text:
    BILLY JACKSON v. COMMISSIONER OF CORRECTION
    (AC 31996)
    Gruendel, Beach and Pellegrino, Js.
    Argued March 8
    officially released June 7, 2011

      Rosemarie T. Weber, special public defender, for the appellant (petitioner).

      Linda Currie-Zeffiro, assistant state’s attorney, for the appellee (respondent).
   Opinion

BEACH, J.

The petitioner, Billy Jackson, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion by denying his petition for certification to appeal and that it erroneously rejected his claim that his trial counsel rendered ineffective assistance. The petitioner specifically claims that his trial counsel was ineffective in failing to object to the court’s instruction to the jury on self-defense because the instruction contradicted and undermined his defense of actual innocence that was argued throughout trial. We disagree and, accordingly, dismiss the petitioner’s appeal.

The facts underlying the petitioner’s conviction were set out in State v. Jackson, 95 Conn. App. 400, 896 A.2d 137, cert. denied, 279 Conn. 904, 901 A.2d 1226 (2006). “On the evening of September 21, 2002, the [petitioner] was at an establishment in Bridgeport called the Small Games Club (club). The victim, Terry Mooney, and his friend, Troy Robinson, were also at the club. Sometime during the course of the evening, the victim was carrying some drinks from the bar to rejoin his friends when he bumped into the [petitioner]. The club’s bouncer noticed the incident and, later, when he heard the victim and the [petitioner] arguing in the bathroom, escorted the [petitioner] out of the club. The [petitioner] remained outside the club. When the bar closed, the victim went outside to meet Robinson. The victim overheard the [petitioner], who was still outside the club, talking about him. The victim approached the [petitioner], whereupon an argument began. The victim saw the [petitioner] reach into his pants and, thinking that the [petitioner] was going to pull out a gun, punched the [petitioner]. A fight developed between the two men, during which the victim was shot in the right thigh. The [petitioner] then got up and shot Robinson. Robinson and the victim struggled with the [petitioner]. The [petitioner] fired again, and the bullet struck the victim in his right shoulder. At some point, it became apparent that the gun was no longer operable, whereupon the victim and Robinson left.” Id., 403.

A jury found the petitioner guilty of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (5), attempt to commit assault in the first degree in violation of §§ 53a-49 and 53a-59 (a) (5), and criminal possession of a firearm in violation of General Statutes § 53a-217 (a). Id., 402. The court sentenced the petitioner to a total effective term of twenty years imprisonment. Id., 403. The petitioner appealed to this court from the judgment of conviction, which we affirmed in State v. Jackson, supra, 95 Conn. App. 400.

On May 30, 2008, the petitioner filed an amended petition for a writ of habeas corpus alleging that he was denied effective assistance of trial counsel. A habeas trial was held on January 22,2010. The petitioner testified that his defense during his criminal trial was that he was not the shooter; rather, he contended that Robinson accidentally shot the victim during the altercation. The petitioner further testified that he had informed his trial counsel that he did not want the court to instruct the jury on self-defense because he thought it would undermine his claim of actual innocence. The petitioner’s trial counsel testified that the court raised the issue of self-defense sua sponte and that, based on the evidence presented at trial, he thought that there was sufficient evidence to provide for an instruction on self-defense. The petitioner’s trial counsel further testified that he believed that allowing the court to instruct the jury on self-defense was tactically sound because if the jury did not believe the petitioner’s primary defense of actual innocence, it afforded the petitioner an extra defense that the state had the burden of disproving.

The court issued an oral decision denying the petition for habeas corpus, concluding that there was “no problem with presenting inconsistent and alternative theories of defense. . . . The fact that [trial counsel] did not object to a self-defense instruction is a good trial strategy because ... it gave the jury an alternative theory if they believed the state’s evidence to acquit [the petitioner]. ... I cannot find that the decision to . . . not object to the self-defense instruction was deficient performance.” The petitioner subsequently filed a petition for certification to appeal, which the habeas court denied on February 5, 2010. This appeal followed.

“The standard of review and legal principles that govern the resolution of the petitioner’s appeal are well settled. In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Petty v. Commissioner of Correction, 125 Conn. App. 185, 187, 7 A.3d 411 (2010), cert. denied, 300 Conn. 903, 12 A.3d 573 (2011). “In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous.” (Internal quotation marks omitted.) Ankerman v. Commissioner of Correction, 122 Conn. App. 246, 250, 999 A.2d 789, cert. denied, 298 Conn. 922, 4 A.3d 1225 (2010).

“To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. Morant v. Commissioner of Correction, 117 Conn. App. 279, 301, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Furthermore, [i]n a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities.” (Emphasis in original; internal quotation marks omitted.) Griffin v. Commissioner of Correction, 119 Conn. App. 239, 242, 987 A.2d 1037, cert. denied, 295 Conn. 912, 989 A.2d 1074 (2010). “Because the petitioner must satisfy both prongs of the Strickland test to prevail on a habeas corpus petition, this court may dispose of the petitioner’s claim if he fails to meet either prong.” (Emphasis in original; internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 124 Conn. App. 740, 744, 6 A.3d 152 (2010).

After a careful review of the record, we conclude that the court properly determined that the petitioner’s trial counsel acted reasonably. Here, the petitioner has failed to satisfy the first prong of Strickland. The habeas court found that trial counsel’s decision to allow the trial court to instruct the jury on self-defense was “good trial strategy” and that there is “no problem with presenting inconsistent and alternative theories of defense.” Such a conclusion is consistent with our case law. State v. Nathan J., 294 Conn. 243, 262, 982 A.2d 1067 (2009) (“it is axiomatic that a defendant may present inconsistent defenses to the jury”); State v. Person, 236 Conn. 342, 349, 673 A.2d 463 (1996) (“[t]he fact that one defense is on the theory that [the] accused did not commit the offense . . . does not deprive him of the right to avail himself of other defenses” [internal quotation marks omitted]). Additionally, it is well established that “[t]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency.” (Internal quotation marks omitted.) Levine v. Manson, 195 Conn. 636, 648, 490 A.2d 82 (1985). Therefore, trial counsel’s decision to not object to the court’s instruction to the jury on self-defense did not constitute deficient performance and, thus, the petitioner’s claim fails under the first prong of Strickland.

The petitioner has not demonstrated that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616. The court, therefore, did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The amended petition also alleged that the petitioner was denied effective assistance of appellate counsel. At the habeas trial, however, the petitioner withdrew this claim.

       “[U]nder our Penal Code . . . the state has a burden of persuasion regarding a self-defense claim: it must disprove the claim beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Riggsbee, 112 Conn. App. 787, 794, 963 A.2d 1122 (2009).

       We note that the petitioner’s trial counsel devoted almost all of his closing argument to the proposition that the petitioner was not the shooter. At the very conclusion, when notified that he almost was out of time, trial counsel stated: “And also consider His Honor’s instruction on self-defense. That creates an additional burden. Can I just mention that, Your Honor?” After a brief exchange with the court, trial counsel concluded: “My client didn’t do what was testified to that night. He deserves a verdict of not guilty as to all charges. Thank you very much.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. VERLE ROBINSON
    (AC 32305)
    DiPentima, C. J., and Bishop and SchaUer, Js.

      Argued March 15
    officially released June 7, 2011

      Joseph M. Merly, with whom, on the brief, was John R. Williams, for the appellant (defendant).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Lion, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Verle Robinson, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A), and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and (2). On appeal, the defendant claims that his right of confrontation under the sixth amendment to the United States constitution was violated when (1) a state’s witness gave certain testimony under the constancy of accusation doctrine and (2) the trial court improperly excluded the testimony of a defense witness. We affirm the judgment of the court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. In July, 2007, the victim, J, was thirteen years old and lived across the street from the defendant. J was close friends with the defendant’s two daughters, S and H. After S, H and the defendant moved from Middletown to Meriden, J was invited to a sleepover at their new home on July 13, 2007. J eventually fell asleep alone in S’s room with the door closed, and S slept on the couch in the living room. J was wearing underwear, shorts, a sports bra and a tank top. Sometime during the early morning hours of July 14, 2007, J woke up and found the defendant beside her wearing only his boxer shorts. The defendant told J to roll over onto her back and then climbed on top of her, placing his legs inside of hers and holding her wrists against the bed with his hands. The defendant asked J if she had ever had sex before. J replied “no” and told the defendant to get off her. The defendant then began to rub his penis up and down against J’s vagina. J continued to tell the defendant to get off her but did not scream because she was afraid that the defendant would hurt her. The defendant then asked J if he could “stick it in.” J replied “no.” After five to twenty-five minutes, the defendant kissed J on the cheek and told her that she was a beautiful girl. The defendant also told J that she should not tell anyone about what had happened. The defendant then got off J and left the room.

Shortly after the assault occurred, J sent a text message to S explaining what had happened and then went to the couch and woke S up to tell her in person. Thereafter, S telephoned her aunt, M, and told her what had happened. J then spoke with M and told her what had happened. At trial and after J had testified, the state called M as a witness under the constancy of accusation doctrine, and, in pertinent part, she gave the following testimony:

“[The Prosecutor]: Did you receive a telephone call from [S] back in July of 2007?
“[M]: Yes I did.
“[The Prosecutor]: Do you recall the particular date by any chance?
“[M]: Ah, I think it was on a Saturday, to the best of my knowledge.
“[The Prosecutor]: When you received the call from [S], what was her demeanor, what did she sound like on the phone?
“[M]: She was crying hysterically.
“[The Prosecutor]: Do you know why she was crying hysterically?
“[M]: She was crying hysterically because [J] had text[ed] her that [S’s] father had touched her.”

After the state rested, the defendant called both S and H as witnesses. H testified that after the incident, J wrote her once over the Internet on the social website Myspace.com (MySpace). The defendant’s counsel then asked what J had written, and the state objected to such testimony as hearsay. The defendant’s counsel argued that the statement was admissible as a statement by a party opponent. See Conn. Code Evid. § 8-3 (1). The court, however, concluded that J was not a party to the case and, consequently, determined that the testimony was inadmissible hearsay. After he rested his case, the defendant was found guilty by the jury, and the court rendered judgment in accordance with the jury’s verdict. The defendant was sentenced to a total effective term of twenty years imprisonment, execution suspended after thirteen years, and ten years of probation. This appeal followed.

I

The defendant first claims that his right of confrontation under the sixth amendment to the United States constitution was violated when M was permitted to testify under the constancy of accusation doctrine. The defendant concedes that he did not object to M’s testimony at trial and now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that the defendant’s claim fails under the second prong of Golding

“In Connecticut, it is well established that the constancy of accusation doctrine does not violate a defendant’s sixth amendment right to confrontation.” (Internal quotation marks omitted.) State v. Thompson, 71 Conn. App. 8, 13, 799 A.2d 1126 (2002). Recognizing this well established principle, the defendant acknowledges that M’s testimony with respect to her conversation with J was not a violation of his right of confrontation because J previously had testified at trial and was subjected to cross-examination. He contends, however, that his right of confrontation was violated when M testified to statements made to her by S relating what J told S after the assault. The defendant argues that, although S later testified at trial, his right of confrontation was violated because S testified as a defense witness, and, thus, he was unable to cross-examine her. The defendant’s argument is misguided.

The confrontation clause of the sixth amendment to the United States constitution guarantees a criminal defendant the right “to be confronted with the witnesses against him . . . .” U.S. Const., amend. VI. “A significant aspect of the right of confrontation is the cross-examination of adverse witnesses to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the [witnesses].” (Emphasis added; internal quotation marks omitted.) State v. Monteeth, 208 Conn. 202, 209, 544 A.2d 1199 (1988). The state did not call S as a witness, and when she eventually testified for the defendant, she gave testimony favorable to him. Although the defendant was unable to “cross-examine” S because she was not an adverse witness, his counsel did ask S about the telephone call she made to M after the assault. Thus, S was available to explain the circumstances of that telephone call. “The [confrontation] [c]lause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” (Internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 78, 889 A.2d 921, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006). Under these circumstances, the defendant’s right of confrontation was not violated. Accordingly, the defendant’s claim of error is evidentiary in nature and must fail under Golding's second prong. See State v. Claudio C., 125 Conn. App. 588, 598, 11 A.3d 1086 (2010) (“The defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim .... [0]nce identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed.” [Internal quotation marks omitted.]), cert. denied, 300 Conn. 910, 12 A.3d 1005 (2011).

II

The defendant next claims that his sixth amendment right of confrontation was violated when the trial court excluded H from testifying to an out-of-court statement that J allegedly made to H. Specifically, the defendant asserts that the right to offer into evidence the prior inconsistent statements of a prosecution witness is guaranteed by the sixth amendment right of confrontation, and he argues that the court violated his right of confrontation when it prevented H from testifying to the statement J allegedly made to H through the social website MySpace. The defendant concedes, as he must, that this claim was not preserved at trial and seeks review by this court pursuant to State v. Golding, supra, 213 Conn. 239-40. We conclude that the defendant’s claim fails under Golding's first prong.

As a preliminary matter, we note that the defendant’s claim is more aptly characterized as a claim involving his sixth amendment right to present a defense. “[A] defendant’s right to present a defense does not include a right to present evidence that properly is excluded under the rules of evidence. . . . The sixth amendment to the United States constitution require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The defendant’s sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . Generally, [a defendant] must comply with established rules of procedure and evidence in exercising his right to present a defense.” (Internal quotation marks omitted.) State v. Abreu, 106 Conn. App. 278, 282, 941 A.2d 974, cert. denied, 286 Conn. 919, 946 A.2d 1249 (2008). “[I]f the proffered evidence is not relevant [or constitutes inadmissible hearsay], the defendant’s right to confrontation is not affected, and the evidence was properly excluded.” (Internal quotation marks omitted.) State v. Davis, 298 Conn. 1, 10, 1 A.3d 76 (2010).

The defendant claims that the testimony he sought to elicit from H was admissible because it was a prior inconsistent statement of J, the victim. The record before us, however, does not contain the content of the statement. Without the content of the statement, we are unable to determine if the statement was properly excluded as hearsay or if, as the defendant claims, its preclusion stripped him of his constitutional right to present a defense. See State v. Smith, 219 Conn. 160, 164, 592 A.2d 382 (1991). Thus, the record is inadequate to assess the defendant’s claim, and, accordingly, it is unreviewable under the first prong of Golding.

The judgment is affirmed.

       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 identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       Pursuant to State v. Golding, supra, 213 Conn. 239-40, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.)

       See footnote 2 of this opinion.

       “The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . .” (Citation omitted; internal quotation marks omitted.) State v. Brown, 273 Conn. 330, 338, 869 A.2d 1224 (2005). The defendant was afforded an opportunity to cross-examine J at trial, and he does not claim on appeal that his cross-examination was unduly restricted or constitutionally deficient.


text:
    SUZANNE E. BUBROSKY v. HARRISON A. BUBROSKY
    (AC 32784)
    Gruendel, Robinson and Espinosa, Js.

      Considered April 27
    officially released June 7, 2011

      Steven D. Ecker and M. Caitlin S. Anderson, in support of the motion.

      Robert S. Broder, in opposition to the motion.
   Opinion

PER CURIAM.

The defendant, Harrison A. Bubrosky, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Suzanne E. Bubrosky, and entering related financial orders. Over the defendant’s objection, the plaintiff moves to dismiss the defendant’s appeal as amended, claiming that the defendant’s behavior demonstrates a pattern of contemptuous conduct in deliberate defiance of numerous court orders. See Greenwood v. Greenwood, 191 Conn. 309, 464 A.2d 771 (1983). We agree and, accordingly, dismiss the defendant’s appeal as amended.

The following facts and procedural history are relevant. The parties’ marriage was dissolved on September 16, 2010. At the time of the divorce, the court ordered that, inter alia, the defendant pay the plaintiff $22,000 in monthly alimony and $686 in weekly child support. Additionally, the court ordered that the defendant appear in court once a month to provide updates on his search for full-time employment. On September 21, 2010, the court issued a clarified and corrected decision, from which the defendant appealed on October 4, 2010. Subsequently, on October 27, 2010, the court made several awards of attorney’s fees, in addition to its prior corrected decision, and the defendant filed an amended appeal on October 28, 2010.

On December 6, 2010, the plaintiff filed a motion for contempt, claiming that the defendant secretly had moved to Florida and had failed to comply with the court’s orders of alimony and child support. The court granted the plaintiffs motion for contempt, entered an incarceration order without prejudice with a purge amount of $24,974.98 and issued a capias on the basis of the defendant’s failure to appear.

On January 6, 2011, the defendant again failed to appear, at which point the court heard testimony from the plaintiff regarding the defendant’s repeated behavior in violation of the court’s financial orders and the parties’ parenting plan. Given the plaintiffs testimony, the court entered three findings of contempt against the defendant.

On March 1, 2011, the court heard additional testimony from the plaintiff regarding the defendant’s ongoing failure to abide by the court’s financial orders and the parties’ parenting plan. On the basis of this testimony, the court, on March 3, 2011, entered five orders finding the defendant in contempt, bringing the total number of contempt orders against him to nine.

The plaintiff now moves to dismiss the defendant’s appeal in light of his contemptuous conduct. Specifically, the plaintiff claims that the defendant’s persistent contemptuous conduct demonstrates a manifest disregard and deliberate defiance of the court’s orders. We agree.

Pursuant to Greenwood v. Greenwood, supra, 191 Conn. 313, this court has discretion to dismiss an appeal where the appellant is in contempt of the orders of the trial court. See also Broderick v. Broderick, 20 Conn. App. 145, 146, 565 A.2d 3 (1989). Both this court and our Supreme Court, however, have only dismissed appeals in extreme cases, where there was clearly a calculated and continued pattern of contemptuous behavior in defiance of the authority of the courts of this state. See Greenwood v. Greenwood, supra, 309; Mark v. Mark, 40 Conn. App. 171, 669 A.2d 579 (1995).

“This court and our Supreme Court have considered a number of factors in determining whether an appeal should be dismissed due to the contemptuous conduct of the appellant. Some of those factors include the number of times the appellant was held in contempt, whether it is likely [that] the appellant will continue to frustrate any order of the court that may be issued in connection with the same matter, whether the appellant has appeared when summoned to court, and whether the appellant has ever purged himself of the contempt.” Mark v. Mark, supra, 40 Conn. App. 176-77.

In the present case, the defendant has been found to be in wilful contempt of the court’s orders nine times since the filing of this appeal. Moreover, the defendant has not amended his appeal to challenge these contempt findings. It is undisputed that the defendant has not physically appeared in the trial court at any time subsequent to October, 2010. Finally, there is nothing in the record to indicate that the defendant will comply with additional orders issued by this court or any court of this state. Although the defendant has recently retained new counsel to pursue his appeal, such behavior is woefully inadequate to remedy his repeated failure to appear when summoned before the trial court. Accordingly, on the basis of the factors utilized by this court to determine whether an appeal should be dismissed because of an appellant’s contemptuous conduct, we fail to see any justification for allowing the defendant’s appeal to continue.

The appeal is dismissed.

       Although unemployed at the time of the parties’ divorce, the court determined that the defendant’s earning capacity was $750,000.

       Specifically, the plaintiff explained that the defendant had contacted the parties’ three minor children in an attempt to undermine the plaintiffs relationship with them. The plaintiff also testified that the defendant had not exercised his right to visitation with the children since the beginning of December, 2010.


text:
    STATE OF CONNECTICUT v. JAMES B.

    (AC 31502)
    Bishop, Alvord and Pellegrino, Js.

      Argued March 16
    officially released June 7, 2011

      Jodi Zils Gagne, for the appellant (defendant).

      Theresa Anne Ferryman, senior assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (state).

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

   Opinion

PER CURIAM.

The defendant, James B., appeals from the trial court’s judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly denied his (1) motion to suppress and (2) motions for a judgment of acquittal. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In January, 2008, the Norwich police department received a report from the department of children and families (department) of a sexual assault of a minor female. The victim had reported the assault at a therapy session, which was relayed by a therapist to the department. The victim was interviewed at her school by Damon Wallace, a Norwich police officer, and Timothy Donahue, a department investigator. During the interview, the victim disclosed that her father, the defendant, had sexually assaulted her from the time she was five years old. Subsequently, Wallace and Donahue went to the defendant’s home to speak with the defendant, who invited them into the home. During their conversation, which occurred in the living room, the defendant stated that he had suffered a brain injury that affected his long-term memory, and, therefore, he could neither confirm nor deny the incidents that had been reported by his daughter. A week later, Wallace and Donahue again interviewed him at the Norwich police station. Thereafter, the defendant was charged in a three count information with two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and one count of risk of injury to a child in violation of § 53-21 (a) (2).

At trial, the victim testified that numerous incidents of sexual contact had occurred between her and the defendant. The defendant testified that he had not made the alleged statements regarding his memory and that the allegations against him were false. According to the defendant, the victim had fabricated the alleged incidents because he had forbidden her from seeing her friend with whom she had a lesbian relationship at that time. At the close of the state’s case, the court granted the defendant’s motion for a judgment of acquittal as to the first count of sexual assault in the first degree because the victim’s testimony alone was not sufficient to prove that charge. On April 20, 2009, the jury returned a verdict of not guilty on the second count of sexual assault in the first degree but found the defendant guilty of risk of injury to a child. The court sentenced the defendant to fifteen years incarceration, suspended after ten years, with ten years probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to suppress. According to the defendant, he was not read his Miranda rights while he was interviewed in his living room and while “in custody,” and his statements to Wallace and Donahue were not voluntary. The trial court rejected both arguments, finding that the defendant was not in custody for purposes of Miranda and that his statements were voluntary. We agree with the trial court.

We first set forth the applicable standard of review. “Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Owen, 126 Conn. App. 358, 363, 10 A.3d 1100, cert. denied, 300 Conn. 921, 14 A.3d 1008 (2011).

“To determine whether a suspect is in custody so as to require Miranda warnings, we inquire whether a reasonable person, in view of all the circumstances, would have believed that he or she was not free to leave. . . . The term interrogation under Miranda is not limited to questioning explicitly designed to elicit an incriminating response but extends to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from a suspect.” (Internal quotation marks omitted.) State v. Brown, 118 Conn. App. 418, 433, 984 A.2d 86 (2009), cert. denied, 295 Conn. 901, 988 A.2d 877 (2010).

We conclude that, in light of the trial court’s findings, it was reasonable for the court to conclude that the defendant was not in custody for purposes of Miranda when he was questioned by Wallace and Donahue at his home. We find nothing in the record to indicate that the defendant was questioned in a manner that would lead him to believe that he was in custody. The trial court found that both Wallace and Donahue were dressed in civilian clothes and invited into the home by the defendant. The interview itself lasted less than one hour and included no threats of arrest or conduct by either Wallace or Donahue that would lead to a reasonable conclusion that the defendant was in custody. The conversation occurred in the defendant’s own living room, and, at one point, the defendant left the room to go speak with his fiancée. On the basis of the facts of the present case, we conclude that the defendant was not in custody within the meaning of Miranda.

We further conclude that the court properly determined that the defendant’s statements to Wallace and Donahue were voluntary. Although the court acknowledged that the defendant suffered from several ailments, he is a middle-aged man with a high school education. The interview itself was not lengthy, prolonged or intense, and there is nothing in the record to indicate that any threats of physical punishment or denial of food or sleep had occurred. Thus, in light of the entire factual record viewed as a whole, it was reasonable for the court to conclude that the defendant’s statements were voluntary.

II

The defendant also claims that the court improperly denied the defendant’s motions for a judgment of acquittal because there was not sufficient evidence to convict him of the charged offense. We disagree.

We first set forth our standard of review. “The standard of review [that] we [ordinarily] apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Cook, 287 Conn. 237, 254, 947 A.2d 307, cert. denied, 555 U.S. 970, 129 S. Ct. 464, 172 L. Ed. 2d 328 (2008).

The defendant was convicted of one count of risk of injury to a child in violation of § 53-21 (a) (2). The jury heard testimony from multiple witnesses who addressed each element of the alleged charge. On appeal, the defendant argues that the jury could not have concluded as it did because the jury had no physical evidence before it, only the testimony of witnesses. The defendant’s argument, “although couched in the language of a sufficiency of the evidence claim, actually attacks the witness credibility determinations made by the jury in reaching its ultimate conclusions about the case. Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . Inconsistencies in testimony and witness credibility are matters that are within the exclusive purview of the jury to resolve at trial.” (Citation omitted; internal quotation marks omitted.) State v. James P., 96 Conn. App. 93, 98, 899 A.2d 649, cert. denied, 280 Conn. 910, 908 A.2d 540 (2006).

After a careful review of the record, viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the state adduced sufficient evidence upon which the court properly denied the defendant’s motions for a judgment of acquittal.

The judgment is affirmed.

       Although § 53-21 was amended by No. 07-143, § 4, of the 2007 Public Acts, those amendments have no bearing on the merits of this appeal. For convenience, we refer to the current revision of the statute.

       The defendant moved for a judgment of acquittal following the close of the state’s case and again at the close of evidence.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


author: SCHALLER, J.

text:
    MICHEL MORAN v. RICKY A. MORNEAU ET AL.
    (AC 31699)
    DiPentima, C. J., and Bishop and Schaller, Js.
    Argued March 15
    officially released June 7, 2011

      John-Henry M. Steele, for the appellant (plaintiff).

      Sean P. Clark, for the appellee (defendant Chase Home Finance, LLC).
   Opinion

SCHALLER, J.

In this foreclosure action, the court rendered judgment of foreclosure by sale and, prior to either the sale or the rendering of a supplemental judgment, determined the parties’ priorities with respect to the subject property. The sole issue to be decided in this appeal is whether the trial court’s determination of priorities is an appealable final judgment. We conclude that it is not and, accordingly, dismiss the appeal.

The following facts and procedural history are relevant to this appeal. The defendant Ricky A. Momeau owns the subject property commonly known as 399 Main Street in Portland. The plaintiff, Michel Moran, commenced this action seeking to foreclose on a judgment lien that she holds on the property. In the operative complaint, the plaintiff alleged that on July 17,2003, she recorded a “[njotice [r]e: [c]onstructive [t]rust 1/2 [o]wnership” of the subject property on the Portland land records. She obtained a prejudgment attachment against the property in the amount of $54,000, which she recorded on the land records on May 28, 2004. The plaintiff prosecuted a successful breach of contract action against Momeau and was awarded a monetary judgment in the principal amount of $63,061, plus interest. She recorded the judgment hen on the land records on February 15, 2006.

The defendant Chase Home Finance, LLC (Chase), is the assignee of and successor in interest to a promissory note and mortgage deed in the original principal amount of $185,000, which was recorded on the Portland land records on August 22, 2003. The defendant JPMorgan Chase Bank, N.A. (JPMorgan), holds a note secured by a second mortgage in the original principal amount of $50,000, which was recorded on the land records on February 10, 2005. The plaintiffs position is that both the attachment and the judgment hen relate back to the July, 2003 “[njotice [r]e: [constructive [t]mst 1/2 [ojwnership,” which would give her claim priority over that of both Chase and JPMorgan.

On September 14, 2009, the court rendered a judgment of foreclosure by sale and set the sale date for November 21, 2009. Thereafter, Chase filed a motion to determine the priorities of the parties’ interests in the subject property. In its motion, Chase represented that, due to the apparent lack of equity in the property to satisfy ah of the interest sought to be foreclosed, adjudication of the priority issue prior to the sale was critical. The court heard oral argument on Chase’s motion. At the court’s request, Chase and the plaintiff each filed proposed findings of fact and proposed orders. On November 16, 2009, the court issued notice that it adopted the findings of fact and priorities based on Chase’s proposed orders. In so doing, the court found that the plaintiffs claim did not relate back to the July, 2003 “[n]otice [r]e: [c]onstructive [t]rust 1/2 [o]wnership” that she filed on the land records because there was no legal or statutory basis for such filing. Accordingly, Chase’s interest, recorded in August, 2003, was given first priority in right. The plaintiffs interest followed by virtue of the notice of attachment that she had recorded in May, 2004. JPMorgan’s claim, recorded in February, 2005, followed.

The plaintiff filed the present appeal contesting the court’s determination of the parties’ priorities and, in light of the pending appeal, the court cancelled the sale. Chase moved this court to dismiss the appeal on the ground that the trial court’s ordering of the parties’ priorities was not an appealable final judgment. We denied the motion to dismiss without prejudice and allowed the parties to address the final judgment issue in their briefs on the merits.

The plaintiff claims that the order determining the priorities of the parties is an appealable final judgment because the order so concludes the rights of the parties that further proceedings cannot affect them. Specifically, she claims that she would suffer an irreparable loss of her right to first priority. She argues that, as the party with second priority, should she bid successfully for the property at the foreclosure sale, she would take title to it subject to Chase’s mortgage. Should another party prevail, Chase’s interest would be paid in full before she received any payment at all. She maintains that the combined value of her judgment lien and the debt owed to Chase exceeds the equity in the property. Accordingly, she argues that her challenge to the trial court’s order, which subordinated her interest to that of Chase, is necessary to prevent an irreparable loss of her right to challenge the determination of priorities. She argues, therefore, that the order constitutes an appealable final judgment. We disagree.

We begin by setting forth our standard of review. “The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a question of law [over which we exercise plenary review].” (Internal quotation marks omitted.) Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 651-52, 954 A.2d 816 (2008).

As our Supreme Court has explained: “To consider the [plaintiffs] claims, we must apply the law governing our appellate jurisdiction, which is statutory. . . . The legislature has enacted General Statutes § 52-263, which limits the right of appeal to those appeals filed by aggrieved parties on issues of law from final judgments. Unless a specific right to appeal otherwise has been provided by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim. . . . Further, we have recognized that limiting appeals to final judgments serves the important public policy of minimizing interference with and delay in the resolution of trial court proceedings.” (Citations omitted; internal quotation marks omitted.) Id., 652-53.

“This court has determined [however] that certain interlocutory orders are to be treated as final judgments for purposes of appeal. To determine whether an order should be treated as such, we apply a two-pronged test: An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, [191 Conn. 27, 31, 463 A.2d 566 (1983)]. Unless an order can satisfy one of these two [Curdo] prongs, the lack of a final judgment is a jurisdictional defect that necessitates dismissal of the appeal.” (Internal quotation marks omitted.) Palmer v. Friendly Ice Cream Corp., 285 Conn. 462, 467-68, 940 A.2d 742 (2008).

The issue in the present case is whether the order from which the plaintiff appeals satisfies the second prong of Curdo. “[F]or an interlocutory ruling in either a criminal or a civil case to be immediately appealable under the second prong of Curdo, certain conditions must be present. There must be (1) a colorable claim, that is, one that is superficially well founded but that may ultimately be deemed invalid, (2) to a right that has both legal and practical value, (3) that is presently held by virtue of a statute or the state or federal constitution, (4) that is not dependent on the exercise of judicial discretion and (5) that would be irretrievably lost, causing irreparable harm to the appellants without immediate review.” (Internal quotation marks omitted.) Wells Fargo Bank of Minnesota, N.A. v. Jones, 85 Conn. App. 120, 125, 856 A.2d 505 (2004). “[E]ven when an order impinges on an existing right, if that right is subject to vindication after trial, the order is not appealable under the second prong of Curdo. . . . [T]here is a small class of cases [that] meets the test of being effectively unreviewable on appeal from a final judgment and [that], therefore, is subject to interlocutory review.” (Citations omitted; internal quotation marks omitted.) Hartford Acddent & Indemnity Co. v. Ace American Reinsurance Co., 279 Conn. 220, 231-32, 901 A.2d 1164 (2006).

The plaintiff claims that her right to first priority with respect to the subject property is in jeopardy. A discussion of judgments in the foreclosure by sale process is helpful here. “The purpose of the judicial sale in a foreclosure action is to convert the property into money and, following the sale, a determination of the rights of the parties in the funds is made, and the money received from the sale takes the place of the property.” National City Mortgage Co. v. Stoecker, 92 Conn. App. 787, 794, 888 A.2d 95, cert. denied, 277 Conn. 925, 895 A.2d 799 (2006). In a foreclosure by sale, there are typically three appealable determinations: the judgment ordering a foreclosure by sale, the approval of the sale by the court and the supplemental judgment. See Glenfed Mortgage Corp. v. Crowley, 61 Conn. App. 84, 88-89, 763 A.2d 19 (2000); D. Caron & G. Milne, Connecticut Foreclosures (4th Ed. 2004) § 17.04, p. 391; see also, e.g., Antonino v. Johnson, 113 Conn. App. 72, 73, 966 A.2d 261 (2009) (appeal from judgment of foreclosure by sale); LaSalle Bank, N.A. v. Randall, 125 Conn. App. 31, 32-33, 6 A.3d 175 (2010) (appeal from judicial confirmation of sale); City National Bank v. Traffic Engineering Associates, Inc., 166 Conn. 195, 196-97, 348 A.2d 637 (1974) (appeal from supplemental judgment).

As to the first determination, “a judgment of foreclosure constitutes an appealable final judgment when the court has determined the method of foreclosure and the amount of the debt.” Danzig v. PDPA, Inc., 125 Conn. App. 254, 261, 11 A.3d 153 (2010), cert. denied, 300 Conn. 920, 14 A.3d 1005 (2011). In the present case, the court rendered a judgment of foreclosure by sale and found the amount of the plaintiffs debt on September 14, 2009. The plaintiff did not appeal from that judgment.

As to the second appealable determination, the court’s approval of a sale serves as “the final determination by the court that the mortgaged property was sold at a fair price . . . .” (Internal quotation marks omitted.) National City Mortgage Co. v. Stoecker, supra, 92 Conn. App. 800. An order approving a foreclosure sale operates to cut off the owner’s right of redemption; Willow Funding Co., L.P. v. Greencom Associates, 63 Conn. App. 832, 837-38, 779 A.2d 174 (2001); and the rights of redemption of other parties. National City Mortgage Co. v. Stoecker, supra, 795. Accordingly, there can be no doubt of the finality of an order approving a foreclosure sale. D. Caron & G. Milne, supra, § 17.04B, p. 392. In the present case, the sale has not yet occurred.

A third appealable determination occurs in the foreclosure by sale process when the court renders a supplemental judgment. “Pursuant to General Statutes § 49-27, entitlement to proceeds of the sale, and the amount of such entitlements, is to be determined by the court in a supplemental proceeding after the sale has been ratified by the court.” Voluntown v. Rytman, 27 Conn. App. 549, 556, 607 A.2d 896, cert. denied, 223 Conn. 913, 614 A.2d 831 (1992). Our Supreme Court has long recognized that the decree of foreclosure by sale should not adjudicate the rights of the parties to the fund or funds realized; rather, such rights should be determined by way of a supplemental judgment. Gault v. Bacon, 142 Conn. 200, 203, 113 A.2d 145 (1955); City National Bank v. Stoeckel, 103 Conn. 732, 744, 132 A. 20 (1926). “[A] foreclosure by sale furnishes conflicting claimants an ideal forum for litigating their differences without prejudicing prior encumbrancers. Clearly, a resolution of such issues provides the very raison d’etre of supplemental judgment proceedings.” D. Caron & G. Milne, supra, § 8.02B, p. 188. When the order of priorities is disputed, the court typically considers the issue on the appropriate motion of the parties, usually after the sale is ratified by the court. See id., § 8.01, p. 187; id., § 17.04C, p. 393.

In the present case, the court rendered prior to the sale a decision determining the parties’ priorities. Because no sale has taken place, the court’s ordering of priorities is interlocutory until a sale is approved and the court renders a supplemental judgment. The plaintiff argues that this order constitutes an appealable final judgment in the present case because, given that the priorities have been determined and the equity is insufficient to satisfy both judgments, further proceedings cannot affect her rights. We appreciate the plaintiffs argument that she will be at a disadvantage when planning her bidding strategy for the subject property. We note that, in the event that the judicial sale generates proceeds sufficient to satisfy her judgment hen, even if her claim remains subordinated to Chase’s claim, further proceedings, such as the court’s approval of the sale, can affect her rights.

Moreover, a number of conditions must be present for an interlocutory order to be appealable under the second prong of Curdo, including the requirement that the right the plaintiff seeks to vindicate is presently held by her and is not dependent on the exercise of judicial discretion. A judicial sale converts the subject property into money. The right that the plaintiff seeks to vindicate in this appeal is her claim to first priority to the proceeds from the sale of the property. This case presents an unusual situation in which the trial court ordered the parties’ priorities after rendering a judgment of foreclosure by sale but prior to any sale occurring. In view of the court’s broad equitable powers in a foreclosure action; Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982); we do not conclude that it is per se improper to determine the issue of priorities at that juncture. Because the very raison d’etre of supplemental judgment proceedings is to determine issues of priority, however, we see no reason why the plaintiff could not, upon filing the appropriate motion, properly ask the trial court to reconsider the question of priorities after the sale and prior to the rendering of a supplemental judgment. Regardless of whether she chooses to do so, her claim to first priority is subject to vindication in a timely appeal from the rendering of a supplemental judgment. Despite the interlocutory ruling by the trial court, neither party will have the benefit of an appellate ruling on the propriety of that order.

Because she has not had the opportunity to obtain a ruling of this court, her claim to first priority is subject to the exercise of the trial court’s discretion. For the foregoing reasons, the interlocutory order determining the priority of the parties is not appealable under the second prong of Curdo. Accordingly, the lack of a final judgment requires us to dismiss the appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       This court affirmed the judgment and award of damages in Moran v. Morneau, 100 Conn. App. 169, 917 A.2d 1003 (2007), cert. denied, 289 Conn. 953, 961 A.2d 420 (2008).

       A promissory note and mortgage deed in favor of Webster Bank in the principal amount of $185,000 was recorded on August 22,2003. This mortgage was later assigned to Chase, which assignment was recorded on December 20, 2006.

       The plaintiffs remaining claims on appeal go to the merits of whether her judgment lien taires first priority in right. Because we conclude that the plaintiff has not appealed from a final judgment, we do not address these claims.

       Citing Chase Home Finance, LLC v. Morneau, Superior Court, judicial district of Middlesex, Docket No. CV-07-5002946-S, the plaintiff maintains that Chase has commenced a separate action in which it seeks to foreclose on its interest in the subject property that is pending in the Superior Court.

       General Statutes § 52-263 provides: “Upon the trial of all matters of fact in any cause or action in the Superior Court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.”

       By way of contrast, the strict foreclosure process typically presents only one judgment or ruling that is properly appealable, the judgment of strict foreclosure, because the effect of strict foreclosure is to vest title to the real property absolutely in the mortgagee, and to do so without any sale of the property. D. Caron & G. Milne, Connecticut Foreclosures, supra, § 17.04, p. 391; National City Mortgage Co. v. Stoecker, supra, 92 Conn. App. 793. Any motion for the determination of priorities in a strict foreclosure action must be filed prior to the rendering of judgment. Practice Book § 23-17 (a).

       The plaintiff did not file a timely appeal from the judgment of foreclosure by sale. She appeals from the postjudgment order in which the court determined the parties’ priorities. Nonetheless, the plaintiff maintains that it would “appear” that she has appealed from a final judgment because the court determined the method of foreclosure and the amount of debt. This argument misses the point. The fact that an appealable final judgment has occurred in a case does not, by itself, render a subsequent interlocutory order immediately appealable.

       General Statutes § 49-27 provides in relevant part: “The proceeds of each such sale shall be brought into court, there to be applied if the sale is ratified, in accordance with the provisions of a supplemental judgment then to be rendered in the cause, specifying the parties who are entitled to the same and the amount to which each is entitled. . . .”


author: GRUENDEL, J.

text:
    MARCIA IELLO v. MICHAEL WEINER ET AL.
    (AC 32345)
    DiPentima, C. J., and Gruendel and Beach, Js.
    Argued April 12
    officially released June 7, 2011

      David H. Johnson, for the appellant (jplaintiff).

      Beverly S. Knapp, for the appellee (named defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Marcia Iello, appeals from the summary judgment rendered by the trial court in favor of the defendant Michael Weiner. On appeal, the plaintiff claims that the court improperly concluded that her action was time barred by the applicable statute of limitations and could not be saved under General Statutes § 52-593. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. On September 4, 2003, the plaintiff commenced a dental malpractice action against Kenneth Epstein, her former dentist, and Family Dental Group, P.C. (Family Dental) (first action). The first action against Epstein was based solely on a theory of negligence and related to Epstein’s postoperative treatment of the plaintiff following dental surgery. On January 30, 2006, the plaintiff voluntarily withdrew the first action in its entirety.

On January 17, 2007, the plaintiff commenced this action against the defendant and Family Dental (second action), claiming that the second action, although not brought within the applicable statute of limitations, was saved by § 52-593. As with the first action, the second action against the defendant was based solely on a theory of negligence and related to the defendant’s postoperative treatment of the plaintiff following the same dental surgery referred to in the first action. Notably, the plaintiff conceded that both Epstein and the defendant provided postoperative care to her following her dental surgery.

Subsequently, both the defendant and Family Dental filed separate motions for summary judgment, arguing, inter alia, that § 52-593 could not save the plaintiffs second action from being time barred by General Statutes § 52-584. In support of his motion, the defendant claimed, inter alia, that because both the first action and the second action alleged negligence in the postoperative treatment provided by Epstein and the defendant, respectively, and because the plaintiff conceded that both Epstein and the defendant provided postoperative care to her, the plaintiff had in fact named a “right person” in her first action, as that term is used in § 52-593. Therefore, the defendant argued that § 52-593 was inapplicable, as Epstein was a proper defendant for the legal theory of negligence alleged by the plaintiff in the first action.

On February 19, 2010, the court issued a memorandum of decision granting summary judgment in favor of Family Dental but denying summary judgment in favor of the defendant. In so ruling, the court concluded that, inter aha, “[a]though the plaintiff admits that both [Epstein] and [the defendant] treated her postoperatively, the defendants have not shown that any of the specifications of negligence in [the first action] were properly directly against Epstein.” Following the defendant’s motion for reargument, however, the court, on May 5, 2010, vacated its previous ruling of February 19, 2010, rendering summary judgment in favor of the defendant on the basis of this court’s decision in Billerback v. Cerminara, 72 Conn. App. 302, 805 A.2d 757 (2002). This appeal followed.

The plaintiff now claims that the court improperly granted summary judgment in favor of the defendant on the basis of Billerback. Although we conclude that Billerback is factually distinguishable from the case at bar, we nonetheless affirm the judgment of the court.

Before addressing the merits of the plaintiffs claim, we begin by setting forth the applicable standard of review and legal principles governing our analysis. “We exercise plenary review over a trial court’s decision to grant a motion for summary judgment. . . . Pursuant to Practice Book § 17-49, 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. ... A material fact is a fact which will make a difference in the result of the case.” (Citation omitted; emphasis omitted; internal quotation marks omitted.) Krevis v. Bridgeport, 80 Conn. App. 432, 434-35, 835 A.2d 123 (2003), cert. denied, 267 Conn. 914, 841 A.2d 219 (2004).

“Under Connecticut law, a right person, as that term is used in § 52-593, is one who, as a matter of fact, is a proper defendant for the legal theory alleged.” (Emphasis in original; internal quotation marks omitted.) Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 8, 882 A.2d 597 (2005), Moreover, “the plaintiffs failure to name all of the defendants from whom she could have recovered in her original action does not constitute a failure to name the right person as defendant within the meaning of ... § 52-593.” (Emphasis in original; internal quotation marks omitted.) Id., 11.

Here, our plenary review of the record confirms that the legal theory alleged in the first action was negligence—specifically, negligence in the postoperative treatment provided by Epstein. Because the plaintiff concedes that Epstein provided postoperative treatment to her, it is true, as a matter of fact, that Epstein was a proper defendant for the legal theory of negligence alleged by the plaintiff in her first action. Although it may be the case that the plaintiffs failure to name the defendant as a defendant in the first action was a benign oversight, our law is clear that “[t]he fact that the complaint in the plaintiffs original action failed to name all potentially hable defendants is immaterial.” Id., 10. Also, the fact that the specific allegations of negligence directed originally against Epstein were more appropriately pleaded against the defendant does not alter our resolution of the plaintiffs claim on appeal. Because the plaintiffs first action, premised on a theory of negligence, was brought against a “right person,” § 52-593 is inapplicable and cannot save the plaintiffs second action from being time barred by § 52-584. Accordingly, the plaintiffs claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       Initially, the plaintiff filed a claim in this action against, and the court granted summary judgment in favor of, Family Dental Group, P.C. On appeal, the plaintiff challenges only the court’s summary judgment in favor of the defendant Michael Weiner. As such, we confine our analysis to the issues raised by the court’s granting of summary judgment in favor of Weiner. We therefore refer to Weiner as the defendant in this opinion.
      We note also that, although counsel for the defendant has advised this court that the defendant’s name correctly is spelled “Wiener,” because the pleadings in this case reflect the spelling of the defendant’s name as “Weiner,” we use that spelling in this opinion.

       It is undisputed that the plaintiffs cause of action against the defendant is governed by the two year statute of limitations set forth in General Statutes § 52-584. Additionally, the plaintiff concedes that if her action against the defendant is not saved by General Statutes § 52-593, it is timed barred pursuant to § 52-584.

       General Statutes § 52-593 provides in relevant part: “When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action. ...”

       Indeed, the operative complaint in the first action is nearly identical to the operative complaint in the second action. The complaint in the second action merely added an additional allegation of negligent conduct against the defendant and elaborated on a previous allegation of negligence brought originally against Epstein.

       The fact that the court relied on Billerback to render summary judgment in favor of the defendant does not alter our analysis of the plaintiffs claim, because while Billerback is distinguishable from the present case, it is well settled that this court “can sustain aright decision although it may have been placed on a wrong ground.” (Internal quotation marks omitted.) Fennelly v. Norton, 103 Conn. App. 125, 142, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007).

       In reaching this determination, we are mindful of the issues raised and briefed by the parties as to whether the voluntary withdrawal of an action brought initially against an incorrect defendant qualifies as the failure to obtain judgment for purposes of applying the savings provision of § 52-593. In this regard, we note that the important policy reasons underlying the utilization of § 52-593 may not be consistent with the current state of our law on this issue, particularly this court’s decision in Cogan v. Chase Manhattan Auto Financial Corp., 83 Conn. App. 843, 844-45, 851 A.2d 407 (2004), aff'd, 276 Conn. 1, 882 A.2d 597 (2005). For purposes of resolving this appeal, however, we need not address the merits of this inconsistency.


text:
    QUENTIN STEPNEY v. COMMISSIONER OF CORRECTION
    (AC 31748)
    DiPentima, C. J., and Bishop and Espinosa, Js.

      Submitted on briefs April 15
    officially released June 7, 2011

      Gennaro Bizzarro, special public defender, filed a brief for the appellant (petitioner).

      Scott J. Murphy, state’s attorney, and John A. East III and Angela R. Macchiarulo, senior assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Quentin Stepney, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying certification to appeal from the judgment of the habeas court and (2) improperly concluded that he had received effective assistance of counsel. We dismiss the appeal.

In an amended petition filed June 5, 2009, the petitioner set forth a claim, inter alia, of ineffective assistance of counsel. The petitioner had been convicted of sexual assault in the first degree, sexual assault in the second degree and risk of injury to a child. He alleged that he had received ineffective assistance of counsel from attorney Claude Chong. On November 10, 2009, the habeas court issued a memorandum of decision denying the habeas petition. The court also denied the petition for certification to appeal the denial of the writ of habeas coipus.

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . . The required determination may be made on the basis of the record before the habeas court and applicable legal principles.” (Internal quotation marks omitted.) Koslik v. Commissioner of Correction, 127 Conn. App. 801, 804, 16 A.3d 753 (2011).

“A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. . . . Put another way, the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . With respect to the prejúdice component, [i]t is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. . . . A court need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.” (Internal quotation marks omitted.) Gooden v. Commissioner of Correction, 127 Conn. App. 662, 668, 14 A.3d 1066 (2011).

On appeal, the petitioner argues that Chong was ineffective because he failed to investigate and to offer into evidence a DNA report, failed to cross-examine adequately employees of the state crime laboratory about that report and failed to cross-examine adequately the victim and her friend regarding discrepancies between their testimony at trial and statements made to the police. The court determined that the decisions made by Chong with respect to these issues were matters of trial strategy. We agree that the petitioner has failed to overcome the strong presumption of sound trial strategy that this court consistently has refused to second-guess. See Santiago v. Commissioner of Correction, 125 Conn. App. 641, 648, 9 A.3d 402 (2010), cert. denied, 300 Conn. 910, 12 A.3d 1006 (2011); Crocker v. Commissioner of Correction, 126 Conn. App. 110, 131-32, 10 A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d 333 (2011). We note that these strategic decisions by experienced counsel were made in the context of “overwhelming evidence of guilt . . . .”

After reviewing the record and the briefs, we conclude that the court properly denied certification to appeal from the denial of the petition for a writ of habeas corpus. The petitioner has failed to show that the issues are debatable among jurists of reason, that the court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further.

The appeal is dismissed.

       In the petitioner’s direct appeal, we set forth the following facts underlying his conviction. “On September 12, 2002, the victim was fifteen years of age. At approximately 2:30 p.m., she arrived home from school. She was home alone, speaking on the telephone with her friend, A, when the [petitioner] rang the doorbell at approximately 3 p.m. She and the [petitioner] were acquaintances; the [petitioner] was a friend of A and had provided handyman services for the victim’s mother. The [petitioner] told the victim that he was there to use the bathroom; he asked her to permit him to enter the home. The victim permitted the [petitioner] to speak with A on the telephone and ultimately complied with the [petitioner’s] request to enter the home.
      “Upon entering the home, the [petitioner] asked the victim to research something for him on her computer and went into the bathroom. When the [petitioner] returned from the bathroom, the victim was in her bedroom. The [petitioner] entered the bedroom, exposed his penis and told the victim that there was ‘something he has been wanting to do, but . . . never got the chance to.’ The victim attempted to leave the room, but the [petitioner] forcefully prevented her from doing so. The [petitioner] struck the victim. The [petitioner] pushed the victim onto her bed, where he pulled her pants and underwear to her knees. Despite the victim’s verbal and physical protests, the [petitioner] partially inserted his penis into the victim’s vagina and performed cunnilingus on the victim. The [petitioner] thereafter took possession of a photograph of the victim that was in the bedroom, warned the victim that he would ‘get back’ at her if she told anyone about what had occurred and left the victim’s home.” State v. Stepney, 94 Conn. App. 72, 74, 891 A.2d 67, cert. denied, 278 Conn. 911, 899 A.2d 40 (2006).


text:
    EHSON ROSADO v. COMMISSIONER OF CORRECTION
    (AC 32063)
    Bishop, Gruendel and Peters, Js.

      Argued April 19
    officially released June 7, 2011

      Damon A. R. Kirsehbaum, special public defender, for the appellant (petitioner).

      Michael Proto, assistant state’s attorney, with whom, on the brief, was Stephen J. Sedensky III, state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Ehson Rosado, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying certification to appeal and improperly rejected his claim that his trial counsel rendered ineffective assistance. We disagree and dismiss the appeal.

On September 10, 2004, the petitioner was convicted, after a jury trial, of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (5), and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The petitioner subsequently was sentenced to a total effective term of eighteen years incarceration consecutive to a sentence he was then serving. This court affirmed his conviction. State v. Rosado, 107 Conn. App. 517, 945 A.2d 1028, cert. denied, 287 Conn. 919, 951 A.2d 571 (2008).

The petitioner filed his initial petition for a writ of habeas corpus on October 13, 2006, which he later amended, alleging that he was denied the effective assistance of counsel in regards to his motion for a speedy trial. On direct appeal, the petitioner had appealed the denial of his motion to dismiss for lack of a speedy trial. In that appeal, this court set forth the following facts as they related to the petitioner’s motion. “On August 31, 2004, the [petitioner], through counsel, filed a motion to dismiss on speedy trial grounds, alleging that he had filed a motion for a speedy trial as an incarcerated prisoner on February 5, 2004. Jury selection commenced on September 2, 2004. The parties argued the [petitioner’s] motion to dismiss on September 8, 2004. During argument, the state averred that it had not received notice of the [petitioner’s] speedy trial request. The court reserved ruling on the motion. The parties argued the motion again at sentencing on January 13, 2005, at which time the court denied the motion. The court, in a subsequent articulation of its memorandum of decision on the [petitioner’s] motion to dismiss for lack of a speedy trial, found that the filing of the notice of the [petitioner’s] request for a speedy trial was defective in that the [petitioner] failed to cause to be delivered to the state’s attorney or assistant state’s attorney of the Danbury judicial district a written notice of the place of his imprisonment and his request for a final disposition of the information in the case, as required by General Statutes § 54-82c (a).” Id., 521-22.

In this habeas petition, the petitioner alleges that his trial counsel was deficient in five ways: that he failed to adequately research the law governing the right to a speedy trial; that he failed to conduct an adequate investigation into the facts related to the petitioner’s right to a speedy trial; that he failed to present evidence that the agents of the respondent intentionally or negligently failed to comply with their statutory duties relating to the petitioner’s motion for a speedy trial; that he failed to present other evidence in the custody of the respondent and agents of the office of the chief state’s attorney related to the violation of the petitioner’s right to a speedy trial; and that he failed to argue adequately that the charges against the petitioner should have been dismissed as a result of the violation of his right to a speedy trial. Following a hearing, the habeas court denied the petition for a writ of habeas corpus on the ground that the petitioner had failed to prove that his trial counsel was deficient in any of the alleged ways. The petitioner claims on appeal that the habeas court erroneously determined that his counsel was not ineffective and improperly denied certification to appeal. We are not persuaded.

We begin our analysis of the petitioner’s claim on appeal with the well established standard of review. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . . The required determination may be made on the basis of the record before the habeas court and applicable legal principles. . . .

“In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed. . . .

“In our review of the petitioner’s substantive claims, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . According to the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a petitioner alleging ineffective assistance of counsel must establish that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. . . . The claim will succeed only if both prongs are satisfied. ... It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Koslik v. Commissioner of Correction, 127 Conn. App. 801, 804-805, 16 A.3d 753 (2011).

After thoroughly reviewing the record, we agree with the habeas court that the petitioner submitted a “plethora of evidence . . . [but a] paucity of proof’ that he was denied the effective assistance of counsel. The habeas court concluded, and we agree, that the petitioner failed to adduce adequate evidence that his trial attorney had been ineffective in the ways claimed by the petitioner, or that the lapse of time between the date on which the petitioner claimed to have given a motion for a speedy trial to a correction officer for filing and the date on which jury selection commenced was not due, in part, to continuances granted at the behest of defense counsel. Accordingly, we conclude that the court properly denied certification to appeal from the denial of the petition for a writ of habeas corpus and that the petitioner has failed to show that the issues that he has presented are debatable among jurists of reason, that the court could resolve the issues in a different manner or that they deserve encouragement to proceed further.

The appeal is dismissed.


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. WILLIAM CONNELLY
    (AC 27988)
    Robinson, Bear and Peters, Js.

      Argued February 15
    officially released June 14, 2011

      William Connelly, pro se, the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, was Scott J. Murphy, state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The pro se defendant, William Connelly, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. On appeal, the defendant claims that the court improperly concluded that it lacked subject matter jurisdiction to consider this motion. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s claim on appeal. In connection with a shooting and hostage incident that occurred on November 10, 1989, the defendant was charged with two counts of kidnapping in the second degree in violation of General Statutes (Rev. to 1989) § 53a-94 and two counts of assault in the second degree in violation of General Statutes (Rev. to 1989) § 53U-60. On April 20, 1990, in a trial to the court, Dunn, J., the defendant was found not guilty of all charges by reason of lack of capacity due to mental disease or defect. On October 26, 1990, the trial court, Holzberg, J., committed the defendant to the custody of the commissioner of mental health for a period of ten years. The defendant did not appeal his acquittal or his commitment.

In 1993, the defendant filed a petition for a 'writ of habeas corpus seeking to have the habeas court vacate the judgment of acquittal. On August 16, 1994, the habeas court, Higgins, J., granted the petition, concluding that the record did not affirmatively establish that the trial court had advised the defendant of his right to a jury trial. The habeas court vacated the trial court’s judgment of acquittal and issued a writ of habeas corpus.

In January, 1995, the defendant was retried on the charges stemming from the November 10,1989 incident; namely, two counts of kidnapping in the second degree and two counts of assault in the second degree. On January 26, 1995, following a jury trial, the defendant was found guilty of all four charges. On March 3, 1995, the trial court, Scheinblum, J., sentenced the defendant to a total effective sentence of forty years imprisonment. This court affirmed the judgment of conviction on direct appeal. State v. Connelly, 46 Conn. App. 486, 492, 513, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998).

On March 27,2006, the defendant filed a pro se motion to correct an illegal sentence pursuant to Practice Book § 43-22. Relying on State v. McNellis, 15 Conn. App. 416, 443, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1998), the defendant alleged that his sentence was illegal and that it had been imposed in an illegal manner. Specifically, the defendant claimed that his sentence was illegal because (1) the court had participated in five instances of plea bargaining prior to the guilty verdict and (2) his privilege against self-incrimination had been violated during the sentencing process. He also claimed that his sentence had been imposed in an illegal manner because (1) he was not allowed to speak in mitigation of a newspaper article considered by the court during sentencing, (2) the presentence investigation report contained inaccurate information and (3) the court did not rely on considerations solely in the record.

On May 16, 2006, the trial court, Clifford, J., issued a memorandum of decision, in which it determined that it lacked jurisdiction to consider the motion. The court stated that “[t]he various claims made by the defendant do not allow for the relief he is seeking pursuant to Practice Book § 43-22. The majority of the claims have nothing to do with the limited authority of this court to correct a sentence. The only claim that would potentially trigger the jurisdiction of the court is the defendant’s allegation that the sentencing court did not limit itself solely to considerations in the record. However, the defendant in this regard seems to merely disagree that the court should have relied on certain information submitted to the court at the sentencing, not that the court relied on information not in the record.” (Emphasis in original.) The court thereafter dismissed the motion. This appeal followed.

On appeal, the defendant claims that the trial court improperly concluded that it lacked jurisdiction to consider the motion to correct. More specifically, the defendant argues that the trial court had jurisdiction to consider his claim that the sentencing court did not rely on considerations solely in the record when it imposed his sentence. We disagree.

We begin our analysis by setting forth the legal principles and the standard of review that guide our resolution of the defendant’s claim. “It is axiomatic that, in a criminal case, the jurisdiction of the sentencing court terminates once a defendant’s sentence has begun and a court may no longer take any action affecting a sentence unless it expressly has been authorized to act. . . . Providing such authorization to act, Practice Book § 43-22 states: The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.” (Internal quotation marks omitted.) State v. Starks, 121 Conn. App. 581, 585-86, 997 A.2d 546 (2010). “Thus, if the defendant cannot demonstrate that his motion to correct falls within the purview of [Practice Book] § 43-22, the court lacks jurisdiction to entertain it. . . . Our determination of whether a motion to correct falls within the scope of Practice Book § 43-22 is a question of law and, thus, our review is plenary.” (Citation omitted; internal quotation marks omitted.) State v. Osuch, 124 Conn. App. 572, 578-79, 5 A.3d 976, cert. denied, 299 Conn. 918, 10 A.3d 1052 (2010).

As this court has long recognized, “[sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates [a] defendant’s right ... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises . . . .” (Internal quotation marks omitted.) State v. McNellis, supra, 15 Conn. App. 444; see State v. Parker, 295 Conn. 825, 839, 992 A.2d 1103 (2010); see also State v. Henderson, 93 Conn. App. 61, 66-67, 888 A.2d 132, cert. denied, 277 Conn. 927, 895 A.2d 800 (2006).

In the present case, the defendant claims that his sentence was imposed in an illegal manner because the sentencing judge did not rely on considerations found solely in the record. The defendant’s claim is based entirely on his contention that the sentencing judge considered certain information at sentencing, which had not been admitted into evidence during his criminal trial. As this court has long recognized, however, “[t]he sentencing court has extremely broad discretion, and may consider information that was not admissible or otherwise presented at trial . . . .” (Emphasis added.) State v. Gelormino, 24 Conn. App. 563, 574, 590 A.2d 480, cert. denied, 219 Conn. 911, 593 A.2d 136 (1991); see State v. DeJesus, 10 Conn. App. 591, 600, 524 A.2d 1156 (1987) C‘[i]t is a fundamental sentencing principle that a sentencing judge may appropriately conduct an inquiry broad in scope, and largely unlimited either as to the kind of information he may consider or the source from which it may come” [internal quotation marks omitted]). As the defendant has not alleged that the information relied on by the judge at sentencing was not properly admitted at the sentencing hearing, we conclude that the trial court properly concluded that it was without jurisdiction to consider the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       For a more detailed account of the facts underlying these charges, see State v. Connelly, 46 Conn. App. 486, 488-89, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998).

       Subsequent to his direct appeal, and prior to this appeal, the defendant filed two petitions for a writ of habeas corpus. In the first petition, the defendant claimed that the forty year sentence had been imposed in retaliation for his successful habeas challenge to his acquittal by reason of lack of capacity due to mental disease or defect. The habeas court, Corrigan, dismissed the habeas petition, and our Supreme Court affirmed the dismissal in Connelly v. Commissioner of Correction, 258 Conn. 374, 780 A.2d 890 (2001).
      In the second petition, the defendant claimed that the commissioner of correction improperly (1) refused to grant him credit toward his forty year sentence for the period of time that he was in the custody of the commissioner of mental health, (2) denied him good time credit and (3) refused to grant him presentence confinement credit. Id., 401. The habeas court, Corrigan, J., agreed with all three of the defendant’s claims and ordered the commissioner of correction to grant the defendant all of the time to which he claimed he was entitled. Id., 402. Our Supreme Court affirmed the judgment as to the first and second claims but reversed the judgment as to the third claim. Id., 412.

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal maimer or any other disposition made in an illegal manner.”

       After carefully reviewing the defendant’s brief, we conclude that he does not contest the trial court’s determination that it lacked jurisdiction to consider the other allegations set forth in the motion to correct. To the extent that the defendant may have relied on his brief to contest the trial court’s determination with respect to the remaining allegations, we conclude that the claims are inadequately briefed and, therefore, have been abandoned. See, e.g., Taylor v. Mucci, 288 Conn. 379, 383 n.4, 952 A.2d 776 (2008) (“[w]here a claim . . . receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned” [internal quotation marks omitted]).

       The record indicates that prior to the criminal trial, the defendant filed a motion to preclude the state from introducing any psychiatric or psychological evidence during the criminal trial or at sentencing. The court granted the defendant’s motion with respect to the criminal trial only, stating that it would not “allow [the] motion to hamstring the court” in other matters. During the sentencing hearing, a variety of psychological evidence was presented to the court by way of testimony and the presentence investigative report.