text:
    JACQUELINE O. JUMA v. TOM M. AOMO
    (AC 33660)
    Bear, Sheldon and Harper, Js.

      Argued March 19
    officially released May 28, 2013

      Tom M. Aomo, pro se, the appellant (defendant).

      Enelsa Diaz, for the appellee (plaintiff).
   Opinion

SHELDON, J.

In this appeal, the defendant, Tom M. Aomo, claims that the trial court lacked subject matter jurisdiction over the action for the dissolution of his marriage to the plaintiff, Jacqueline O. Juma, because he had initiated an action for, and ultimately obtained, a divorce from the plaintiff in Kenya. The defendant also challenges certain of the trial court’s orders related to the parties’ finances and children. We affirm the judgment of the trial court.

Since the plaintiff commenced this action on October 1,2009, the defendant has repeatedly attempted to challenge the court’s jurisdiction on the ground that he had already commenced an action for dissolution in Kenya and that the parties’ marriage could only be dissolved by the Kenyan courts. On June 16, 2010, after a hearing, the court, Dolan J., rejected the defendant’s jurisdictional claims and denied a motion to dismiss filed by him. On September 15,2010, the defendant filed another motion to dismiss, again challenging the court’s jurisdiction over the parties’ dissolution action. On November 22, 2010, after another hearing, the court, Prestley, J., denied the defendant’s motion to dismiss. On December 30, 2010, the defendant filed yet another motion to dismiss, again alleging the trial court’s lack of jurisdiction. In conjunction with the dissolution trial, the court, Olear, J., held an evidentiary hearing regarding the jurisdictional issues raised by the defendant. On July 1,2011, the court issued a memorandum of decision in which it denied the defendant’s motion to dismiss, dissolved the parties’ marriage and entered orders regarding the parties’ finances and the care and custody of their children. This appeal followed.

I

We begin with the defendant’s claim that the trial court lacked subject matter jurisdiction over the parties’ dissolution action. In examining this issue, the trial court made the following relevant factual findings. “The defendant moved to the United States in November, 1997. He obtained a degree from the University of Michigan. He obtained permanent residency. He filed the necessary papers for the plaintiff and [the parties’ eldest child] to move to the United States in 2001. Visas were issued in November, 2006. In January, 2007, the plaintiff and the eldest child . . . moved to the United States. The plaintiff has been a legal permanent resident of the United States since January 20, 2007. The second child of the [parties] . . . was bom in the United States on October 27, 2007. The defendant became a naturalized United States citizen in 2008 and in so doing relinquished his Kenyan citizenship. In August, 2010, after this proceeding was instituted, Kenya approved dual citizenship and the defendant obtained the same.

“At the time the defendant initiated divorce proceedings against the plaintiff in Kenya in August 4, 2009, he was a United States citizen (and not a Kenyan citizen) and he, the plaintiff and their two children were residing in Connecticut.

“The Kenya divorce petition provides [that the parties] are both domiciled in the United States. The defendant testified [that] the domicile representation was made in error and it was corrected through the process. The plaintiff testified, credibly, that it was the intention of both of the parties to make the United States their home. The plaintiff acknowledged being domiciled in Connecticut.

“In the summer of 2009, the marriage of the parties clearly was breaking down. There is credible evidence of the defendant engaging in extramarital affairs and of domestic violence in the marital home and further the plaintiff was, in the words of the defendant, ‘develop [ing] more confrontational ways in interacting with the [defendant which surely disturbed the [defendant.’ . . . The defendant elected to obtain a divorce in Kenya pursuant to which he would benefit financially.

“The defendant had the divorce petition prepared while he was in Brazil on a work assignment and the plaintiff and the children were on a vacation in Kenya. The credible evidence is the plaintiff went to Kenya at the behest of the defendant as he wanted to obtain a divorce in that country. The court does not find credible the claim of the defendant that the plaintiff wanted to go and he relented. The defendant has throughout the marriage been in command of the home life of the plaintiff and the children. Once the plaintiff arrived in Kenya, the defendant, without [her] knowledge . . . extended the return date of her ticket and that of [the parties’ eldest child] for a significant period—which period corresponded to the time she would have been required to remain in Kenya in connection with the divorce proceedings had she been served.

“The credible evidence is [that] the defendant attempted to have the plaintiff served at her mother’s home in Kisumu, but that she was in Nairobi at the time the process server attempted service. The plaintiff’s mother alerted the plaintiff to the service attempt, the plaintiff contacted her social worker at [the department of children and families] and an attorney in Nairobi and decided to immediately leave the country to avoid being served. Based on the credible evidence at the trial, the court does not accept as credible the affidavit of service presented [by the defendant] as exhibit K. The plaintiff denies receiving any paperwork associated with the divorce proceedings in Kenya. She claims, credibly, [that] the defendant first provided her with proof of the proceedings when the trial in this court began. The defendant did not disclose his assets to the Kenyan court. The divorce decree obtained by the defendant in Kenya did not address the custody of the children, child support, alimony or any property distribution of the parties, other than providing that he would pay maintenance for the upkeep of the children.” (Citation omitted.)

With that factual underlayment, the court analyzed the defendant’s jurisdictional claim as follows: “ ‘A valid divorce judgment is a judgment in rem and is binding on all the world as to the existence of a status which is the subject of the action, that is, the status of being unmarried upon the adjudication of divorce.’ . . . Vogel v. Sylvester, [148 Conn. 666, 670, 174 A.2d 122 (1961)]. ‘Courts of the United States [however] are not required by federal law to give full force and effect to a judgment granted in a foreign nation .... On the other hand, judgments of courts of foreign countries are recognized in the United States because of the comity due to the courts and judgments of one nation from another. Such recognition is granted to foreign judgments with due regard to international duty and convenience, on the one hand, and to rights of citizens of the United States and others under the protection of its laws, on the other hand.’ . . . Litvaitis v. Litvaitis, [162 Conn. 540, 544, 295 A.2d 519 (1972)]. . . . ‘When so recognized, a decree of divorce granted in a foreign country will be given full force and effect not only as to the determination of the parties’ status, but also with respect to alimony and child support.’ Bruneau v. Bruneau, [3 Conn. App. 453, 455, 489 A.2d 1049 (1985)]. There are a number of exceptions, however, to a court’s application of the principle of comity, most notably, lack of jurisdiction and denial of due process of law. See Litvaitis v. Litvaitis, supra, 162 Conn. 545.

“With regard to whether a court has jurisdiction, ‘[t]he traditional requisite for subject matter jurisdiction in matrimonial proceedings has been domicil. . . . Regardless of its validity in the nation awarding it, the courts of this country will not generally recognize a judgment of divorce rendered by the courts of a foreign nation as valid to terminate the existence of a marriage unless, by the standards of the jurisdiction in which recognition is sought, at least one of the spouses was a good faith domiciliary in the foreign nation at the time the decree was rendered.’ ... Id., 545-46.

“ ‘To constitute domicil, the residence at the place chosen for the domicil must be actual, and to the fact of residence there must be added the intention of remaining permanently; and that place is the domicil of the person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with the present intention of making it his home . . . .’ Rice v. Rice, 134 Conn. 440, 445-46, 58 A.2d 523 (1948), aff'd, 336 U.S. 674, 69 S. Ct. 751, 93 L. Ed. 957 (1949). ‘[T]his intention must be to make a home in fact, and not an intention to acquire a domicil.’ ”... Id., 447. ‘Where ... it becomes highly advantageous to the claimant temporarily to feign an intention to become a resident for only a brief time, in order to accomplish other ends, his claim of intention will be scrutinized and weighed like any other evidence in the light of his conduct and all the circumstances surrounding it.’ Id., 448. Moreover, ‘[a] person may have . . . only one domicil at any one time.’ Smith v. Smith, 174 Conn. 434, 439, 389 A.2d 756 (1978). ‘[A] former domicil persists until a new one is acquired .... Therefore proof of the acquisition of a new domicil of choice is not complete without evidence of an abandonment of the old.’ . . . Rice v. Rice, supra, 134 Conn. 446.

“In Litvaitis v. Litvaitis, supra, 162 Conn. 546, the Supreme Court affirmed the trial court’s refusal to recognize a Mexican divorce decree on the ground that the defendant was not a domiciliary of the Mexican state because he ‘went to Mexico solely for the purpose of securing a divorce and that he intended to return to Connecticut.’ More recently, the Superior Court has noted that temporary residence does not constitute a change in domicil when there is no intent to remain. See Nirookh v. Aburabei, Superior Court, judicial district of New Haven, Docket No. FA-09-4012235-S (May 25, 2010, Burke, J.) [49 Conn. L. Rptr. 877] (concluding that defendant was not domiciliary of Jordan where defendant testified that he was looking for work in both Jordan and United Arab Emirates).

“In this case, the court finds [that] the defendant left Kenya and moved to the United States for an indefinite period. He relinquished his Kenya citizenship to obtain United States citizenship and became domiciled in the United States—the Kenya divorce petition confirms the same. He did not attend the proceedings in Kenya. He testified that he will not be returning to Kenya at any foreseeable time due to work. The plaintiff made it clear [that] the family intended to live in the United States for an indefinite time. The defendant claimed to be domiciled in Kenya solely to take advantage of their divorce laws; he was not, in good faith, domiciled in Kenya at the time the divorce was rendered.

“With regard to whether a court has complied with the requirements of due process, ‘[i]t is the settled rule of [Connecticut], if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard. . . . It is fundamental in proper judicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.’ . . . Hasbrouck v. Hasbrouck, 195 Conn. 558, 559-60, 489 A.2d 1022 (1985). ‘[T]he failure of a court to comply with this requirement of notice is a serious breach of a fundamental requirement of due process of law.’ Winick v. Winick, 153 Conn. 294, 299, 216 A.2d 185 (1965). ‘In cases in which a divorce decree was issued in a foreign court without one party’s knowledge or consent, Connecticut courts have refrained from recognizing the foreign divorce decree under comity.’ Nirookh v. Aburabei, supra, Superior Court, Docket No. FA-09-4012235-S (concluding that plaintiff was denied due process because she received notice of divorce decree after it had been rendered even though it had not yet been finalized); see Maklad v. Maklad, [Superior Court, judicial district of New Haven, Docket No. FA-00-0443796-S (January 3, 2001) (28 Conn. L. Rptr. 593)]; see also Jimenez v. Jimenez, Superior Court, judicial district of New Haven, Docket No. FA-06-4020114-S (September 29, 2006, Frazzini, J.).

“Based on the earlier findings, the court does not find [that] the plaintiff was afforded due process.” (Emphasis in original.) Juma v. Aomo, Superior Court, judicial district of Hartford, Docket No. FA-09-4046839-S (July 1, 2011).

On the basis of the foregoing, the trial court concluded that neither the defendant nor the plaintiff was domiciled in Kenya, that the plaintiff was not afforded due process in the Kenyan proceeding and that the rule of comity was inapplicable in this instance. The court thus denied the defendant’s motion to dismiss.

On appeal, the defendant claims that the court improperly determined that it had jurisdiction over the parties’ dissolution action. Although our review of a question of subject matter jurisdiction is a matter of law over which our review is plenary; New England Road, Inc. v. Planning & Zoning Commission, 308 Conn. 180, 183, 61 A.3d 505 (2013); we see no reason to further expound upon, and hereby adopt, the trial court’s thorough and well reasoned analysis of this issue as set forth above.

II

The defendant also claims that the court erred in issuing certain financial orders and orders regarding the parties’ children. It is well settled that our inquiry in dissolution matters is whether the court abused its discretion in fashioning its orders. See Tuckman v. Tuckman, 308 Conn. 194, 200, 61 A.3d 449 (2013). The defendant’s claims in this regard are cursorily raised, with little or no legal analysis, and, based on their lack of merit, require little discussion.

First, the defendant claims that the court improperly issued an order for work-related child care expenses that included after school work programs and extracurricular activities. The defendant claims: “The purpose of child care is to ensure that parents go to work and therefore any other child care expenses should not be included as it can only be discretionary.” The foregoing constitutes the defendant’s entire analysis of this claim and we are thus left to speculate that he must be taking issue only with the court’s order requiring him to share the expenses for the children’s extracurricular activities. We cannot conclude that the court abused its discretion in issuing this order.

The defendant also claims that the court erred in ordering periodic alimony on the bases that “[his] net worth cannot support the payment and will diminish the lifestyle that he has maintained.” The defendant’s argument does not provide a basis in law for this court to conclude that the trial court abused its discretion in awarding the plaintiff periodic alimony.

Similarly, the defendant fails to provide this court with a legal basis to find error in the court’s order that he maintain life insurance for the benefit of his children and to secure the alimony award to the plaintiff in his argument that “[Requiring him to maintain [such a policy] against his practice or custom is unreasonable.”

The defendant also claims that “[t]he trial court made an error . . . entering child visitation and custody orders and ignored one child’s needs in entirety and thereby abus[ed] its discretion of making decisions that are in the best interest[s] of the children. As a result, the orders do not encourage the children’s happiness, security, mental health and emotion development into young adults. The orders essentially marginalized the children from the [defendant] and in essence prevented the [defendant] from parenting his children.” This constitutes the entirety of the defendant’s challenge to the trial court’s orders regarding the parties’ children. Because the defendant fails to point to any specific orders of the trial court in support of his claim, and his claim is, like his others, devoid of any legal analysis or citation, we cannot conclude that the court abused its discretion.

The defendant next claims that the court improperly “distribut[ed] various retirement assets that neither the defendant nor the plaintiff had contributed to as if they were contributed to by contributions from the marriage.” He claims that the plaintiff was not entitled to any share of his retirement assets because she did not contribute to them and the assets were not obtained by him as a result of his marital status. The defendant has again failed to provide any legal support for this claim, and we are aware of none.

The defendant finally claims that the court improperly ordered him to pay a debt to the parties’ former landlord that he claims to have been accrued as a result of the plaintiff and the parties’ children continuing to reside at the premises after he had moved out. The defendant claims that the debt arose as a result of the negligence of the plaintiff and refers to General Statutes § 46b-37 in purported support of his claim. The defendant fails, however, to indicate how § 46b-37, or any subsection thereof, applies to this claim. On the basis of the record before us, we cannot conclude that the trial court abused its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also noted that the defendant’s jurisdictional claim had previously been decided by both Judge Dolan and Judge Prestley, and found that their rulings constituted the law of the case. The court nevertheless reexamined the issue and came to the same conclusion.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    JACK MILLETTE v. CONNECTICUT POST LIMITED PARTNERSHIP ET AL.
    (AC 34059)
    Gruendel, Robinson and Alvord, Js.

      Argued January 15
    officially released May 28, 2013

      Robert M. Shields, Jr., with whom were Brendon P. Leveque and, on the brief, Ronald LoRicco and Nicole Tung, for the appellant (named plaintiff).

      Richard W. Bowerman, with whom were Kate J. Boucher and, on the brief, Elizabeth K. Acee, for the appellees (named defendant et al.).
   Opinion

ROBINSON, J.

In this premises liability action, the plaintiff Jack Millette appeals from the judgment rendered by the trial court in accordance with its decision granting a motion for judgment notwithstanding the verdict filed by the defendants Connecticut Post Limited Partnership, Connecticut Post Mall, LLC, and West-field Corporation, Inc., doing business as Westfield Design and Construction. The plaintiff claims that (1) the court improperly determined that he had failed to produce sufficient evidence from which the jury reasonably could have found that the defendants were in possession and control of the precise area where the plaintiff was injured, and (2) even if there was no evidence to support a jury finding that the defendants had possession and control, liability nevertheless could attach pursuant to the nondelegable duty doctrine. We disagree and affirm the judgment of the court.

Among those facts that the jury reasonably could have found from the evidence are the following: The defendants are the owners of the Connecticut Post Mall (mall) in Milford. In 2006, the mall was undergoing an expansion that included the construction of a movie theater. Metroguard, Inc. (Metroguard), was hired to provide security for the construction site, including keeping out unauthorized persons and preventing the theft of tools and other property from the construction site. The plaintiff was a security guard who was employed by Metroguard and assigned to duty at the mall construction site. On February 27, 2006, the plaintiff reported for his second day of work at the construction site. While returning with a coworker from inspecting a parking area adjacent to the construction site, he ascended a stairway that led from the parking area to the construction site. The stairway was covered by scaffolding, and plastic strips or sheeting hung from the scaffolding at the top of the stairway, dividing the stairway from the hallway beyond. The plaintiff, while moving aside the hanging plastic and stepping through the resultant opening and under the scaffolding, slipped or tripped and fell forward onto the concrete floor. The plaintiff, who was 62 years old at the time of the fall, fractured his wrist. His injuries required two surgeries and resulted in medical bills totaling approximately $54,000.

The plaintiff filed the present personal injury action against the defendants alleging that they were negligent in failing to keep the area where he had fallen in a safe condition, in failing to inspect the area and in failing to correct or to warn of the hazardous condition of the area. The matter was tried before a jury beginning on October 18, 2011. In addition to the testimony of the plaintiff, the jury heard testimony from three additional witnesses: the owner of Metroguard, the coworker who was present at the time the plaintiff fell and the mall’s general manager. After the plaintiff had presented his case to the jury and had rested, the defendants filed a motion for a directed verdict and a memorandum in support thereof with the court. According to the defendants, the plaintiff had failed to offer sufficient evidence to satisfy his burden of establishing that the defendants had control of the area where the fall occurred at the time of the plaintiffs injuries, that they had notice of the alleged hazardous condition or that the alleged hazardous condition was the proximate cause of the plaintiffs injuries. After hearing argument, the court reserved its decision on the defendants’ motion. The defendants then rested without presenting any additional evidence.

The matter was submitted to the jury, which returned a verdict on October 20, 2011, in favor of the plaintiff. The jury found that the plaintiff had proven economic damages of $122,897 and noneconomic damages of $381,000, for a total of $503,897 in damages. The jury also found that the plaintiff was 20 percent comparatively negligent for his injuries, thereby reducing the total recoverable damages to $403,117.60.

The defendants filed a motion for judgment notwithstanding the verdict, renewing their earlier motion for a directed verdict. They also filed a motion for remittitur and a motion to set aside the verdict. The plaintiff filed oppositions to the defendants’ postverdict motions. On November 10, 2011, the court issued a memorandum of decision granting the motion for judgment notwithstanding the verdict and directing a verdict in favor of the defendants. In so ruling, the court stated that the plaintiff had failed to offer any evidence “to prove the defendants were in control over the area where the fall occurred” and that “[t]he evidence did not establish [that] the defendants had any knowledge or involvement with the conditions related to the fall.” This appeal followed.

Before turning to the plaintiffs claim, we first set forth the relevant standard of review. The standard governing our review of a motion for judgment notwithstanding the verdict is the same as the standard applied to a court’s decision to direct a verdict “because a motion for judgment notwithstanding the verdict is not a new motion, but the renewal of a motion for a directed verdict.” (Internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 400, 766 A.2d 416 (2001). “Whether the evidence presented by the plaintiff was sufficient to withstand a motion for a directed verdict is a question of law, over which our review is plenary. . . . Directed verdicts are not favored. ... A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. ... In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff. . . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party. . . . This court has emphasized two additional points with respect to motions to set aside a verdict that are equally applicable to motions for a directed verdict: First, the plaintiff in a civil matter is not required to prove his case beyond a reasonable doubt; a mere preponderance of the evidence is sufficient. Second, the well established standards compelling great deference to the historical function of the jury find their roots in the constitutional right to a trial by jury.” (Internal quotation marks omitted.) Demiraj v. Uljaj, 137 Conn. App. 800, 804-805, 50 A.3d 333 (2012).

I

The plaintiff claims that the court improperly granted the motion for judgment notwithstanding the verdict and directed a verdict in favor of the defendants on the basis of the plaintiffs purported failure to produce sufficient evidence from which the jury reasonably could have found that the defendants were in control of the area where the plaintiff fell, hi his appellate brief, the plaintiff cites to what he claims was evidence from which the jury could have inferred that the defendants were in possession and control of the construction site at the time of his injuries, and he argues that the court exceeded its authority by substituting its judgment for that of the jury. The defendants argue that instead of offering evidence that they or their agents “had the power or authority to manage, superintend, direct, oversee, restrict or regulate [the construction] site” where the injuries occurred, the plaintiff chose to meet his burden of establishing the defendants’ control over the construction site by relying “on the sole fact that the [defendants] are the title owners of the [mall].” The defendants further argue that because legal title to defective premises is not sufficient proof of control of the premise, the court properly directed a verdict in their favor. Having reviewed the evidence that was presented at trial in the light most favorable to the plaintiff, we conclude that the court properly directed a verdict in favor of the defendants.

“The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. ... If a plaintiff cannot prove all of those elements, the cause of action fails.” (Internal quotation marks omitted.) Gurguis v. Frankel, 93 Conn. App. 162, 167, 888 A.2d 1083, cert. denied, 277 Conn. 916, 895 A.2d 789 (2006). In the case of a negligence action grounded upon a theory of premises liability, the nature of the duty owed to a plaintiff depends upon the plaintiffs status on the premises at the time of the alleged injury. See Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992). In the present case, the court instructed the jury that the plaintiffs status on the premises at the time of his injuries was that of a business invitee. “A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. ... In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.” (Citation omitted.) Id.; see also 2 Restatement (Second), Torts § 343 (1965).

Such a duty of care to an invitee, however, only attaches if the defendant exercised possession and control over the area at the time and place the injury occurred. See Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966); accord 2 Restatement (Second), supra, § 328E, p. 170 (defining “possessor of land” for purposes of premises liability as one “in occupation of the land with intent to control it”). “[Liability for injuries caused by defective premises . . . does not depend on who holds legal title, but rather on who has possession and control of the property. . . . Thus, the dispositive issue in deciding whether a duty exists is whether the [defendant] has any right to possession and control of the property. . . . Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances. . . . The word control has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee.” (Citation omitted; internal quotation marks omitted.) Sweeney v. Friends of Hammonasset, 140 Conn. App. 40, 50, 58 A.3d 293 (2013); see also Farlow v. Andrews Corp., supra, 225; Ziulkowski v. Kolodziej, 119 Conn. 230, 233, 175 A. 780 (1934) (defective premises liability “ordinarily depends upon power to prevent the injury by making repairs, and therefore rests primarily upon him who has control and possession”).

“The general rule is that where the owner of premises employs an independent contractor to perform work on them, the contractor, and not the owner, is hable for any losses resulting from negligence in the performance of the work. . . . The basic premise is that the assumption and exercise of control over the offending area is deemed to be in the independent contractor. . . . The explanation for [this rule] most commonly given is that, since the [owner] has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor’s own enterprise, and [the contractor], rather than the [owner], is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it. . . .

“Exceptions to that rule arise when the employer retains control of the premises or supervises the work of the contractor, or where the work to be performed by the contractor is inherently dangerous, or where the employer has a nondelegable duty to take safety precautions imposed by statute or regulation . . . .” (Citations omitted; internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn. App. 287, 291-92, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). Accordingly, in order to satisfy his burden of proof as to the duty element of the cause of action alleged, the plaintiff needed to establish by a preponderance of the evidence that the defendants retained control over the construction site where the plaintiff fell.

The evidence presented at trial established that the plaintiff was injured while working at the mall construction site, but there was no evidence presented as to who had control of that site at the time the plaintiff fell. The plaintiff testified that there were painters, plumbers, electricians, masons and carpenters working at the site when he fell, but he was unable to identify any specific companies or individuals responsible for the work being performed. No evidence was presented as to who erected the scaffolding or hung the plastic on the stairs where the plaintiff fell. No testimony or documentary evidence was introduced at trial from which the jury reasonably could have inferred who was responsible for the oversight of the construction site in general, let alone the specific area where the plaintiff fell. No evidence was presented identifying the parties involved in the construction work being performed at the site or who ultimately controlled the day-to-day operations. In sum, there was no evidence introduced from which the jury reasonably could have inferred who had control over the construction site at the time that the plaintiff fell. Instead the jury was left to speculate about whether the defendants had overseen and performed the construction work on their property with their own employees, whether they had employed a general contractor to oversee the construction or whether they had hired and overseen a number of independent contractors.

The plaintiff nevertheless argues in his appellate brief that there was sufficient evidence from which the jury reasonably could have concluded that the defendants possessed and controlled the area where the plaintiff fell. The plaintiff first contends that the “most significant” evidence of control is found in the defendants’ responses to certain requests for admission that were filed as part of discovery by the former codefendant, National Amusements, LLC. See Practice Book §§ 13-22 and 13-24. Specifically, the plaintiff notes that the defendants admitted that “[a]t the time and place of the alleged event referenced in the plaintiffs revised complaint, one or more of the codefendants against which these requests for admission are filed was performing or had its agent performing ongoing construction activities.” According to the plaintiff, the defendants’ “admitted construction activity on their own property is inconsistent with the trial court’s finding of no possession or control in the area where the plaintiff fell.” Even if we agreed with the plaintiff that the defendants’ admission that they or their agents were “performing ongoing construction activities” constituted some evidence from which a jury permissibly might infer that the defendants’ retained control over the area where the plaintiff fell, the admissions were never submitted as evidence at trial or otherwise brought to the attention of the jury as the finder of fact, and, therefore, the admissions properly were not considered by the court in deciding whether to direct a verdict in favor of the defendants. See Falcone v. Night Watchman, Inc., 11 Conn. App. 218, 219 n.1, 526 A.2d 550 (1987).

The plaintiff next makes several factual statements that include references to portions of the testimony by the mall’s general manager. In particular, the plaintiff mentions the manager’s testimony that the area where the plaintiff fell has always been a common area entrance to the mall that never would be devised to a specific tenant. The plaintiff states without citation to the record that “[d]uiing the construction phase when the plaintiff fell, it was readily accessible to the construction workers, security officers, movie theater employees and mall personnel and others entitled to enter.” Finally, the plaintiff makes reference to the manager’s testimony agreeing with the plaintiffs counsel that, during construction, the defendants still would have had access to the construction site. The plaintiff fails to provide any analysis explaining how any of those factual assertions are relevant to the issue of whether the defendants controlled the area where he fell during the construction phase, nor can we discern any such relevancy.

Finally, the plaintiff suggests in rather conclusory fashion that the fact that a mall security officer was called to the accident scene, interviewed the plaintiff and his coworker and filled out an incident report was “yet another indication that the . . . defendants continued to exercise possession and control over the entire [mall], including the area where [the] plaintiff fell.” The evidence at trial, however, indicated that regular mall security was not responsible for security at the construction site; that was, in fact, the responsibility of the plaintiffs employer, Metroguard. There was no evidence that mall security patrolled the construction site in any manner, and, as to the incident with the plaintiff, the security officer only appeared several hours after the incident at the request of the parties involved. We do not regard the security officer’s actions as having any bearing on whether the defendants possessed and controlled the area where the plaintiff fell. On the basis of our independent review, we agree with the trial court that there was insufficient evidence presented from which the jury reasonably could have based a finding of control.

II

The plaintiff makes the additional claim that even if we determine on the basis of our plenary review that the evidence presented was insufficient to support a finding by the jury that the defendants were in control of the premises, the defendants nevertheless still could be found hable pursuant to the nondelegable duty doctrine. The defendants maintain that the nondelegable duty doctrine is not applicable to this matter. We agree with the defendants.

“Nondelegable duties generally are imposed, most often by statute, contract or common law, in recognition of the policy judgment that certain obligations are of such importance that employers should not be able to escape liability merely by hiring others to perform them. ... In such circumstances, the nondelegable duty doctrine means that [the employer] may contract out the performance of [its] nondelegable duty, but may not contract out [its] ultimate legal responsibility.” (Citation omitted; internal quotation marks omitted.) Machado v. Hartford, 292 Conn. 364, 371-72, 972 A.2d 724 (2009); see also Gazo v. Stamford, 255 Conn. 245, 255, 765 A.2d 505 (2001) (nondelegable duty doctrine means party with duty may not absolve itself of liability by contracting out performance of duty). “[T]he owner or occupier of a premises owes a nondelegable duty to keep the premises safe by protecting third persons from foreseeable slip and fall injuries. Should the owner or occupier of the premises hire a contractor to maintain the property, the owner or occupier is vicariously liable for the consequences arising from that contractor’s tor-tious conduct.” (Emphasis added.) Smith v. Greenwich, 278 Conn. 428, 460, 899 A.2d 563 (2006).

We find nothing in our decisional law, however, nor has the plaintiff cited any case, that supports the proposition that the nondelegable duty doctrine can provide an independent basis for imposing a duty on the title owner of premises in a case in which the plaintiff has not established that the owner of the premises had possession and control of the premises at the time the injury allegedly occurred. Rather, our case law suggests that the nondelegable duty doctrine applies only when the plaintiff has established that the defendant maintained possession and control of the property. In Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 54, 946 A.2d 839 (2008), our Supreme Court held that a general contractor did not owe a nondelegable duty to a subcontractor’s employee to ensure a safe work site because the evidence failed to establish that the general contractor retained or exercised control over the work site, and that the court improperly had instructed the jury to apply the nondelegable duty doctrine in that case. The present case falls within the scope of the Archambault holding.

The ongoing and significant construction taking place on the premises at the time of the plaintiffs injuries amounted to more than maintenance of the premises, distinguishing this case from those discussing the non-delegable duly doctrine with regard to injuries resulting from the improper removal of ice and snow accumulations from abutting sidewalks. See Smith v. Greenwich, supra, 278 Conn. 428; Gazo v. Stamford, supra, 255 Conn. 245. Because the evidence presented in this case was insufficient to establish whether it was the defendants or some other entity that had control over the premises at the place and time the plaintiff was injured, the evidence also was insufficient to establish that the defendants had a duty, nondelegable or otherwise, to protect against the plaintiffs injuries. Under the circumstances presented, we do not find error in the court’s granting of the defendants’ motion for judgment notwithstanding the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       Metroguard, Inc., Millette’s employer, was permitted to intervene in the action as a party plaintiff to recover workers’ compensation benefits paid to Millette, but has not participated in this appeal. The complaint also named National Amusements, LLC, as an additional defendant, however, the action was withdrawn as to it prior to trial. We therefore refer in this opinion to Millette as the plaintiff and to the remaining defendants, Connecticut Post Limited Partnership, Connecticut Post Mall, LLC, and Westfield Corporation, Inc., doing business as Westfield Design and Construction, collectively as the defendants.

       The plaintiff also claims that the court improperly determined that he had failed to provide sufficient evidence from which the jury reasonably could have found that the defendants had constructive notice of the alleged unsafe condition or that the defendants’ negligence proximately caused the plaintiffs injuries. Because we conclude that the court properly directed a verdict for the defendants due to insufficient evidence of the defendants’ possession and control of the premises, it is not necessary to address the merits of those additional claims.

       The evidence presented at trial failed to establish who had hired Met-roguard to provide security for the construction site. The owner of Met-roguard testified that he did not know who had hired his company. When the plaintiff was asked who hired Metroguard he first testified, “I guess Connecticut Mall,” but later agreed on cross-examination that he did not know who had hired Metroguard and only knew that he was supposed to report to the mall for duty. A report that was made by a mall security officer shortly after the incident and that was made a full exhibit at trial contained the following statement: “Metroguard is an outside hired contractor for D & C Construction . . . .” When the mall’s general manager was asked at trial whether D & C Construction was working under Westfield Design and Construction, he answered: “I don’t know.” No additional evidence was presented explaining who D & C Construction was or its relationship to any of the other parties involved.

       The court issued a separate memorandum of decision addressing the motion to set aside the verdict and the motion for remittitur in which it “reserve[d] decision” on those motions. In doing so, it reiterated: “In this case the court finds inadequate evidence to establish by a fair preponderance of the evidence of control, a specific defect and notice of any alleged defect by the defendants.”

       “Ordinarily, the status of one who sustains injury while upon the property of another is a question of fact. . . . Where, however, the facts essential to the determination of the plaintiffs status are not in dispute, a legal question is presented.” (Citations omitted.) Morin v. Bell Court Condominium Assn., Inc., 25 Conn. App. 112, 115, 593 A.2d 147 (1991) (holding court properly instructed jury with respect to entrant status of plaintiff as matter of law on basis of undisputed facts), aff'd, 223 Conn. 323, 612 A.2d 1197 (1992). The parties did not challenge the court’s characterization of the plaintiffs status at trial, nor do they do so on appeal.

       We note that as part of their response, the defendants continued: “It is further admitted agents for National Amusements, LLC, were also performing ongoing construction activities at the time and place of the alleged event referenced in the plaintiffs revised complaint.” In the same requests for admission, the defendants also denied a request for an admission that one or more of the defendants “possessed and/or controlled” the location of the alleged incident at the time the incident occurred.


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. CHRISTOPHER KOKKINAKOS
    (AC 33912)
    Lavme, Beach and Bear, Js.

      Argued March 4
    officially released May 28, 2013

      Katherine S. Goodbody, assigned counsel, with whom, on the brief, was Christopher Kokkinakos, pro se, for the appellant (defendant).

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, were David Shepack, state’s attorney, and Jonathan Knight, assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Christopher Kokkinakos, appeals from the denial of his motion to correct an illegal sentence. The defendant claims that the court erred in denying his motion to correct because his sentence was imposed in an illegal manner by virtue of the court’s failure to make a finding, pursuant to General Statutes (Rev. to 2007) § 53a-40 (j), that enhancement of his sentence was in the public interest. We reverse the judgment of the trial court.

The record established that on May 8,2007, the defendant stole a purse from a home in Thomaston and subsequently made purchases with credit cards taken from the purse. The state filed a substitute part A information charging the defendant with burglary in the second degree, credit card theft, and failure to appear, after the defendant failed to appear for a court date in connection with the May 8, 2007 incident. The state also filed a part B information, charging that the defendant was convicted of burglary in the second degree in 1990, and that the defendant was therefore subject to an enhanced penalty pursuant to the persistent serious felony offender statute, General Statutes (Rev. to 2007) § 53a-40 (c). On May 30, 2008, the defendant pleaded guilty under the Alford doctrine to the part A and part B informations. On August 8, 2008, the defendant was sentenced to twenty years incarceration, execution suspended after eight years, with five years probation. The defendant later filed a motion to correct an illegal sentence. In that motion, the defendant claimed that a finding that the public interest would be best served by his extended incarceration was never made, and the enhancement of his sentence by virtue of the part B information was thus illegal. The court denied the motion, and this appeal followed.

Practice Book § 43-22 provides that “[t]he judicial authority may at any time correct an illegal sentence . . . .” Interpreting § 43-22, our Supreme Court, in State v. Lawrence, 281 Conn. 147, 913 A.2d 428 (2007), stated: “Practice Book rules do not ordinarily define subject matter jurisdiction. . . . Because the judiciary cannot confer jurisdiction on itself through its own rule-making power, § 43-22 is limited by the common-law rule that a trial court may not modify a sentence if the sentence was valid and its execution has begun. . . . Therefore, for the trial court to have jurisdiction to consider [a defendant’s] claim of an illegal sentence, the claim must fall into one of the categories of claims that, under the common law, the court has jurisdiction to review. . . .

“Connecticut courts have considered four categories of claims pursuant to § 43-22. The first category has addressed whether the sentence was within the permissible range for the crimes charged. . . . The second category has considered violations of the prohibition against double jeopardy. . . . The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time. . . . The fourth category has involved questions as to which sentencing statute was applicable.” (Citations omitted; internal quotation marks omitted.) Id., 155-57.

The court also has jurisdiction to correct sentences imposed in an illegal manner. This category includes sentences that are “within the relevant statutory limits but . . . imposed in a way which violates [the] defendants’ 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, 15 Conn. App. 416, 444, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988).

“A denial of a motion to correct an illegal sentence is reviewed under the abuse of discretion standard. . . . Of course, when the court is called upon to exercise its legal discretion, we must determine whether the trial court correctly interpreted and applied the law.” (Citations omitted.) State v. Brown, 133 Conn. App. 140, 148, 34 A.3d 1007, cert. granted on other grounds, 304 Conn. 901, 37 A.3d 745 (2012).

A brief overview of the persistent felony offender statute, § 53a-40, is helpful. Referring to § 53a-40 as it read prior to the January 25, 2008 effective date of Public Acts, Special Session, January, 2008, No. 08-1, § 7, our Supreme Court said: “Section 53a-40 sets forth six categories of persistent felony offenders in subsections (a) through (f), and each subsection has a corresponding provision that provides for an increased sentence on the basis of two factual predicates: first, that the defendant was found to be a persistent felony offender as defined in the respective subsection and, second, that ‘the court is of the opinion that such person’s history and character and the nature and circumstances of such person’s criminal conduct indicate that extended incarceration will best serve the public interest . . . .’ The court may not impose an extended sentence unless both factual predicates are satisfied.” (Citations omitted; emphasis added.) State v. Michael A., 297 Conn. 808, 818-19, 1 A.3d 46 (2010) (discussing General Statutes [Rev. to 1999] § 53a-40 [a] through [f]).

On September 11, 2007, after the defendant had committed the underlying offenses on May 8, 2007, but before he was sentenced on August 8, 2008, our Supreme Court officially released its decision in State v. Bell, 283 Conn. 748, 931 A.2d 198 (2007). In Bell, the court, relying on the principles stated in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), held that “[the 2007 revision of General Statutes] § 53a-40 (h) is unconstitutional, to the extent that it does not provide that a defendant is entitled to have the jury make a required finding [that] expose [s] the defendant to a greater punishment than that authorized by the jury’s guilty verdict . . . .” (Emphasis added; internal quotation marks omitted.) State v. Bell, supra, 283 Conn. 810. “After the Supreme Court’s 2007 decision in Bell, the General Assembly accordingly amended § 53a-40, effective January 25, 2008, to eliminate the public interest finding altogether. See Public Acts, Spec. Sess., January, 2008, No. 08-1, § 7 [(Spec. Sess. P.A. 08-1)].” State v. Reynolds, 126 Conn. App. 291, 301, 11 A.3d 198 (2011).

The defendant argues that the court erred in denying his motion to correct an illegal sentence. He claims that the sentencing court applied the revision of § 53a-40 that went into effect January 25, 2008, which eliminated the requirement that the court—or the jury after Bell— make the public interest determination, rather than General Statutes (Rev. to 2007) § 53a-40, which existed prior to the enactment of Spec. Sess. P.A. 08-1 and required that the court make the public interest determination. He argues that, in the context of a plea, the court was required to make the public interest finding if the sentence were to be enhanced. Because no public interest finding was made by the court, the defendant argues, his enhanced sentence should be set aside.

The state agrees that General Statutes (Rev. to 2007) § 53a-40, as amended by Spec. Sess. P.A. 08-1, did not apply to the defendant’s case, but contends that the defendant, by pleading guilty to the part B information, acknowledged every relevant element of § 53a-40, including an admission that an enhanced sentence was in the public interest.

As both parties agree, the amended revision of § 53a-40, eliminating the need for a specific finding of public interest, did not apply in this case. See State v. Graham, 56 Conn. App. 507, 510, 743 A.2d 1158 (2000) (in determining whether change in statutory law applies in criminal cases courts generally apply law in existence on date of offense); see also State v. Ross, 230 Conn. 183, 283, 646 A.2d 1318 (1994) (relying on date of offense in retroactivity analysis of change in statutory law), cert. denied, 513 U.S. 1165 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). Special Session P.A. 08-1 provided that it was effective January 25, 2008, and the legislature did not indicate that it should apply to pending matters.

We next consider whether Bell applies to the enhancement in this case. Ordinarily, it is the general rule that “judgments that are not by their terms limited to prospective application are presumed to apply retroactively ... to cases that are pending . . . .” (Internal quotation marks omitted.) State v. Kitchens, 299 Conn. 447, 454, 10 A.3d 942 (2011); see State v. Ryerson, 201 Conn. 333, 339, 514 A.2d 337 (1986) (“If a new constitutional doctrine is truly right, we should not reverse lower courts which have accepted it; nor should we affirm those which have rejected the very arguments we have embraced. . . . [C]omplete retroactive effect is most appropriate where a new constitutional principle is designed to enhance the accuracy of criminal trials.” [Citations omitted; internal quotation marks omitted.]); see also State v. Bell, 303 Conn. 246, 258, 33 A.3d 167, (2011) (retroactive application of § 53a-40 [h] as modified by State v. Bell, supra, 283 Conn. 748, does not violate ex post facto principles embodied in fourteenth amendment).

There are exceptions to this general rule. See, e.g., Williams v. Commissioner of Correction, 133 Conn. App. 96, 104 n.5, 33 A.3d 883 (2012). In State v. Henderson, 130 Conn. App. 435, 448, 24 A.3d 35, cert. granted, 302 Conn. 938, 28 A.3d 992 (2011), the defendant appealed from the dismissal of his motion to correct an illegal sentence and a panel of this court held that Bell was not subject to retroactive application in the circumstances of that case. Henderson does not apply directly to the present case because in Henderson the defendant’s case was final and had been affirmed on direct appeal; see State v. Henderson, 37 Conn. App. 733, 658 A.2d 585, cert. denied, 234 Conn. 912, 660 A.2d 355 (1995); when Bell was decided, unlike the present case, which was pending in the trial court when Bell was decided.

It does not matter in this case, however, whether Bell applies retroactively to the enhancement procedure. If Bell does not apply in this case, then the court would have been required to make the public interest finding if the sentence were to be enhanced. If Bell were to apply in this case and the jury was required to make the finding, the defendant waived any right to a jury— as opposed to a court—determination of public interest by pleading guilty. The defendant’s waiver of a jury trial on the part B information met the applicable standard for a knowing, intelligent and voluntary waiver. See State v. Gore, 288 Conn. 770, 787-89, 955 A.2d 1 (2008) (canvass to waive right to jury trial should assure trial court that defendant understands his right to jury trial, understands he possesses authority to waive it, and that he voluntarily chooses to waive it and elect court trial); see also State v. Michael A., supra, 297 Conn. 821-26 (applying Gore to conclude that defendant’s plea of nolo contendere on part B information waived right to jury trial on public interest). Furthermore, the court’s canvass included an express acknowledgement by the defendant of the waiver of any right to a jury determination on public interest. As a result of the guilty plea, the court would appropriately make the public interest determination. See State v. Bell, supra, 283 Conn. 812 (“in those cases in which the defendant chooses to waive his right to a jury trial under § 53a-40, the court may continue to make the requisite [public interest] finding”).

In any event, because the defendant effectively waived his right to a jury finding of public interest, the court was the proper entity to make the determination, if such a determination was not waived altogether. The state argues that the court was not required to make a public interest finding because, during the canvass, the defendant explicitly acknowledged that the public interest would be served by an enhanced sentence. The defendant argues that he did not admit that his sentence enhancement was in the public interest, and, accordingly, the court was required to make a public interest finding if one were to be made.

Following the defendant’s guilty plea, the court canvassed the defendant to ascertain whether he had enough time to discuss the matter with his attorney and he was satisfied with his attorney’s advice, whether he was currently under the influence of alcohol, drugs or medication, whether by pleading guilty he knew that he was giving up his right to a jury trial, whether his plea was voluntary, and whether he was forced or threatened to plead guilty. The court then discussed the persistent serious felony offender statute in response to an earlier question posed by the defendant. The court noted that, under the recent changes in case law, the defendant had a right to a jury determination of public interest, and the defendant agreed that that answered his question. The following colloquy then transpired:

“The Defendant: [D]oes that exclude the discretion from the judge. In other words does the judge have the sole discretion?
“The Court: You’re not going to have a trial. You’ve plead guilty. So it’s all in front of the court so . . . it’s a moot point, what you’re saying. As I’m sitting here today I don’t know whether or not a jury would determine whether there’d be an enhancement or a court only, because you’re not having a trial. I will tell you the sentence as you plead to it today is going to be up to me.
“The Defendant: I see, sir. Okay.
‡‡*
“The Court: So I think the point that you’re making is, well, does a judge determine that or a jury? That’s out of the picture now. It’s all the court that’s going to determine what your sentence is.
“The Defendant: ... I’d prefer to actually have that happen and to avoid the actual jury conseq— you know what I mean? To go through the jury thing. Because I didn’t want to have to go—
“The Court: You’re not going to have a jury because you plead guilty to a—
“The Defendant: Well, that’s why I did it.
* * ⅝
“The Court: Unless you want to withdraw your plea. I’ll allow you to withdraw your plea if you still have questions.
“The Defendant: No. I want to dispose of this, Your Honor.”

This discussion pertained to the defendant’s waiver of a jury trial as to § 53a-40. He admitted that he did not want a jury trial on the § 53a-40 issue, but he never expressly admitted that an enhancement of his sentence would serve the public interest. The state argues that even if the canvass did not include an explicit admission of the public interest factor, we can presume that the defendant’s counsel explained the offenses to him and that he had notice of the public interest element and waived his right to trial on that element. See State v. Heyliger, 114 Conn. App. 193, 198, 969 A.2d 194 (2009) (“[e]ven without an express statement by the court of the elements of the crimes charged, it is appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit” [internal quotation marks omitted]). The state essentially argues that by virtue of the defendant’s guilty plea on the part B information, he admitted to a finding that an enhanced sentence would be in the public interest. Bell and Reynolds inform our discussion.

Our Supreme Court in State v. Bell, supra, 283 Conn. 812, contemplated cases in which the defendant would plead guilty to being a persistent offender under § 53a-40. The court stated: “Of course, in those cases in which the defendant chooses to waive his right to a jury trial under § 53a-40, the court may continue to make the requisite finding. Additionally, the court properly may impose an enhanced sentence if the defendant admits to the fact that extended incarceration is in the public interest.” Id.

In State v. Reynolds, supra, 126 Conn. App. 296, the defendant pleaded guilty to the part B information charging him with being a persistent serious felony offender under § 53a-40 (c). The trial court determined that the defendant had waived his right to a jury trial on the public interest determination. Id., 299-312. This court concluded that the trial court erred in failing to affirmatively make a public interest determination in light of the fact that the defendant had not expressly admitted that enhancement of his sentence was in the public interest and, accordingly, vacated the judgment on the part B information and remanded to the trial court for a public interest determination. Id., 312-14. Under our case law, then, there are two ways in which the public interest factor can be satisfied in the context of a guilty plea. The court can make an express finding, or the defendant can expressly agree to the determination.

Accordingly, the defendant is not presumed to have waived a court finding on the public interest factor by virtue of his guilty plea. Because he did not expressly agree that the public interest factor had been satisfied, and the court did not expressly make such a finding, we conclude that the court erred in denying his motion to correct an illegal sentence.

We, therefore, must remand the case with direction to the trial court as fact finder to make the finding whether extended incarceration was in the public interest or for the defendant to make the appropriate acknowledgement and, depending on that finding or acknowledgement, to determine whether an enhanced sentence is appropriate. See id., 314.

The judgment denying the motion to correct an illegal sentence is reversed and the case is remanded for further proceedings in accordance with the preceding paragraph.

In this opinion the other judges concurred.

       The defendant also claims in his brief that the court erred in denying his motion to correct his sentence because § 53a-40 was inapplicable in that he qualified for an exemption to enhancement pursuant to subsection (c). At oral argument before this court, the defendant expressly abandoned this claim, and, accordingly, we consider it waived. See Rostain v. Rostain, 213 Conn. 686, 688 n.3, 569 A.2d 1126 (1990).
      The defendant also argued that the court sentenced him on the basis of unreliable information. In light of our reversal on his main claim, we need not reach this issue.

        North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       Prior to the enactment of Public Acts, Special Session, January 2008, No. 08-1, § 7, General Statutes (Rev. to 2007) § 53a-40 (j) provided that a trial court may impose a greater sentence than that authorized for the crime for which a person presently stands convicted when that person “has been found to be a persistent serious felony offender, and the court is of the opinion that such person’s history and character and the nature and circumstances of such person’s criminal conduct indicate that extended incarceration will best serve the public interest . . . .”

       Of course, for offenses committed after January 25, 2008, no finding that the enhancement of the sentence is in the public interest is required.