is [by definition] damaging to one’s case, but [such evidence] is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . Such undue prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous.” (Citations omitted; internal quotation marks omitted.) State v. Allen, 289 Conn. 550, 562-64, 958 A.2d 1214 (2008).

The defendant claims that the admission of the testimony about the Meriden police department’s issuance of an Amber Alert constituted an abuse of the court’s discretion. The defendant argues that the admission was harmful because it gave the jury the impression that he kidnapped Helmedach and her child, undercutting the theory of defense that Helmedach was responsible for murdering and robbing Bennet and that he confessed to protect her. We conclude that the court abused its discretion by allowing Pekrul to explain what an Amber Alert is. In light of the properly admitted evidence in this case, however, we conclude that the error was harmless.

The state argues that Pekrul’s testimony was “highly probative” of the defendant’s consciousness of guilt and police investigation techniques. The challenged testimony, however, was not that publicity was generated or how the police generated it, but Pekrul’s testimony that police believed there was a potential safety issue with Helmedach’s child and that they wanted to find the child as quickly as possible. Such testimony could have “unduly arouse[d] the jur[ors’] emotions, hostility or sympathy, [or] create[d] a side issue that . . . unduly distract[ed] the jury from the main issues . . . .” (Internal quotation marks omitted.) State v. Allen, supra, 289 Conn. 563. In addition, we can see no reason that fears over the child’s safety were relevant to proving the defendant’s guilt, other than the impermissible inference that the police thought the defendant was a dangerous man. Finally, the defendant conceded at trial that evidence of the publicity was relevant and argued that testimony that did not refer to the Amber Alert or the child’s safety could be admitted without objection. Thus, we conclude that Pekrul’s challenged testimony, the “extraneous” evidence, posed a risk of undue prejudice. See id., 564.

The defendant, however, has failed to persuade us that the brief testimony that the police were concerned with the safety of Helmedach’s child was ultimately harmful. The jury heard evidence that included (1) testimony about the discovery of Bennet’s grievously injured body, (2) a videotape of the bloody crime scene, (3) a photograph of a baby bottle near Bennet’s body, (4) testimony that infant formula was found near Bennet’s body, (5) testimony that a second, infant, victim was searched for at 16 Mosher Street, (6) testimony that the defendant and Helmedach fled the scene with a crying infant in Bennet’s stolen Chevrolet Blazer, (7) testimony that the defendant had left Helmedach’s child with a relative to prevent harm to her during the defendant’s arrest and (8) testimony that the child had been found without any injury. Additionally, the jury was presented with overwhelming, properly admitted evidence of the defendant’s guilt, including the bloodstains on his clothing that were attributable to Bennet, and his confession that he murdered Bennet in a manner consistent with the medical examiner’s findings. Thus, we are assured that the error did not substantially affect the verdict. See State v. Snelgrove, supra, 288 Conn. 758.

Ill

Finally, the defendant claims that the court improperly instructed the jury regarding consciousness of guilt. Specifically, the defendant claims that the court instructed the jurors that they had heard evidence that he fled from 16 Mosher Street and that the court deprived him of the right to have the jury decide whether his departure constituted flight and demonstrated consciousness of guilt. We disagree.

The court instructed the jury in relevant part: “When a person is on trial for a criminal offense, it is proper to show his conduct or statements subsequent to the alleged criminal offense, which may fairly have an influence by that act. As this rule applies to this case, the law recognizes that an accused’s flight, which, if a jury can reasonably conclude was done in an attempt to avoid detection of a crime or responsibility for a crime, is admissible against the accused as evidence reflecting that he was conscious of his own guilt. In this regard, you heard evidence that the defendant fled from 16 Mosher Street out of Connecticut into New York where he was apprehended. Whatever you find proven in this regard as to flight, if anything, and that depends on your assessment of the credibility of such evidence, must have been influenced by the criminal act and not by any other reason consistent with innocence.

“Flight is one type of conduct which may prove consciousness of guilt. The flight of a person accused of a crime is a circumstance, which, when considered together with all of the facts in the case, may justify a finding of guilt. However, flight, if shown, raises no presumption of guilt and is not conclusive. First, you must determine whether the state has proven any such flight. If so, and if you then find proven that the defendant did so in connection with these crimes, this does not raise a presumption of guilt. It is circumstantial evidence that you may or may not infer consciousness of guilt from. It is to be given the weight, if any, to which you think it is entitled to under the circumstances. It is up to you, as judges of the facts, to decide whether the state has proven any such flight, and if so, whether or not whatever has been proven reflects a consciousness of guilt by the defendant in connection with these alleged crimes and to consider such in your deliberations in conformity with these instructions.

“Under the same rule and with the same limitations, statements of the defendant made after the alleged crime may show consciousness of guilt. In this regard, the state has offered evidence of statements made by the defendant at the time of his apprehension in New York. The state claims that such statements reflect the defendant’s acknowledgement of his guilt. Again, whatever you find proven in regard to such statements, if anything, and that will depend on your assessment of the credibility of the evidence, must have been influenced by the criminal act and not by any other reason consistent with innocence. Even then such proven statement raises no presumption of guilt and is not conclusive. Again, first you must determine whether the state has proven any of such statements. If so, and if you then find proven that the defendant did so in connection with these crimes, this does not raise a presumption of guilt. It is circumstantial evidence and you may or may not infer consciousness of guilt from it. It is to be given the weight, if any, to which you think it is entitled to under the circumstances. It is up to you, as judges of the facts, to decide whether the state has proven any of such statements, and if so, whether or not whatever has been proven reflects a consciousness of guilt by the defendant in connection with these alleged crimes and to consider such in your deliberations in conformity with these instructions.”

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. . . .

“A jury charge in which the court removes from the jury’s consideration an issue that is one of the essential elements of the crime, and thereby relieves the state of the burden of proving every element beyond a reasonable doubt is improper. ... A proper instruction on flight as consciousness of guilt, however, merely identifies a permissive inference that the jury might draw from the defendant’s conduct. ... A consciousness of guilt instruction is, therefore, not so directly related to an essential element of the crime that an improper flight instruction raises constitutional implications. . . .

“If no constitutional issues are raised by the claim of an improper jury charge ... we review the entire charge to determine whether the instructions are correct in law and whether they presented the case to the jury so that no injustice would result. . . . [T]he charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.” (Citations omitted; internal quotation marks omitted.) State v. Crnkovic, 68 Conn. App. 757, 767-68, 793 A.2d 1139, cert. denied, 260 Conn. 925, 797 A.2d 521 (2002).

It is well established that “[t]he decision whether to give an instruction on flight, as well as the content of such an instruction, if given, should be left to the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Figueroa, 257 Conn. 192, 196, 777 A.2d 587 (2001). “[F]light, when unexplained, tends to prove a consciousness of guilt. . . . Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration. . . . The fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction on flight erroneous. . . . Moreover, [t]he court [i]s not required to enumerate all the possible innocent explanations offered by the defendant.” (Internal quotation marks omitted.) Id., 196-97.

The defendant challenges the following portion of the court’s instruction: “In this regard, you heard evidence that the defendant fled from 16 Mosher Street out of Connecticut into New York where he was apprehended.” (Emphasis added.) The defendant argues that the court “improperly instructed the [jurors] on how they should decide a material issue in the case, specifically, that [his] departure from Mosher Street was a ‘flight,’ and thereby advanced the jury one step further in its determination that the defendant’s conduct demonstrated his consciousness of guilt.” The defendant, however, fails to consider this instruction in context, as the jury heard it. Immediately following the challenged sentence, the court added: “Whatever you find proven in this regard as to flight, if anything, and that depends on your assessment of the credibility of such evidence, must have been influenced by the criminal act and not by any other reason consistent with innocence.” (Emphasis added.) The court repeatedly instructed the jurors that they must find that the state had proven flight before they could consider whether that flight was motivated by a consciousness of guilt of the alleged crimes. Thus, when read as a whole, the court’s instruction properly informed the jurors that the defendant’s consciousness of guilt was a permissive inference that they could draw from his conduct. See State v. Crnkovic, supra, 68 Conn. App. 767-68. Accordingly, we conclude that the court’s instructions were in accordance with the law and that the court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was also convicted of committing felony murder in violation of General Statutes § 53a-54c. The court merged the conviction of felony murder with the conviction of murder and sentenced the defendant only on his murder conviction.

       Tarini’s daughter occupied one bedroom, Fontanella and Kropp shared the second bedroom, and Tarini slept in the living room.

       Tarini was Helmedach’s neighbor when they both lived in Middletown.

       Baustien picked Helmedach out of a photographic array as the woman he had encountered.

       In front of the jury, Tarini again identified the defendant as Helmedach’s boyfriend and the visitor to her apartment from September 1 to September 2, 2004.

       Bennet and Helmedach resembled each other; when Fontanella was asked about a photograph of Helmedach, he testified that the woman “looks like Faye.”

       Streeter testified that the sneakers had no individualizing characteristics that would allow for him to determine that they “matched” the impression on the pillowcase.

       The bloodstains on the sneakers contained DNA from more than one individual. The expected frequency of individuals who could contribute to the DNA mixture on the left sneaker is approximately 1 in 60 for the African-American population, 1 in 30 for the Caucasian population and 1 in 45 for the Hispanic population. The expected frequency for the mixture on the right sneaker is approximately 1 in 605,000 for the African-American population, 1 in 63,000 for the Caucasian population and 1 in 151,000 for the Hispanic population.

       The expected frequency of individuals who could contribute to the DNA mixture on the jeans is approximately 1 in 1090 for the African-American population, 1 in 540 for the Caucasian population and 1 in 750 for the Hispanic population.

       This statistical frequency is the highest number that the laboratory will issue because it reflects the approximate population of Earth.

       The audiotaped confession was played for the jury and admitted as an exhibit.

       The defendant, seeing that each receipt had four numbers on it, thought that the four numbers were personal identification number codes for Ben-net’s credit cards.

       The defendant later tried to use Bennet’s credit cards in New Jersey.

       The defendant states that “[o]n appeal, [he] is not challenging Burton’s testimony regarding Bennet’s statements that she was going to spend time with Helmedach . . . .” (Emphasis in original.)

       See footnote 14.

       The court also stated that the defendant’s attorney could voir dire the witness if he chose to do so.

       We note that the defendant’s objection was only to the second question posed to Pekrul, in which Pekrul was asked to explain an Amber Alert, and not to the question regarding whether an Amber Alert was issued. Nor did the defendant make any motion to strike Pekrul’s testimony that an Amber Alert had been issued. To the extent, therefore, that the defendant relies on the emotions evoked by the mere use of the phrase “Amber Alert,” we decline to review his inadequately preserved claim.

       The state argues that the jury was not required to leave common sense at the door, essentially arguing that the description of an Amber Alert was an easy way to explain police techniques to the jury. We note, however, that prejudicial evidence may not be characterized as more probative than prejudicial simply because it is shorthand for the jury.

       The defendant argues that although he did not object to the court’s instruction, his claim is reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The state acknowledges, however, that the defendant objected to the charge because it “tends to highlight and muster evidence more favorable ... to the state, and by doing so it is more prejudicial to the defendant than is warranted . . . .” Accordingly, we will review the defendant’s claim because it was preserved properly at trial.


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    JSA FINANCIAL CORPORATION v. QUALITY KITCHEN CORPORATION OF DELAWARE ET AL.
    (AC 29045)
    Flynn, C. J., and DiPentima and Peters, Js.

      Argued October 29, 2008
    officially released March 3, 2009

      Peter C. Hunt, for the appellant (defendant Albert J. Salame).

      Robert J. Caffrey, for the appellee (plaintiff).
   Opinion

DiPENTIMA, J.

The defendant Albert J. Salame appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, JSA Financial Corporation. On appeal, the defendant claims that the court improperly concluded that (1) his obligations pursuant to a guarantee contract were extended by a partial payment made by the debtor, Quality Kitchen Corporation of Delaware (Quality Kitchen), and (2) he had abandoned the claim for an accounting. We disagree with both of the defendant’s claims and, accordingly, affirm the judgment of the trial court.

The parties submitted a joint stipulation of facts. On July 18,1989, Quality Kitchen executed a note for a line of credit in favor of UST/Bank Connecticut (UST Bank) in the original principal amount not to exceed $150,000. The terms of the note provided that it was payable with interest on demand but not later than July 18, 1990. On July 18, 1989, the defendant executed a contract in which he guaranteed repayment and performance of the note. The plaintiff subsequently became the holder of the note. Quality Kitchen admitted liability on the note but disputed the amount owed. The defendant, however, challenged the plaintiffs claim that he was liable under the guarantee.

On July 13, 2007, the court issued a memorandum of decision, setting forth the following factual findings and legal conclusions. The plaintiff commenced the present action on July 2, 2002, and a payment of $560.86 made by Quality Kitchen on or about November 19, 1996, tolled the statute of limitations as to Quality Kitchen. Additionally, the court determined that the terms of the guarantee contract obligated the defendant to repay the outstanding balance on the note. The court also rejected the special defense set forth by Quality Kitchen and the defendant that the note had been paid. The court rendered judgment in favor of the plaintiff against both Quality Kitchen and the defendant for the principal sum of $68,217.13, interest in the amount of $38,891.20 until March 8, 2007, with per diem interest of $10.90 and attorney’s fees in the amount of $30,000. This appeal followed.

I

The defendant first claims that the court improperly concluded that his obligations pursuant to the guarantee contract were extended by a partial payment made by Quality Kitchen. Specifically, he argues that the court never made a finding that he was aware of or consented to the acknowledgment of the debt and that absent this finding, it was improper to conclude that the statute of limitations had been tolled. We are not persuaded that such a finding was required in light of the terms of the guarantee contract. We therefore reject this claim.

The terms of the note for the line of credit stated that all amounts due were payable no later than July 18, 1990. The plaintiff did not commence the present action until July 1, 2002. Generally, there is a six year statute of limitations for bringing an action for nonpayment on a note. See General Statutes § 42a-3-118. The court found, however, that Quality Kitchen had sent a payment for interest on the note by way of a check dated November 19, 1996, in the amount of $560.86. The letter sent with the check indicated that the defendant also had received notice of this payment. Relying on Zapolsky v. Sacks, 191 Conn. 194, 198, 464 A.2d 30 (1983), the court found that this partial payment tolled the statute of limitations and rejected that special defense.

“The Statute of Limitations creates a defense to an action. It does not erase the debt. Hence, the defense can be lost by an unequivocal acknowledgment of the debt, such as a new promise, an unqualified recognition of the debt, or a payment on account. . . . Whether partial payment constitutes unequivocal acknowledgment of the whole debt from which an unconditional promise to pay can be implied thereby tolling the statute of limitations is a question for the trier of fact. . . .

“A general acknowledgment of an indebtedness may be sufficient to remove the bar of the statute. The governing principle is this: The determination of whether a sufficient acknowledgment has been made depends upon proof that the defendant has by an express or implied recognition of the debt voluntarily renounced the protection of the statute. . . . But an implication of a promise to pay cannot arise if it appears that although the debt was directly acknowledged, this acknowledgment was accompanied by expressions which showed that the defendant did not intend to pay it, and did not intend to deprive himself of the right to rely on the Statute of Limitations.” (Emphasis in original; internal quotation marks omitted.) Gianetti v. United Healthcare, 99 Conn. App. 136, 144, 912 A.2d 1093 (2007); see also Zapolsky v. Sacks, supra, 191 Conn. 198-99.

The defendant does not challenge the court’s finding that the November 19, 1996 payment tolled the statute of limitations as to Quality Kitchen. His claim on appeal is that the court failed to find that he was aware of or consented to this partial payment, and, therefore, the statute of limitations provided a valid defense as to his guarantee contract. We disagree.

“A guaranty is merely a species of contract.” Garofalo v. Squillante, 60 Conn. App. 687, 694, 760 A.2d 1271 (2000), cert. denied, 255 Conn. 929, 767 A.2d 101 (2001). We have explained that “a guarantee is a promise to answer for the debt, default or miscarriage of another. . . . The contract of guarantee is no doubt an agreement separate and distinct from the contract between the lender and the borrower.” (Citations omitted.) Regency Savings Bank v. Westmark Partners, 59 Conn. App. 160, 164, 756 A.2d 299 (2000); see also 38 Am. Jur. 2d 873, Guaranty § 2 (1999). The plaintiffs breach of contract action against the defendant carried a six year statute of limitations after the right of action accrued. Pelletier v. Galske, 105 Conn. App. 77, 80 n.l, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008); see also General Statutes § 52-576. To determine whether the action was commenced timely, we must examine the language of the guarantee contract.

The guarantee contract provides in relevant part that “[the defendant] further guarantee^] the punctual payment of all interest payable to said bank on account of said advancements or the instruments representing the same, and all legal and other expenses of collection; and the [defendant] hereby authorize [s] that said bank at any time and in such manner and upon such terms as it may see fit to extend the time for payment or to change the manner or terms of payment, or to accept renewals for or different evidences of indebtedness for any such advances as have been made or may hereafter be made to [Quality Kitchens] without any notice to the [defendant], and the [defendant] further agree[s] that such extension of time or the change in the manner or terms of payment or acceptance of renewals or different evidences of indebtedness shall not in any way release the [defendant] from or reduce [his] liability on this guarantee.'' (Emphasis added.) The contract further stated that it was a “continuing guarantee” and would “remain in full force and effect until written notice shall have actually been received by said bank that it has been revoked by the [defendant] . . . but such revocation shall not release the [defendant] . . . from any liability for any advances prior to the . . . revocation . . . .”

The court found that the language in the guarantee permitted the plaintiff to alter the time, manner and terms of repayment without notice to the defendant. As a result of this broad language, the court rejected the defendant’s claim that the statute of limitations had expired on July 18, 1996, six years after the maturity date of the note. We conclude that the court properly rejected the defendant’s statute of limitations defense.

We begin by setting forth the appropriate standard of review. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . When only one interpretation of a contract is possible, the court need not look outside the four comers of the contract. ... A court will not torture words to import ambiguity when the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Internal quotation marks omitted.) General Electric Capital Corp. v. Transport Logistics Corp., 94 Conn. App. 541, 545, 893 A.2d 467 (2006); see also WE 470 Murdock, LLC v. Cosmos Real Estate, LLC, 109 Conn. App. 605, 608-609, 952 A.2d 106, cert. denied, 289 Conn. 938, 958 A.2d 1248 (2008). In our view, the terms of the guarantee contract are clear and unambiguous. Specifically, we conclude that UST Bank and its successors were free to modify the terms of the repayment of the line of credit without the consent of the defendant and that such modification would not impact the defendant’s obligations. The interpretation of this contract, therefore, presents a question of law, subject to the plenary standard of review.

The defendant is correct that as a general rule, a payment made by the maker of a note that tolls the statute of limitations is ineffective as to a guarantor when the payment is made without the guarantor’s knowledge, authorization or consent. See Broadway Bank & Trust Co. v. Longley, 116 Conn. 557, 562-65, 165 A. 800 (1933); see generally Apuzzo v. Hoer, 125 Conn. 196, 199-200, 4 A.2d 424 (1939). In the present case, however, the terms of the guarantee contract provided that the holder of the note, the plaintiff and its predecessors, could modify the terms of repayment of the note without the consent or knowledge of the defendant and that such modifications would not in any way release or reduce his liability. It is established that “[specific contractual terms and intent, as opposed to general statements of law, control any agreement.” 38 Am. Jur. 2d 924, supra, § 65. Just as a guarantor, pursuant to the terms of the guarantee contract, may expressly limit his liability so as to exclude the costs of collection; see Boxed Beef Distributors, Inc. v. Rexton, Inc., 7 Conn. App. 555, 560, 509 A.2d 1060 (1986); a guarantor also may alter the terms of such a contract to provide the creditor with certain benefits.

We conclude that the court properly interpreted the guarantee contract and concluded that the plaintiff was free to modify the terms of the repayment of the line of credit. The express terms of that contract provide that any such modifications would not “in any way release the [defendant] from or reduce [his] liability on this guarantee.” As such, the court was not required to make a finding that the defendant was aware of the partial payment that tolled the statute of limitations as to the underlying negotiable instrument. The defendant expressly consented to the terms of the guarantee contract that permitted the plaintiff and its predecessors to change the repayment terms of the note and agreed that the guarantee would remain in full force and effect until the defendant revoked it. We will not allow the defendant to receive the benefit of his bargain but escape its risks when they arise. See Regency Savings Bank v. Westmark Partners, supra, 59 Conn. App. 167. Accordingly, we reject the defendant’s claim to the contrary.

n

The defendant next claims that the court improperly concluded that he had abandoned his claim for an accounting. Specifically, he argues that he set forth a counterclaim and a special defense seeking an accounting to determine whether the note in fact had been repaid and that the court failed to consider these claims. We disagree.

The following additional facts are necessary for the resolution of the defendant’s claim. UST Bank and Quality Kitchen entered into a agreement under which UST Bank would receive funds in a “lock box.” The court found that the funds received pursuant to this agreement would be deposited in two accounts, neither of which was the line of credit at issue in the present case. The lock box agreement did state that interest due to UST Bank from the line of credit “can, if you wish, be simultaneously automatically debited to [that] account.” The court found that this agreement was not intended to be a source of principal reduction. It further found the funds from the lock box did not repay the line of credit.

A

The defendant first argues that the court failed to consider the counterclaim seeking an accounting. On November 7, 2002, the defendant and Quality Kitchen filed an amended answer, special defenses and a counterclaim. The first counterclaim alleged that he and Quality Kitchen had made payments on the note and that an accounting was necessary to show the amount due, if any, to the plaintiff. On February 7, 2003, the defendant and Quality Kitchen revised, inter alia, the first counterclaim. On September 7, 2004, however, the defendant and Quality Kitchen filed a withdrawal of the counterclaim seeking an accounting.

“Construction of the effect of pleadings is a question of law and, as such, our review is plenary. . . . Pleadings are intended to limit the issues to be decided at the trial of a case and [are] calculated to prevent surprise. . . . [The] purpose of pleadings is to frame, present, define, and narrow the issues, and to form the foundation of, and to limit, the proof to be submitted on the trial . . . .” (Internal quotation marks omitted.) Young v. Vlahos, 103 Conn. App. 470, 476, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008); see also Kucej v. Town Clerk, 40 Conn. App. 692, 696, 673 A.2d 578 (1996). By withdrawing the counterclaim seeking an accounting, the defendant removed that issue from the case and cannot now claim that the court improperly failed to give it consideration. See Gaffey v. Gaffey, 91 Conn. App. 801, 804 n.l, 882 A.2d 715 (“[t]he [trial] court is not permitted to decide issues outside of those raised in the pleadings” [internal quotation marks omitted]), cert. denied, 276 Conn. 932, 890 A.2d 572 (2005); Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., 59 Conn. App. 194, 200, 756 A.2d 309 (2000) (same). Accordingly, we conclude that the defendant’s claim that the court improperly failed to consider the counterclaim seeking an accounting is without merit.

B

The defendant also argues that the court failed to consider the special defense seeking an accounting to show that the note had been repaid. Specifically, he contends that as a result of the court’s statement in its decision that it had addressed “the issues raised by the defendants’ posttrial brief dated March 23, 2007, and assumes that any other claims raised in the pleadings (if any) are abandoned,” the court improperly failed to address this issue in its decision. We disagree.

The defendant’s argument requires that we interpret the court’s written decision. “The construction of a judgment is a question of law for the court. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The judgment should admit of a consistent construction as a whole. . . . To determine the meaning of a judgment, we must ascertain the intent of the court from the language used and, if necessary, the surrounding circumstances.” (Citation omitted; internal quotation marks omitted.) Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759, 773-74, 890 A.2d 645 (2006); see also Perugini v. Devino, 111 Conn. App. 436, 444, 959 A.2d 1031 (2008).

The special defenses alleged that the defendant and Quality Kitchen had paid the debt created by the note in full or, in the alternative, that payments made had partially satisfied the amount owed. The court’s decision indicated that it had considered and rejected the claim that payments made via the lock box agreement had repaid the obligation under the note. It further found that it was not credible for the defendant to believe that the principal balance had been repaid from a source other than the lock box. We therefore conclude that the court did not fail to consider the special defenses.

The judgment is affirmed.

In this opinion the other judges concurred.

       Quality Kitchen is not involved in this appeal. We therefore refer to Salame as the defendant.

       We note that the joint stipulation of facts filed with the court states that the parties established the line of credit on June 18, 1989. The note itself, however, is dated July 18, 1989, and there is no dispute as to when the line of credit was established. We attribute the date used in the joint stipulation of facts as nothing more than a scrivener’s error.

       The defendant also agreed to pay all costs of collection and reasonable attorney’s fees.

       The plaintiffs posttrial brief was dated March 8, 2007.

       We note that “[i]n the case of a continuing guaranty, the statute [of limitations] does not commence to run in favor of a guarantor until there is a default in payment by the principal, and a cause of action has accrued against the former.” (Internal quotation marks omitted.) Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 745-46, 557 A.2d 525, on appeal after remand, 212 Conn. 322, 561 A.2d 436 (1989).

       We note that the defendant acknowledged in his brief that the terms of the guarantee were clear and unambiguous.

       We are mindful that a continuing guarantee “imposes liability upon a guarantor only for such period of time as is reasonable in light of all the circumstances of the particular case.” (Internal quotation marks omitted.) Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 742-43, 557 A.2d 525, on appeal after remand, 212 Conn. 322, 561 A.2d 436 (1989). Implicit in the court’s finding that the guarantee contract remained in effect is a determination of reasonableness.


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. DONALD M.

    (AC 28921)
    Bishop, McLachlan and Gruendel, Js.

      Argued January 5
    officially released March 10, 2009

      Robert E. Byron, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Paul N. Rotiroti, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

BISHOP, J.

The defendant, Donald M., appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), two counts of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A), two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A) and two counts of risk of injury to a child in violation of General Statutes § 53-21 (2). On appeal, the defendant claims that the trial court improperly admitted into evidence (1) constancy of accusation testimony and (2) portions of an interview of the victim under the medical treatment exception to the hearsay rule. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 24, 2004, the victim, who was ten years old at the time, was staying overnight at the home of the defendant, his wife and two daughters. The victim’s mother and the defendant’s wife had been lifelong friends, and, as a result, the victim had a long and close relationship with the defendant and his family. On that night, the victim arrived at the defendant’s home at approximately 7 p.m. The defendant’s wife left for work at about 9:30 p.m., leaving the defendant at home with their younger daughter and the victim. The defendant’s daughter went into the bathroom to take a shower. While the shower was running, the defendant pushed the victim onto the couch in the living room, tried to pull her shirt over her head, touched her breast and digitally penetrated her vagina. When the noise from the shower ceased, the defendant released the victim and told her not to speak of the incident, that it would “be a secret.”

A couple of days later, the victim told two classmates that she had been raped by the defendant. One of the classmates told her mother who, in turn, notified a school health aide. The health aide informed the department of children and families (department) of the victim’s accusation. Katherine Levy, an investigative social worker with the department, spoke with the victim, who informed her that the defendant had touched her chest, thighs and “privates.” Levy reported the matter to the police and arranged to have the victim interviewed at the child advocacy center at Saint Francis Hospital and Medical Center (hospital).

The defendant was charged with and convicted of one count of sexual assault in the first degree, two counts of sexual assault in the third degree, two counts of sexual assault in the fourth degree and two counts of risk of injury to a child. The defendant was sentenced to a total effective term of twenty years incarceration, execution suspended after fourteen years, seven years special parole, and twenty-five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly admitted constancy of accusation testimony. Specifically, the defendant contends that the constancy of accusation doctrine does not apply to children. The defendant also claims that the doctrine no longer applies because women now routinely serve as jurors. Because the defendant did not raise these claims at trial, we decline to review them.

Prior to trial, the defendant filed a motion in limine, objecting to the admission of constancy of accusation evidence on the ground that there had been no delay in the victim’s reporting of the alleged incident. Because there had been no reporting delay, the defendant argued, the admission of that testimony would be more prejudicial than probative. The defendant made the same objection during the trial following the state’s offer of proof regarding the constancy of accusation testimony. The court overruled the objection, and the state presented constancy of accusation testimony from the victim’s two classmates and Levy.

At no time did the defendant claim before the trial court that the constancy of accusation doctrine does not apply to children or that it should no longer apply because women now routinely serve as jurors. Although these claims were not preserved, the defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because, however, both of the defendant’s claims are evidentiary in nature, and not constitutional, the defendant fails to satisfy the second prong of Golding. See State v. Samuels, 273 Conn. 541, 562, 871 A.2d 1005 (2005).

n

The defendant also claims that the medical treatment exception to the rule against hearsay did not justify admitting into evidence the redacted videotape of the interview of the victim because the state failed to prove that the interview was with an individual within the chain of medical care and the record does not establish that the victim understood the interview to be part of a process for obtaining medical treatment. We disagree.

The following factual recitation is relevant to the resolution of the defendant’s claims. The defendant filed a motion in limine regarding the admissibility of evidence relating to a videotaped interview of the victim by Annabella Agudelo, a clinical child interview specialist at the hospital. The defendant argued that the evidence constituted hearsay and did not fall within the medical treatment exception to the hearsay rule. At the hearing on the defendant’s motion, Levy testified that the purpose of the interview at the hospital was to “assess [the victim] for psychological needs, therapy needs and also physically necessary needs.” She further testified that she told the victim the same thing that she typically tells other children who report sexual abuse, which was that “she’ll be going to [the hospital] to talk to a social worker or somebody who’s like me to talk about what she had told me; that it was the social worker’s job to make sure that she was safe and to give her any help in her therapy or to help her deal with what she went through; that we would also decide whether a doctor needed to look at her body if she had any worries about her body because of what happened.” Levy indicated that she told the victim that “based on her interview and what she tells us, there would also be a determination as to whether an appointment should be made at that same place for the doctor to see her” and “whether she would need therapy or somebody that she could talk to about what happened to her.” Levy testified that the victim had not expressed any medical needs but did indicate that she was worried about the consequences of reporting the abuse and was afraid of not being believed. Although a medical examination was not scheduled as a result of the interview, the victim and her family were referred to the Wheeler Clinic for therapy.

After the victim testified on direct examination, defense counsel cross-examined her outside the presence of the jury regarding the hospital interview. Although, for the most part, the victim recalled very little about the interview or its purpose, she did, at one point, answer affirmatively when asked whether she talked to Agudelo “for the purpose of obtaining medical treatment.”

Following further arguments by the parties, the court admitted a redacted version of the videotape into evidence. The court determined that the interview served a dual purpose in that the interview was conducted “in cooperation with the police to preserve a record of it so it could later be used.” The court found that when Levy told the victim the purpose of the interview, “the [victim] understood that [the interview] would play into the decisions about seeking counseling, seeking treatment and perhaps considering medical treatment” and that the purpose of the interview was to “establish whether or not she had needs, and the needs that she might have had were emotional or psychological or psychiatric . . . .” The court concluded that the victim’s statements during the hospital interview pertaining to the nature of the assault and the identity of the defendant fell within the medical treatment exception to the hearsay rule and were, therefore, admissible.

“To the extent a trial court’s admission of evidence is based on an interpretation of the [Connecticut] Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. They require determinations about which reasonable minds may not differ; there is no ‘judgment call’ by the trial court .... We review the trial court’s decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion.” (Citations omitted.) State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007) (en banc). Here, because neither party contends that the statements in the interview were not hearsay, we need only determine whether the court properly concluded that those statements fell within the medical treatment exception to the hearsay rule.

Section 8-3 of the Connecticut Code of Evidence (2000), which describes the medical treatment exception to the hearsay rule, provides in relevant part: “The following are not excluded by the hearsay rule, even though the declarant is available as a witness ... (5) ... A statement made for purposes of obtaining medical treatment or advice pertaining thereto and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical treatment or advice.” In other words, the admissibility of out-of-court statements made by a patient to a medical care provider depends on whether the statements were made for the purposes of obtaining medical diagnosis or treatment. State v. Kelly, 256 Conn. 23, 44, 770 A.2d 908 (2001). The rationale for excluding from the hearsay rule statements made in furtherance of obtaining treatment is that “we presume that such statements are inherently reliable because the patient has an incentive to tell the truth in order to obtain a proper medical diagnosis and treatment.” State v. Cruz, 260 Conn. 1, 10, 792 A.2d 823 (2002). The term “medical” encompasses psychological as well as somatic illnesses and conditions. State v. Wood, 208 Conn. 125, 133-34, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). Statements made by a sexual assault complainant to a social worker may fall within the exception if the social worker is found to have been acting within the chain of medical care. State v. Cruz, supra, 10.

Here, the defendant contends that because Agudelo did not testify that she had any medical training or that she worked with a multidisciplinary team of medical providers, she was not within the chain of medical care. Agudelo testified that she had a bachelor’s degree in psychology and a master’s degree in social work, and the videotape reveals that Agudelo spoke with the victim about counseling and a possible medical appointment with a physician. It is, therefore, evident that the purpose of the interview was, at least in part, to determine whether the victim was in need of medical treatment. On that basis, we conclude that Agudelo was acting within the chain of medical care.

The defendant also claims that the victim did not know that the purpose of the interview was to determine whether she needed medical treatment. Although the victim testified that she did not recall the purpose of the interview, this requirement maybe satisfied inferentially in matters involving juveniles. State v. Telford, 108 Conn. App. 435, 442, 948 A.2d 350, cert. denied, 289 Conn. 905, 957 A.2d 875 (2008). As noted, Levy testified that she told the victim that she would be meeting with someone at the hospital who would help her deal with what she went through and determine whether she needed therapy or other medical treatment. Accordingly, it was reasonable to infer that the victim was aware of the medical purpose of the interview.

On the basis of the foregoing, we conclude that the court properly ruled that the victim’s statements were admissible under the medical treatment exception to the rule against hearsay.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 6-11 (c) of the Connecticut Code of Evidence provides: “A person to whom a sexual assault victim has reported the alleged assault may testify that the allegation was made and when it was made, provided the victim has testified to the facts of the alleged assault and to the identity of the person or persons to whom the assault was reported. Any testimony by the witness about details of the assault shall be limited to those details necessary to associate the victim’s allegations with the pending charge. The testimony of the witness is admissible only to corroborate the victim’s testimony and not for substantive purposes.”

       Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.


author: BEACH, J.

text:
    LEO ANTONINO ET AL. v. G. THOMAS JOHNSON
    (AC 29131)
    Flynn, C. J., and Beach and West, Js.
    Argued December 4, 2008
    officially released March 10, 2009

      James R. Winkel, for the appellant (named defendant).

      Jeffrey F. Buebendorf with whom was Aimee L. Wickless, for the appellees (plaintiffs).
   Opinion

BEACH, J.

The defendant, G. Thomas Johnson, appeals from the judgment of foreclosure by sale rendered in an action brought by the plaintiffs, Leo Anton-ino and Alvin J. Schechter, trustee. On appeal, the defendant claims that the trial court improperly (1) determined that written notice was not a prerequisite of the foreclosure action and (2) granted the plaintiffs’ motion for the appointment of a receiver of rents. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendant’s claims. The plaintiffs commenced this foreclosure action following the defendant’s default in payment of a mortgage note in the amount of $1,539,000. The action was commenced in November, 2005, and concerned property located at 618 Poquonnock Road in Groton. On or about December 20,2005, the defendant filed a chapter 11 bankruptcy petition in the United States Bankruptcy Court for the District of Connecticut at New Haven. On or about April 13, 2007, the plaintiffs’ motion for relief from the bankruptcy stay was granted by the Bankruptcy Court. In June, 2007, the plaintiffs filed a motion for summary judgment. On July 23, 2007, the court, Devine, J., granted the plaintiffs’ motion for summary judgment and on August 6, 2007, rendered judgment of foreclosure by sale. The court ordered that the subject property be sold at a foreclosure sale on September 29, 2007, and found the debt to be $1,776,588.61 and the fair market value of the property to be $2 million. Attorney’s fees were found to be $20,663.

On August 23, 2007, the defendant filed an appeal from the judgment of foreclosure by sale. In response to the committee’s motion for advice, on September 7, 2007, the court, Martin, J., ordered that the pending foreclosure sale should be stayed. On September 12, 2007, the plaintiffs filed a motion for the appointment of a receiver of rents to protect their interest in the subject property during the pendency of the appeal, pursuant to Practice Book § 21-20. In support of this motion, the plaintiffs noted that the defendant owed the town of Groton $102,465.12 for municipal property taxes and sewer charges and that on April 10, 2007, the defendant obtained a second mortgage loan in the amount of $304,000. The defendant objected to the plaintiffs’ motion. Judge Martin granted the plaintiffs’ motion on October 15, 2007. On October 18, 2007, the defendant filed an amended appeal, adding the issue of the granting of the plaintiffs’ motion for the appointment of a receiver of rents.

I

As to the motion for summary judgment, the defendant argues that the court incorrectly determined that notice was not required prior to instituting the foreclosure action. Because the plain language of the mortgage note indicates otherwise, we disagree.

We begin by setting forth the applicable standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of [a] trial court’s decision to grant [a] defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) LaPenta v. Bank One, N.A., 101 Conn. App. 730, 736, 924 A.2d 868, cert. denied, 284 Conn. 905, 931 A.2d 264 (2007).

A promissory note is a written contract for the payment of money, and, as such, contract law applies. SKW Real Estate Ltd. Partnership v. Gallicchio, 49 Conn. App. 563, 574, 716 A.2d 903, cert. denied, 247 Conn. 926, 719 A.2d 1169 (1998). In construing an unambiguous contract, the controlling factor is the intent expressed in the contract, “not the intent which the parties may have had or which the court believes they ought to have had.” (Internal quotation marks omitted.) Robinson v. Weitz, 171 Conn. 545, 551, 370 A.2d 1066 (1976). “Where . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. ... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) De Leonardis v. Subway Sandwich Shops, Inc., 35 Conn. App. 353, 357, 646 A.2d 230, cert. denied, 231 Conn. 925, 648 A.2d 162 (1994). “The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity.” (Internal quotation marks omitted.) Sturman v. Socha, 191 Conn. 1, 11-12, 463 A.2d 527 (1983).

The relevant language in the note is as follows: “Each of the following events shall be deemed to be an ‘Event of Default’ hereunder: (a) Failure by Grantor to pay (i) any periodic installment of interest or principal which shall become due and payable under the Note; or (ii) the outstanding principal balance on the Note, together with interest accrued thereon, at final or accelerated maturity or upon prepayment of the Note; or (iii) taxes and assessment or insurance premiums when due; or (iv) any other sums to be paid by Grantor hereunder or under any other instrument securing the Note, when due hereunder or thereunder; or (b) If default shall be made in due observance or performance of any other covenant or condition on the part of Grantor under this Mortgage Deed, the Note or any other document evidencing or securing the loan transaction which is the subject thereof, and such default shall have continued for a period of fifteen (15) days after written notice specifying such default and demanding that the same be remedied shall have been given to the Grantor by the Grantee, provided that if such default has not been cured but Grantor has commenced and proceeded diligently with good faith efforts to cure, said cure period shall be extended for such additional time, not exceeding forty-five (45) days as is reasonably necessary to effectuate such cure . . . .”

The language of the note is clear and unambiguous. It differentiates between monetary defaults in subsection (a) and nonmonetary defaults in subsection (b) and provides for notice of default and an opportunity to cure only with reference to the latter. The default in this case was for failure to make payments as promised. There was no obligation to provide notice of default. See Alco Standard Corp. v. Charnas, 56 Conn. App. 568, 572, 744 A.2d 924 (2000).

Because the note did not require prior notice of default for failure to make payment and an opportunity to cure, there was no genuine issue of material fact, and summary judgment as to liability was rendered properly.

II

The defendant’s second claim is that the court improperly granted the plaintiffs’ motion for the appointment of a receiver of rents. We disagree.

“An action of foreclosure is peculiarly equitable and the court may entertain all questions which are necessary to be determined in order that complete justice may be done between the parties.” Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 175, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). “The application for a receiver is addressed to the sound legal discretion of the court, to be exercised with due regard to the relevant statutes and rules, and such exercise is not to be disturbed lightly nor unless abuse of discretion or other material error appears.” Chatfield Co. v. Coffey Laundries, Inc., 111 Conn. 497, 501, 150 A. 511 (1930).

Our courts have considered a number of equitable factors when deciding whether to appoint a receiver of rents, including: (1) whether waste or loss is occurring; Hartford Federal Savings & Loan Assn. v. Tucker, supra, 196 Conn. 175; (2) the risk to the foreclosing party that he will recover less than the full amount of his debt, that is, whether the deficiency is certain or only threatened; e.g., Prudential Ins. Co. of America v. Calabrese, Superior Court, judicial district of Waterbury, Docket No. CV-95-0127550-S (August 11, 1995) (15 Conn. L. Rptr. 13); and (3) whether there are provisions in lending documents that allow or require the appointment of a receiver in the event of the mortgagor’s default; Jewett City Savings Bank v. Weiss, Superior Court, judicial district of Windham, Docket No. CV-96-0053937-S (November 21, 1996) (holding that when mortgage deed permits appointment of receiver and there is likely deficiency after foreclosure, court may grant motion to appoint receiver); see also Cross v. O’Neil, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-02-0189033-S (December 6, 2002) (33 Conn. L. Rptr. 449); Webster Bank, N.A. v. Belinda Co., Superior Court, judicial district of New Britain, Docket No. CV-05-4004042-S (February 16, 2006).

Applying these factors to the present case, Judge Martin found that the defendant owed the town of Gro-ton approximately $100,000 for municipal property taxes and sewer charges and that the amount was increasing and noted that a tax foreclosure action had been initiated. On this basis, the court concluded that loss to the plaintiffs was occurring. Next, the court considered whether a deficiency was likely. The court noted that “the majority of properties sold at foreclosure are typically quick or duress sales, which generate a pinchase price below fair market value . . . .” The court also noted that the property was valued at $2 million and the defendant’s debt, including the unpaid taxes and the attorney’s fees, was approximately $1.9 million, with approximately $372 of additional debt accruing each day. On the basis of those facts, the court concluded “with substantial certainty that the plaintiffs will be unable to collect the full amount of their debt from the foreclosure of the property.” Finally, with regard to the third factor, the court quoted a portion of the mortgage deed and security agreement that expressly permitted the appointment of a receiver of rents.

The court considered each of the equitable factors and, having done so, determined that the appointment of a receiver of rents was appropriate. We conclude that the court did not abuse its discretion in granting the plaintiffs’ motion.

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

In this opinion the other judges concurred.

       The record discloses that Walter Johnson also was a defendant on the basis of the lis pendens he filed on the land records. This appeal is brought only by G. Thomas Johnson, to whom we refer as the defendant.

       The defendant brought to the court’s attention that a hearing in a foreclosure action commenced by the town was scheduled to be held nine days after oral argument and suggested that this appeal may be moot. That representation alone does not compel us to believe that no practical relief can be granted. See State v. T.D., 286 Conn. 353, 361-62, 944 A.2d 288 (2008).

       Paragraph ten of the mortgage deed and security agreement entitled “Receiver,” states: “The Grantee in any action to foreclose this mortgage, or immediately upon the actual or imminently threatened waste to any part of the Mortgaged Premises, or immediately upon the occurrence of a default by the Grantor under the Mortgage, shall be at liberty to apply for the appointment of a receiver of rents and profits of the Mortgaged Premises, and shall be entitled to the appointment of such receiver as a matter of right, without consideration of the value of the Mortgaged Premises as security for the amounts due to the Grantee, or the solvency of any person or corporation liable for the payment of such amounts.”