author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. LUIS M. OCASIO
    (AC 29039)
    Gruendel, Robinson and Pellegrino, Js.

      Argued November 12, 2008
    officially released February 24, 2009

      Jason A. Hyne, certified legal intern, with whom were Timothy H. Everett, special public defender, and Randi Haraj-Sai, certified legal intern, and, on the brief, Nicholas Mindicino, Brian McCarthy, Jennifer Ayanna Butler and Elizabeth Letak, certified legal interns, for the appellant (defendant).

      Rocco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were John A. Con-nelly, state’s attorney, and Jason Germain, assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Luis M. Ocasio, appeals from the judgment of conviction, rendered following his conditional plea of nolo contendere, to sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (a). The plea followed the trial court’s denial of the defendant’s motion to suppress. On appeal, the defendant claims that the court improperly denied the motion to suppress the evidence obtained following the investigative or Terry stop of his motor vehicle because the police officers did not possess a reasonable and articulable suspicion of criminal activity to justify the stop. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). We disagree and affirm the judgment of the trial court.

On January 26, 2007, the defendant filed a motion to suppress all evidence that had been obtained pursuant to the stop of his motor vehicle. The court conducted an evidentiary hearing on the motion to suppress on February 7, 2007. At the conclusion of the hearing, the court found the following facts. On October 17, 2005, at approximately 3 p.m., Officer Brian Boutote of the Wolcott police department received a telephone call from one of his confidential informants. The confidential informant identified the defendant by name and stated that the defendant currently was packaging cocaine for sale at Greco Pizza on East Main Street in Waterbury. The informant described the defendant as a heavyset Hispanic man in his mid-thirties and also provided aprecise description of the make, model, color and location of the defendant’s motor vehicle. According to the informant, the defendant was expected to be leaving the restaurant shortly.

Boutote did not verify the information received or inquire into the source of the informant’s knowledge; however, Boutote believed the informant to be reliable on the basis of past productive interactions. Boutote did not take notes on this conversation; rather, immediately after speaking with his informant, Boutote called Sergeant Robert Cizauskas of the Waterbury police department and relayed this tip via the telephone.

Cizauskas is a member of the vice and intelligence division of the Waterbury police department. Boutote relayed to Cizauskas the information received from his informant, including the defendant’s name, physical description and a description of the defendant’s vehicle. According to Cizauskas, Boutote informed him that the defendant would be leaving shortly with the cocaine in his motor vehicle. Upon receiving this information, Cizauskas and three additional police officers left immediately for the location provided by the informant. When they arrived several minutes later, the officers confirmed the location and description of the motor vehicle described by the informant. They also confirmed that the vehicle was registered to the defendant. Shortly thereafter, at 3:20 p.m., the officers observed the defendant exiting the restaurant empty-handed. His physical description matched that provided by Boutote’s informant.

The officers followed the defendant as he drove away from the restaurant. The defendant did not engage in suspicious activity, but after he turned onto a less congested street, the officers activated the sirens on their vehicles and stopped the defendant’s vehicle. Cizauskas observed the defendant moving around in his vehicle as the four officers approached. When Cizauskas approached the driver’s side window, he asked the defendant to roll down his window and to identify himself. Cizauskas confirmed that the driver was the same man identified in the informant’s tip and then observed a plastic bag containing a white substance on the driver’s side floor. The packaging was consistent with typical packaging for cocaine, and a subsequent field test of the substance was positive for cocaine.

The defendant then was ordered to exit his vehicle and was placed under arrest. The subsequent patdown search of his person revealed three plastic bags in his front pocket. Two of the bags contained fifteen smaller bags of cocaine and a piece of cardboard with writing typically used in drug transactions to describe the price and contents of the bags. The writing indicated “9 balls, 6-16s, 1350.” According to Cizauskas, a “ball” referred to one-eighth of an ounce and “16” referred to one-sixteenth of an ounce whereas “1350” indicated the price of the bags. Additional contraband was found in the trunk of the defendant’s vehicle and during the course of a subsequent search of the defendant’s bedroom, located in the same building as Greco Pizza.

On the basis of these facts, the court concluded that the contents of the informant’s tip received by Cizauskas was sufficient to establish a reasonable and articulable suspicion to justify the stop of the vehicle. In reaching this conclusion, the court determined that the collective knowledge of law enforcement entitled the Waterbury police officers “to utilize the reliability of Boutote’s informant, as if that informant was their own, despite not knowing the informant’s identity.” The court also recognized that the tipster was well known to Boutote and had never provided bad, unreliable or untruthful information; in actuality, his past information had resulted in five arrests. Furthermore, all of the identifying information provided by the informant was corroborated by the police prior to the investigatory stop. Regarding the informant’s basis of knowledge, the court concluded that “one may reasonably infer, given the confirmed accuracy of all the details provided by Boutote’s informant and given the use of present tense, that the informant was in a position to observe [the defendant’s] activities inside the pizza establishment.” Additional facts will be set forth as necessary.

We begin by setting forth the applicable standard of review. “[0]ur 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 .... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court’s [ruling] . . . .” (Internal quotation marks omitted.) State v. Jones, 281 Conn. 613, 654, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007). “Because a trial court’s determination of the validity of a . . . search [or seizure] implicates a defendant’s constitutional rights ... we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citation omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 43, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).

The defendant argues that the court improperly concluded that the state established reasonable and articu-lable suspicion to justify the investigatory stop of his vehicle. Specifically, the defendant maintains that the police unreasonably based their stop on an informant’s tip that (1) was vague and contained substantial ambiguity that was not sufficiently corroborated, (2) failed to tie illegal activity to the defendant and (3) was unreliable. We disagree.

“Pursuant to Terry v. Ohio, [supra, 392 U.S. 1], a police officer has the authority, under the fourth amendment to the United States constitution, to stop the operator of a car if the officer has a reasonable and articulable suspicion that the operator has engaged in illegal conduct.” State v. Cyrus, 111 Conn. App. 482, 483, 959 A.2d 1054 (2008). “Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. . . . The police officer’s decision . . . must be based on more than a hunch or speculation. ... In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Internal quotation marks omitted.) State v. Hammond, 257 Conn. 610, 617, 778 A.2d 108 (2001); see also Terry v. Ohio, supra, 21.

“In evaluating the validity of such a stop, courts consider whether, in light of the totality of the circumstances—the whole picture, the police officer had a particularized and objective basis for suspecting the particular person stopped of criminal activity. . . . When ... an officer’s decision to detain a suspect briefly is based on information received from an informant, the task of the reviewing court is akin to a probable cause determination [according to] the totality of the circumstances approach of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983). . . . Just as . . . the informant’s veracity, reliability, and basis of knowledge [are] highly relevant [in a probable cause determination] [t]hese factors are also relevant in the reasonable suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard. Alabama v. White, [496 U.S. 325, 328-29, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990)].” (Citations omitted; internal quotation marks omitted.) State v. Cofield, 220 Conn. 38, 45-46, 595 A.2d 1349 (1991). “[A] deficiency in one [factor] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability”; Illinois v. Gates, supra, 233; such as corroboration by the police. The police, however, are not required to corroborate all of the information provided by a confidential informant. See id., 246; State v. Cofield, supra, 47. Partial corroboration may suffice. State v. Cofield, supra, 47-48.

I

Prior to arguing the specific deficiencies of the tip, the defendant maintains that the court relied on the wrong version of the tip when it conducted its analysis of his claim. As the first two arguments proffered by the defendant are based on his analysis of a version of the tip that was not credited by the court, this argument must be addressed before reaching the merits of his specific arguments attacking the legal conclusions of the court.

At the hearing, the court heard testimony from Bou-tote and Cizauskas regarding the contents of the tip. The versions differed in one important respect; Cizauskas testified that he was told that the defendant would be leaving shortly with the cocaine in his vehicle, whereas Boutote testified that the informant stated only that the defendant would be leaving shortly. The defendant argues that the court should have credited Boutote’s testimony over that of Cizauskas because Boutote was the recipient of the original tip and Cizauskas could not have known facts that were not relayed to him. This argument fails, however, because credibility determinations fall within the province of the trial court, and the record contains sufficient evidence on which the court reasonably could have relied in determining that Cizauskas had a better recollection of the contents of the tip. “This court does not retry the case or evaluate the credibility of the -witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. ... In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Internal quotation marks omitted.) State v. Silva, 65 Conn. App. 234, 263, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001).

Having determined that the court did not erroneously credit the testimony of Cizauskas over Boutote, we now review the legal conclusions of the court to determine if, on the basis of the information provided in the tip according to Cizauskas, the investigatory stop effectuated in this case was premised on a reasonable and articulable suspicion. The defendant first argues that the informant’s tip was vague and contained substantial ambiguity that was not sufficiently corroborated to support a finding of reasonable and articulable suspicion. He maintains that although the contents of the tip indicated the possibility that the defendant would have the drugs in his possession when he left the restaurant, the tip did not exclude several other reasonable interpretations of the information that did not involve the transportation of the drugs in the vehicle subsequently stopped by the police. This argument ignores the court’s acceptance of Cizauskas’ testimony in which he stated that he was informed that the defendant would “be leaving shortly with the cocaine in the vehicle.” This testimony is not vague or ambiguous about the possibility that cocaine would be in the vehicle. Accordingly, the defendant’s argument on this ground fails.

Likewise, the defendant also argues that the tip provided an insufficient basis for a finding of reasonable and articulable suspicion because it failed to link illegal activity to the defendant outside of the restaurant. Cizauskas’ testimony was clear that he received a tip that the defendant “was in Greco’s Pizza on East Main Street, Waterbury, packaging up cocaine for sale . . . and that he would be leaving shortly with the cocaine in the vehicle.” Accordingly, the defendant’s argument on this claim is also without merit.

II

The defendant next argues that the tip lacked the reliability necessary to support a reasonable and articu-lable suspicion. Specifically, the defendant contends that the informant did not provide a basis of knowledge to substantiate the allegations in the tip. We review this argument cognizant of the fact that the informant’s basis of knowledge is just one element of the totality of circumstances analysis that a court must engage in to determine whether a reasonable and articulable suspicion existed. See State v. Cofield, supra, 220 Conn. 45. As stated previously, the informant’s veracity, reliability and basis of knowledge are all highly relevant. Id., 46.

This court’s analysis in State v. Leonard, 31 Conn. App. 178, 187-88, 623 A.2d 1052, cert. granted, 226 Conn. 912, 628 A.2d 985 (1993) (appeal withdrawn January 7, 1994), is particularly instructive in our resolution of the present appeal. In Leonard, a case sharing a factual predicate with the present matter, a confidential informant reported a tip to a detective with the New Britain police department. The informant told the police that “two black males, one of whom was the defendant, James Leonard, were coming back to New Britain . . . to a six-family dwelling on Silver Street with a large quantity of heroin, and that the defendant would be driving a black Ford Taurus.” Id., 180-81. On six occasions, the informant had provided rehable information to the officer that had resulted in six convictions. Id., 187. Upon receiving this tip, the police went to the designated location and observed two black men, one of whom was the defendant, approach, unlock and enter a vehicle matching the informant’s description. Id., 181. Taking into account the established reliability of the informant, the court determined that there was sufficient corroboration of the tip to establish its veracity and, therefore, justify the ensuing investigatory stop of the defendant in his vehicle. The court concluded that “[although [a]ny one of these factors is not by itself proof of illegal conduct, taken together, they amount to reasonable suspicion. . . . Viewing the totality of circumstances in this case, we conclude that the informant supplied the officers with information that had sufficient indicia of reliability and corresponded adequately with their observations [at the scene] to provide them with a reasonable and articulable suspicion sufficient to justify approaching the defendant’s car for further investigation.” (Citations omitted; internal quotation marks omitted.) Id., 187. Accordingly, this court upheld the trial court’s denial of the defendant’s motion to suppress.

The present matter shares marked similarities with Leonard. Here, Boutote received a tip from a confidential informant that he believed to be reliable on the basis of previous encounters. At the suppression hearing, he testified that he had received information from this informant at least ten times, and on approximately five occasions, the tips had resulted in arrests and convictions. Furthermore, on the occasions that the information did not result in an arrest, Boutote testified, this was not due to the informant’s unreliability but, rather, was the result of cases that went stale or did not contain enough information to allow the police to pursue an investigation. Boutote specifically testified that the informant had never provided information that was bad or untruthful. Furthermore, the informant was able to provide a detailed physical description of the defendant and his vehicle and also indicated predicative information of when the defendant was anticipated to leave the restaurant. The police corroborated all of this identifying information prior to the investigative stop to ascertain the veracity of the tip. Accordingly, viewing the totality of the circumstances, we conclude that the informant supplied sufficient information containing the requisite indicia of reliability to justify the subsequent investigative stop. The court properly concluded that the police had a reasonable and articulable suspicion of illegal activity.

The judgment is affirmed.

In this opinion the other judges concurred.

       The information charged the defendant with three counts; however, the state entered a nolle prosequi as to the first count of the information, which charged him with operation of a drug factory in violation of General Statutes § 21a-277 (c), and as to the third count, which charged him with a second count of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b).

       The items sought to be suppressed included all physical evidence seized, any tests or experiments performed relative thereto, observations made by the police officers, any evidence gathered as a result of these searches and seizures and any testimony related thereto.

       In his brief, the defendant argues that the entirety of his claim is entitled to plenary review, including issues of credibility and the weighing of the evidence. He argues that Connecticut jurisprudence has ignored the standards set forth in Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996); however, his argument is grounded in a misreading of this authority. Ornelas states: “We therefore hold that as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Id., 699.

       The court credited the testimony of Cizauskas over that of Boutote on the ground that Cizauskas’ testimony was corroborated by the police report filed soon after the incident. The consistency between Cizauskas’ testimony and the police report when compared to Boutote’s recollection of the events at the suppression hearing was highly relevant to the court in its credibility determination, given the passage of time between the arrest and the elicitation of the testimony at the suppression hearing. The court also noted that Boutote did not take any notes of his conversation with his informant but rather merely passed the information along.

       In his brief, the defendant cites United States v. Reaves, 512 F.3d 123 (4th Cir. 2008), to support his contention that descriptive information from an informant is not sufficient to establish the tip’s reliability. Specifically, the defendant quotes the portion of Reaves stating that a “tipster’s accurate description of a suspect’s location and appearance is reliable in th[e] limited sense [that] it will help the police correctly identify the person whom the tipster means to accuse, but it does not show that the tipster has knowledge of . . . criminal activity.” (Internal quotation marks omitted.) Id., 127.
      The defendant’s exceipt, however, is not an accurate representation of the court’s analysis because it omits one word that creates a highly relevant distinction. The statement in Reaves is specifically addressing an “anonymous tipster,” the word “anonymous” being omitted from the defendant’s interpretation of the court’s conclusion. Under a totality of circumstances analysis, the weight given to the reliability of an anonymous tipster differs substantially from that afforded to a confidential informant with a proven record of reliability. Tips from known, reliable informants require less verifying detail than tips from anonymous sources. Compare Florida v. J. L., 529 U.S. 266, 272, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000) (tip relating only suspect’s location and appearance does not contain requisite indicia of reliability to corroborate anonymous tipster’s knowledge of criminal activity) with State v. Leonard, supra, 31 Conn. App. 187-88 (confidential informant’s tip relating suspect’s location and appearance to report criminal activity can establish sufficient indicia of reliability when corroborated by police).


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    FIRST CONNECTICUT CAPITAL, LLC, ET AL. v. HOMES OF WESTPORT, LLC, ET AL.
    (AC 28991)
    Gruendel, Beach and Hennessy, Js.

      Argued September 24, 2008
    officially released February 24, 2009

      Edward Kanowitz, for the appellant (named defendant).

      Matthew B. Woods, for the appellees (named plaintiff et al.).
   Opinion

GRUENDEL, J.

This is a foreclosure appeal about a committee sale conducted during the pendency of an appellate stay. The defendant Homes of Westport, LLC, challenges the propriety of the judgment of the trial court approving the committee sale of certain real property in Westport. We conclude that the court abused its discretion in approving a committee sale conducted during the pendency of an appellate stay and, accordingly, reverse the judgment of the trial court.

The facts are not disputed. In December, 2006, the plaintiffs, First Connecticut Capital, LLC, Hedy Kanar-ick, First CT Capital Mortgage Pool No. 1, Harold Silver, Pearl Silver, Ronald Simonelli, David Snow and First Connecticut Capital Mortgage Fund A, Limited Partnership, commenced a foreclosure action against the defendant with respect to real property known as 3 Grays Farm Road in Westport (property). The defendant thereafter filed a disclosure of no defense, and the plaintiffs, in turn, moved for a judgment of strict foreclosure. On May 7, 2007, the court rendered judgment of foreclosure by sale, finding the value of the property to be $3.2 million and a debt owing of $1,847,934. The defendant did not appeal from that judgment. The court set a sale date of July 7, 2007.

On July 5, 2007, the defendant filed a motion to open the judgment of foreclosure by sale and extend the sale date. On July 6, 2007, the court held a hearing thereon, at which the defendant alleged that it was in negotiations with Angelo Labbruzzo, a potential buyer of the property, as evidenced by a purchase agreement and a personal check signed by Labbruzzo. The defendant thus requested that the sale date be delayed more than seven months. The plaintiffs expressed skepticism at the alleged potential sale of the property, stating that they had informed the defendant that “if the alleged buyer was willing to put up a 10 percent, nonrefundable deposit, we wouldn’t object to an extension of time, because we’d love to have the property sold . . . .” That offer was not accepted. The plaintiffs further stated: “[Rjight now, Your Honor, this potential buyer ... we have no idea as to his financial solvency; [he] could be some guy who just happened to be walking by on the sidewalk and was brought in to sign this document. We don’t know whether he has the money to close. We don’t know whether he’ll qualify for a multimillion dollar mortgage to buy the property. So far, all we’ve seen is this purchase agreement with a . . . personal check attached. We don’t even know whether that check is good.” The plaintiffs further noted that the purchase agreement before the court provided that “[t]his sale is contingent upon the buyer’s ability to obtain financing thirty days from completion of home, building inspection, radon test and well test.” As a result, the plaintiffs maintained that the sole basis of the defendant’s motion was to delay the foreclosure sale, stating that “[d]elaying this until February will be prejudicial to the plaintiff [s], and I don’t believe that this alleged agreement is sufficient. It’s not areal agreement, Your Honor.” In response, counsel for the defendant candidly stated: “Your Honor, as you know, has to weigh the equities of the possibility of this deal being a real deal. It was just presented to me yesterday. I was just retained yesterday. I don’t know who the buyer is, of course. I don’t know about the bona fide [nature] of that check, but in doing real estate conveyancing, the way it starts is with a binder and with a personal check .... There [are] times when you find out that the check is good, sometimes you find out the check is no good.”

After hearing from all concerned parties, the court denied the motion to open the judgment of foreclosure by sale. At that time, the plaintiffs moved to terminate prospectively the stay of execution, pursuant to Practice Book § 61-11 (d). The plaintiffs stated: “[W]hat counsel [for the defendant] is attempting to do is buy time. That means that any appeal would be solely for purposes of delay. And I’m willing to bet that he has the appeal papers in his briefcase all . . . ready to file.” The court granted the motion to terminate prospectively the stay of execution.

At the conclusion of the July 6, 2007 hearing, the committee for the sale of the property inquired as to whether the sale was to proceed as scheduled. The following colloquy occurred:

“[The Committee’s Counsel]: Your Honor, if I may, I have a question, since my marching orders come from the court. You’re granting the motion to terminate [the] stay means that even if the defendant files an appeal, I am to go forward with the auction tomorrow?

“The Court: I think that’s right, but I’m not in the business of giving legal advice. In other words, there would be no stay, as far as I know. All right?

“[The Defendant’s Counsel]: Subject to the potential filing of a motion for review with the Appellate Court.

“The Court: I mean we’re in the area where I’m not sure I can give you—and I apologize, because you’re certainly entitled to what I can give you, but . . . it’s not going to be much.”

Later that day, the defendant filed an appeal from the court’s denial of its motion to open the judgment of foreclosure by sale. The sale proceeded as scheduled on July 7, 2007.

On July 13, 2007, the defendant filed with this court, pursuant to Practice Book §§ 66-6 and 61-14, a motion for review of the order terminating the stay of execution. This court denied that motion on September 26, 2007. The trial court subsequently granted the committee’s motion for approval of the committee sale and deed on October 29, 2007. From that judgment, the defendant appeals.

I

Before addressing the defendant’s claim, we first consider whether the denial of a motion to open a judgment of foreclosure by sale is an appealable final judgment. Two commentators have noted this muddled aspect of our foreclosure law. See D. Caron & G. Milne, Connecticut Foreclosures (4th Ed. 2004) § 17.06, p. 394 (“the denial of a motion to reopen a judgment is generally not a final judgment from which an appeal lies”); but see id., p. 395 (observing that Connecticut case law “invariably [has] depended on a recognition that the denial of a motion to reopen rests in the sound discretion of the trial court, and that, barring a finding of an abuse of that discretion, the decision must remain undisturbed”). Because that question implicates this court’s subject matter jurisdiction; see Mazurek v. Great American Ins. Co., 284 Conn. 16, 33, 930 A.2d 682 (2007); we first address this threshold issue.

Preliminarily, we note that the denial of a motion to open generally is appealable. As this court recently observed, “It is well established in our jurisprudence that [w]here an appeal has been taken from the denial of a motion to open, but the appeal period has run with respect to the underlying judgment, we have refused to entertain issues relating to the merits of the underlying case and have limited our consideration to whether the denial of the motion to open was proper.” (Internal quotation marks omitted.) Misata v. Con-Way Transportation Services, Inc., 106 Conn. App. 736, 742, 943 A.2d 537 (2008). Thus, “[w]hen a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment.” Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn. App. 634, 640, 626 A.2d 804 (1993).

There is no Connecticut precedent that holds that the denial of a motion to open a judgment of foreclosure by sale is not an appealable final judgment. To the contrary, our appellate courts routinely afford review to appeals from the denial of a motion to open a judgment of foreclosure by sale. See, e.g., Northeast Savings, F.A. v. Hintlian, 241 Conn. 269, 271, 696 A.2d 315 (1997) (granting review of trial court’s denial of motion to open judgment of foreclosure by sale and concluding no due process violation); Connecticut Savings Bank v. Heghmann, 193 Conn. 157, 160, 474 A.2d 790 (granting review of trial court’s denial of motion to open judgment of foreclosure by sale and concluding no abuse of discretion), cert. denied, 469 U.S. 883, 105 S. Ct. 252, 83 L. Ed. 2d 189 (1984); McCord v. Fredette, 92 Conn. App. 131, 133, 883 A.2d 1258 (2005) (holding that court did not abuse discretion in denying defendant’s motion to open judgment of foreclosure by sale and remanding case for setting of new sale date); Tax Collector v. Stettinger, 79 Conn. App. 823, 827, 832 A.2d 75 (2003) (holding that court “properly denied” defendant’s motion to open judgment of foreclosure by sale); Union Trust Co. v. Roth, 58 Conn. App. 481, 755 A.2d 239 (2000) (noting that “[wjhether to grant a motion to open rests in the discretion of the trial court” and holding that court did not abuse discretion in denying motion to open judgment of foreclosure by sale); First Union National Bank v. Bonito, 52 Conn. App. 52, 55, 725 A.2d 393 (holding that court did not abuse discretion in denying motion to open judgment of foreclosure by sale), cert. denied, 249 Conn. 901, 732 A.2d 775 (1999); Connecticut Mortgage Co. v. Knudsen, 39 Conn. App. 936, 667 A.2d 1307 (1995) (memorandum decision affirming trial court’s denial of motion to open judgment of foreclosure by sale); Weston v. Reade, 36 Conn. App. 961, 962, 653 A.2d 228 (1995) (memorandum decision affirming trial court’s denial of motion to open judgment of foreclosure by sale); Old Stone Bank v. Murray, 29 Conn. App. 927, 618 A.2d 589 (memorandum decision affirming trial court’s denial of motion to open judgment of foreclosure by sale), cert. denied, 225 Conn. 907, 621 A.2d 288 (1993); National Iron Bank v. Gelormino, 28 Conn. App. 7, 9, 609 A.2d 666 (1992) (holding that defendants “failed to demonstrate that the trial court abused its discretion, that its findings were clearly erroneous or that its decision was otherwise erroneous in law” in denying motion to open judgment of foreclosure by sale); Marselle v. Gay, 27 Conn. App. 922, 608 A.2d 108 (1992) (holding that court did not abuse discretion in denying motion to open judgment of foreclosure by sale).

As in the present case, the defendants in Wilton v. McGovern, 33 Conn. App. 517, 518, 636 A.2d 870, cert. denied, 228 Conn. 929, 640 A.2d 116 (1994), took no action during the twenty day appeal period after the judgment of foreclosure by sale was rendered. The defendants in Wilton subsequently filed a motion to open the judgment, which the trial court denied. Id. In considering the propriety of the subsequent appeal from that denial, this court stated: “That motion to open was filed within the four month period provided by Practice Book § 326 [now § 17-4] and an appeal from the denial of the motion to open is ordinarily allowed under Farmers & Mechanics Savings Bank v. Sullivan, [216 Conn. 341, 356, 579 A.2d 1054 (1990)], provided the appeal is timely filed.” Wilton v. McGovern, supra, 519; see also Wells Fargo Bank of Minnesota, N.A. v. Morgan, 98 Conn. App. 72, 83, 909 A.2d 526 (2006) (“the proper filing of a timely motion to open the judgment [of foreclosure by sale] triggers the automatic stay provision”). As we often have stated, “this court’s policy dictates that one panel should not, on its own, reverse the ruling of a previous panel. The reversal may be accomplished only if the appeal is heard en banc.” (Internal quotation marks omitted.) Boccanfuso v. Conner, 89 Conn. App. 260, 285 n.20, 873 A.2d 208, cert. denied, 275 Conn. 905, 882 A.2d 668 (2005). Prudence, then, dictates that this panel decline to revisit the question. That our Supreme Court has reached the merits of appeals from the denial of a motion to open a judgment of foreclosure by sale; see, e.g., Northeast Savings, F.A. v. Hintlian, supra, 241 Conn. 269; Connecticut Savings Bank v. Heghmann, supra, 193 Conn. 157; further complicates the matter. As an intermediate appellate body, it is not within our province to overrule or modify the precedent of our Supreme Court. State v. Henry, 76 Conn. App. 515, 551, 820 A.2d 1076, cert. denied, 264 Conn. 908, 826 A.2d 178 (2003).

Furthermore, even if we assume arguendo that the denial of a motion to open a judgment of foreclosure by sale is not an appealable final judgment, that determination would have little bearing on the outcome in the present case. When the defendant commenced its appeal from the denial of its motion to open the judgment of foreclosure by sale on July 6, 2007, it did so on sound legal footing in light of the precedent discussed previously. Even were this court to conclude that such action does not constitute an appealable final judgment, the appellate stay mandated by Practice Book §§ 61-11 and 61-14 remained in full force at the time of the July 7, 2007 committee sale.

In any event, the determinative factors in the present case do not concern the defendant’s motion to open. Although the defendant ultimately appealed from the denial of its motion to open, it remains that the plaintiff filed, and the court granted, a prospective motion to terminate an appellate stay prior to the defendant’s commencement of the appeal. As discussed in greater detail in part II, once the court granted the motion to terminate the appellate stay, “[execution of an order of the court terminating a stay of execution shall be stayed for ten days from the issuance of notice of the order . . . .” Practice Book § 61-14. Thus, even had the defendant never appealed from the denial of its motion to open the judgment of foreclosure, our rules of practice imposed a ten day appellate stay on the proceedings. Accordingly, we perceive no final judgment barrier to our consideration of the present appeal.

II

Returning our attention to the issue addressed by the parties in this appeal, the defendant’s sole claim is that the court improperly approved a committee sale conducted in violation of Practice Book §§ 61-11 and 61-14. We are compelled to agree with the defendant.

At the outset, we note that the applicable standard of review applied to a court’s approval of a committee sale is the abuse of discretion standard. Fidelity Trust Co. v. Irick, 206 Conn. 484, 490, 538 A.2d 1027 (1988). “[A] foreclosure action constitutes an equitable proceeding. ... In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. . . . This court must make every reasonable presumption in favor of the trial court’s decision when reviewing a claim of abuse of discretion. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Citations omitted; internal quotation marks omitted.) Ocwen Federal Bank, FSB v. Thacker, 73 Conn. App. 616, 618, 810 A.2d 279 (2002).

Our analysis begins with Practice Book § 61-14, which provides in relevant part: “The sole remedy of any party desiring the court to review an order concerning a stay of execution shall be by motion for review .... Execution of an order of the court terminating a stay of execution shall be stayed for ten days from the issuance of notice of the order, and if a motion for review is filed within that period, the order shall be stayed pending decision of the motion, unless the court having appellate jurisdiction rules otherwise. . . .” In the present case, the court issued an order terminating the stay of execution on July 6, 2007, and the defendant filed a motion for review thereof on July 13, 2007. As a result, the defendant argues that the automatic stay of execution provided for in Practice Book § 61-11 (a) remained in effect until this court ruled on its motion for review on September 26, 2007, and, accordingly, the July 7, 2007 committee sale was prohibited under Practice Book §§ 61-11 and 61-14.

The plaintiffs’ principal contention in this appeal pertains to equitable considerations at play in the issue before us. They emphasize that no appeal was taken from the underlying judgment of foreclosure by sale, and they consistently have maintained, before the trial court and this appellate body, that the defendant’s strategic course of conduct has been pursued for a dilatory purpose. As they state in their appellate brief: “Under the defendant’s reasoning, a foreclosing plaintiff faced with a motion to open a judgment of foreclosure by sale filed ten or fewer days before the scheduled sale would be in a no-win situation. If the court denied the motion to open and thereafter granted the plaintiffs motion to terminate the [appellate] stay, Practice Book § 61-14 would continue the stay through the scheduled sale date. Moreover, the stay would continue even if the defendant did not appeal the denial of its motion to open. Conversely, if the plaintiff did not file a motion to terminate the appellate stay, and the defendant filed an appeal from the denial of its motion to open the judgment, the normal appellate stay would kick in.” At its essence, the plaintiffs’ position calls to our attention an alleged abuse of judicial process. The trial court, as a court of equity in foreclosure proceedings, in its discretion determined that a delay in the sale of the foreclosed property was unwarranted. Availing itself of the right to appellate review under our rules of practice, the defendant nevertheless delayed the sale. As Judge Nadeau observed during argument on the motion to approve the committee sale, by carefully employing the motion to open a judgment of foreclosure by sale in tandem with Practice Book §§61-11 and 61-14, “it would be possible ... to create almost the perfect perpetual motion machine.”

We understand that an action of foreclosure is peculiarly equitable and that the court exercises discretion in ensuring that justice be done. See Beach v. Isacs, 105 Conn. 169, 176, 134 A. 787 (1926). In approving the committee sale, “[t]he court must exercise its discretion and equitable powers with fairness not only to the foreclosing mortgagee, but also to subsequent encum-brancers and the owners.” Dime Savings Bank of New York v. Grisel, 36 Conn. App. 313, 319, 650 A.2d 1246 (1994). Most importantly, the court possesses the authority “to refuse to confirm sales upon equitable grounds where they were found to be unfair or the price bid was inadequate.” (Internal quotation marks omitted.) Northeast Savings, F.A. v. Hopkins, 22 Conn. App. 396, 401, 578 A.2d 136 (1990). An argument is to be made that, in light of that authority, a court facing a committee sale that transpired in contravention of an appellate stay could nevertheless discern whether that sale was unfair to the defendant or whether the sale price was inadequate, which essentially amounts to a harmlessness analysis. For multiple reasons, we are persuaded that such an argument ultimately is untenable.

First and foremost, by their plain language, the salient provisions of Practice Book §§ 61-11 and 61-14 are mandatory. “Absent an indication to the contrary, the [drafter’s] choice of the mandatory term shall rather than the permissive term may indicates that the . . . directive is mandatory.” (Internal quotation marks omitted.) Vargas v. Doe, 96 Conn. App. 399, 412, 900 A.2d 525, cert. denied, 280 Conn. 923, 908 A.2d 546 (2006). Section 61-11 (a) provides in relevant part that “[e]xcept where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to take an appeal has expired. ...” (Emphasis added.) Likewise, Practice Book § 61-14 provides in relevant part that “[execution of an order of the court terminating a stay of execution shall be stayed for ten days from the issuance of notice of the order, and if a motion for review is filed within that period, the order shall be stayed pending decision of the motion, unless the court having appellate jurisdiction rules otherwise. . . .” (Emphasis added.) Those provisions plainly prohibited the committee sale from proceeding on July 7, 2007. As this court has stated, “Practice Book § 61-11 serves to stay ‘proceedings to enforce or carry out the judgment . . . until the time to take an appeal has expired,’ thereby forbidding ... a sale in a foreclosure by sale.” RAL Management, Inc. v. Valley View Associates, 88 Conn. App. 430, 439, 872 A.2d 462 (2005), rev’d on other grounds, 278 Conn. 672, 899 A.2d 586 (2006); see also Wells Fargo Bank of Minnesota, N.A. v. Morgan, supra, 98 Conn. App. 83 (“the proper filing of a timely motion to open the judgment [of foreclosure by sale] triggers the automatic stay provision”); D. Caron & G. Milne, supra, § 17.06, p. 395.

Second, this court is bound by the decision of our Supreme Court in Hartford National Bank & Trust Co. v. Tucker, 181 Conn. 296, 435 A.2d 350, cert. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980). The defendant in that case appealed unsuccessfully to our Supreme Court from a judgment of foreclosure by sale. He thereafter filed a motion to reargue his appeal with that court. Id., 297. As the court stated: “Notwithstanding the continued appellate status of this case . . . the trial court . . . granted the plaintiffs motion . . . and modified the judgment to provide for a public sale to be held on October 13, 1979.” Id., 297-98. Because that order impinged on the defendant’s appellate rights, the Supreme Court held it improper: “[T]he modification of the judgment ordering a public sale of the property, and the sale held pursuant thereto, were without judicial authority. It is fundamental to the judicial process that a party’s right to judicial review shall not be obliterated or undermined by the unauthorized exercise of jurisdiction by the court whose doings are, or may be, subject to review. This principle is as binding upon this court as it is upon courts of lesser jurisdiction in this state. A party accorded the right of appellate review is entitled to the full and unhampered exercise of that right in accordance with the applicable rules of practice or statutes. This the defendant was deprived of, and so, he was deprived of due process of law.” Id., 298. That logic applies with equal force to the present case.

Third, our decisional law indicates that in a foreclosure by sale, “[t]he court is the vendor . . . and the committee of sale is the mere agent of the court.” Dime Savings Bank of New York v. Grisel, supra, 36 Conn. App. 320. For that reason, “whatever discretion the committee may have certainly cannot extend to selling property . . . .” Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 629, 749 A.2d 630 (2000). When the committee proceeded with the July 7, 2007 sale, it did so as an agent of the court in contravention of Practice Book §§ 61-11 and 61-14.

Although the court in a foreclosure action exercises discretion, it must correctly apply the law. Ocwen Federal Bank, FSB v. Thacker, supra, 73 Conn. App. 618. That the court did not do in the present case. Pursuant to Practice Book § 61-14, execution of the court’s July 6, 2007 order terminating prospectively the stay of execution was “stayed for ten days from the issuance of notice of the order . ...” As a result, proceedings to enforce or carry out the judgment of foreclosure by sale automatically were stayed, including the scheduled committee sale of July 7, 2007. Practice Book § 61-11; RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 682, 899 A.2d 586 (2006) (rules of practice preclude any proceedings to enforce or carry out judgment while appellate stay in effect). In light of the foregoing, we conclude that the court abused its discretion in approving the motion for approval of the committee sale and deed.

We appreciate the concerns raised in this appeal by the plaintiffs, which merit attention by the rules committee of the Superior Court and the General Assembly. As presently enacted, however, our rules of practice permitted the perpetual motion machine employed by the defendant in the present case.

The judgment is reversed and the case is remanded to the trial court with direction to set a new sale date.

In this opinion the other judges concurred.

      Named as defendants in the complaint were Homes of Westport, LLC; Homes of Fairfield County, LLC; The Braca Family Trust, LLC; John A. Braca, Jr.; Patricia A. Braca; Robert Utzler; Midland Sales, Inc.; Creative Bath, LLC; Hill Top Painters, LLC; and First Connecticut Capital Mortgage Fund A, Limited Partnership. Because only Homes of Westport, LLC, has appealed, we refer to it as the defendant in this opinion.

       Due to its interest in the property stemming from a second mortgage, the plaintiff First Connecticut Capital Mortgage Fund A, Limited Partnerhsup, was named as a defendant in the action. See footnote 1.

       The defendant’s motion to open the judgment of foreclosure by sale and extend the sale date was not authorized by General Statutes § 49-15; that statute pertains only to motions to open a judgment of strict foreclosure. Northeast Savings, F.A. v. Hopkins, 22 Conn. App. 396, 399 n.3, 578 A.2d 136 (1990); see also D. Caron & G. Milne, Connecticut Foreclosures (4th Ed. 2004) § 9.01B, p. 203 (“[General Statutes] § 49-15, by its very terms, is applicable only to judgments of strict foreclosure, and thus can have no effect on a judgment of foreclosure by sale”). Rather, the motion to open a judgment of foreclosure by sale “has two restrictions. It must be filed within the four month restriction of [General Statutes] § 52-212a, and this motion has to be filed before the committee sale is approved.” Northeast Savings, F.A. v. Hopkins, supra, 399 n.3. Because the defendant’s motion was filed both within the four month limitation set forth in § 52-212a and before approval of the committee sale, it was timely.

       “[Ojnce a court has approved the foreclosure sale and the applicable appeal period has elapsed, the mortgagor’s right of redemption is extinguished and the court’s jurisdiction to modify that judgment ends. . . . [A]fter the sale is approved and the relevant appeal periods have expired, any action by the mortgagor to redeem should be dismissed as moot.” (Citation omitted.) Wells Fargo Bank of Minnesota, N.A. v. Morgan, 98 Conn. App. 72, 79-80, 909 A.2d 526 (2006). Because the defendant commenced this appeal from the judgment approving the committee sale in a timely manner, mootness is not implicated in the present case.

       Significantly, the defendant in this appeal has abandoned any claim concerning the propriety of the court’s denial of its motion to open the judgment of foreclosure by sale.

       Although neither party raised this threshold issue, it is well established that “[t]he subject matter jurisdiction requirement . . . may be raised . . . by the court sua sponte, at any stage of the proceedings, including on appeal.” Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).

       In First National Bank v. Ferguson, 129 Conn. 374, 377, 28 A.2d 87 (1942), our Supreme Court considered whether the denial of a motion to open a judgment of foreclosure constitutes a final judgment for purposes of appeal. The court began its analysis by acknowledging that “[o]rdinarily the denial of a motion to reopen a judgment is not a final judgment within the appeal statute” before qualifying that statement: “The denial of such a motion falls within the rule that, in a proper case, supplemental proceedings following a judgment may be assigned as error in an appeal from the judgment.” Id., 376. The court continued: “If an appeal would lie from [the denial of a motion to open a judgment of foreclosure], it would be because the grounds upon which relief was claimed arose after the time to appeal from the original judgment of foreclosure had passed. Whether or not a judgment is final is to be determined upon the face of the record." Id. Because the defendant in Ferguson “made a motion to open the judgment without stating any specific grounds”; id.; the court concluded that the record before it was inadequate to determine whether the facts alleged by the defendant had arisen after the time to appeal from the original judgment of foreclosure had passed. Id., 376-77.
      By contrast, the defendant’s July 5, 2007 motion to open in the present case alleged, inter alia, that subsequent to the rendering of the judgment of foreclosure by sale, “an offer to purchase the property has been received at a price of $3,595,000,” that the “offered price is sufficient to satisfy the debt being foreclosed,” that it “would be inequitable to proceed to the presently ordered foreclosure sale” and that the defendant should be afforded “the opportunity to sell the property in a commercially reasonable manner to resolve the mortgage debt.” Reading that pleading broadly as we are required to do; see Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905 A.2d 623 (2006); the motion appears to contain grounds that arose “after the time to appeal from the original judgment of foreclosure had passed.” First National Bank v. Ferguson, supra, 129 Conn. 376. In short, it may qualify for the Ferguson exception, which presents an additional complexity to any final judgment analysis. As two commentators have noted, the Ferguson exception has not been applied or expounded on in subsequent decisions. D. Caron & G. Milne, supra, § 17.06, p. 395.

       Although a strict foreclosure case, Farmers & Mechanics Savings Bank held that an appeal from the judgment denying a motion to open “is viable.” Farmers & Mechanics Savings Bank v. Sullivan, supra, 216 Conn. 356.

       That perpetual motion machine was in full operation in Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989). We detailed “the sorry procedural history”; id., 165 n.2; of that case as follows: “On September 23, 1988, the plaintiff filed a motion to terminate the automatic stay of execution. The court held a hearing on September 30, 1988, and granted the plaintiffs motion to terminate the stay. The defendant immediately moved for this court to review the termination of the stay. On November 8, 1988, we denied the defendant’s request for relief from the termination of the stay. Thereafter, on November 17, 1988, the plaintiff filed a motion seeking advice from the trial court as to whether title had passed to it, and if not, whether new law days should be set. On November 28, 1988, the court heard the motion and set new law days beginning December 5, 1988, for the defendant.
      “The court, at the same time, terminated any stay of the law days pending appeal. On November 30,1988, the defendant appealed from the trial court’s setting of the new law days. On December 2, 1988, the defendant filed a motion for review of the trial court’s termination of stay of the December 5 law day. On January 27,1989, this court denied any relief to the defendant on the review of the stay, dismissed the second appeal, and gave the defendant the right to amend his first appeal to include the trial court’s setting of new law days on November 28, 1988.
      “On February 2, 1989, the plaintiff filed a motion to set new law days. On May 1, the trial court set the law days beginning May 22, 1989, for the defendant. In addition, the trial court terminated any stay of appeal that would be created by the defendant’s taking an appeal from the setting of the new law days. On May 5, the defendant filed a motion for review of the trial court’s order terminating the automatic stay of execution. On May 17, this court denied the relief requested. On May 22, the defendant filed a motion for reconsideration with this court that was denied on June 26, 1989.” Id. Incredible.


author: McLACHLAN, J.

text:
    MARY CARRANO, ADMINISTRATRIX (ESTATE OF PHILLIP J. CARRANO, JR.), ET AL. v. YALE-NEW HAVEN HOSPITAL ET AL.
    (AC 28901)
    DiPentima, McLachlan and Berdon, Js.
    Argued November 17, 2008
    officially released February 24, 2009

      Thomas J. Weihing, with whom, on the brief, were John T. Bochanis, Janice L. Rosenfeld and Thomas E. Mangines, for the appellants (named plaintiff et al.).

      Jeffrey R. Bobbin, with whom, on the brief, was Kenneth D. Heath, for the appellees (named defendant et al.).
   Opinion

McLACHLAN, J.

The plaintiff Mary Carrano, individually and as administratrix of the estate of her late husband, Phillip J. Carrano, Jr. (decedent), appeals from the judgment of the trial court denying her motion for postjudgment interest on the judgment rendered in her favor against the defendants Yale-New Haven Hospital; Garth Ballantyne, a gastrointestinal surgeon; and Mary Harris, a registered nurse, for the wrongful death of the decedent. The plaintiff claims that the court abused its discretion in failing to award the interest she requested pursuant to General Statutes (Rev. to 1991) § 37-3b. We affirm the judgment of the trial court.

The decedent was admitted to Bridgeport Hospital on February 24, 1992, for the treatment of a necrotic finger. While there, he began to experience complications from a preexisting condition of Crohn’s disease. On March 11, he was transferred to Yale-New Haven Hospital where, on March 20, Ballantyne performed a colonoscopy to determine whether and to what extent surgery would be an appropriate next step in treating the Crohn’s disease. At that time, the decedent developed swelling of his arms and legs caused by excess fluid. Despite the swelling, the decedent was released from Yale-New Haven Hospital on March 21, and died early the next morning from excess fluid in his lungs.

The plaintiff filed her complaint in Superior Court on April 18, 1994, and the case proceeded to trial in May, 2001. On June 8, the jury found in favor of the plaintiff and awarded damages in the amount of $3,386,177.85, which included economic damages in the amount of $738,029.85. The court rendered judgment in accordance with the verdict on December 20, 2001, and the defendants appealed from that judgment to this court. We reversed the judgment and remanded the case to the trial court for a new trial, having concluded that the court abused its discretion in awarding the plaintiff peremptory challenges not authorized by General Statutes (Rev. to 2001) §§ 51-241 and 51-243 (a). Carrano v. Yale-New Haven Hospital, 84 Conn. App. 656, 659, 854 A.2d 771 (2004), rev’d in part, 279 Conn. 622, 904 A.2d 149 (2006). We also addressed the defendants’ claim that the plaintiff had presented insufficient evidence of economic damages and concluded that the evidence was insufficient as a matter of law. Id., 658 n.3.

The plaintiff, on the granting of certification, appealed to our Supreme Court. In Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 904 A.2d 149 (2006), the majority of the court, with two justices dissenting, held that the record did not support the defendants’ claim that they suffered harm as a result of the trial court’s award of additional peremptory challenges, and, even if it was assumed arguendo that the award had been improper, a new trial was not required. Id., 642. The Supreme Court agreed with this court, however, that the plaintiffs evidence of economic damages was insufficient. Id., 653. Accordingly, it reversed the judgment of this court in part and remanded the case “with direction to vacate the judgment for the plaintiff in the amount of $3,386,177.85 and to render judgment in favor of the plaintiff in the amount of $2,653,124.85.” Id., 661.

Pursuant to the order of the Supreme Court, the original judgment of December 20, 2001, was vacated. By way of an order dated November 9, 2006, this court remanded the matter to the trial court for further proceedings consistent with the decision of the Supreme Court. On January 22, 2007, the plaintiff filed a motion for an award of interest pursuant to § 37-3b. The defendants, in anticipation of the entry of a new judgment by the Superior Court, paid the amount of the reduced judgment on January 31, 2007. A hearing on the motion was held on April 23,2007, at which time the defendants filed their objection. In its memorandum of decision filed May 24, 2007, the court found that “the initial appeal to the Appellate Court by the defendants was bona fide and was in good faith, as evidenced by the decision in Carrano v. Yale-New Haven Hospital, supra, 84 Conn. App. 656, in which the Appellate Court reversed the decision of the trial court and ordered a new trial.” The court denied the plaintiffs motion for postjudgment interest, and this appeal followed.

The sole issue on appeal is whether the court abused its discretion in failing to award the plaintiff postjudgment interest pursuant to § 37-3b. Because the plaintiffs cause of action arose prior to May 27, 1997, the plaintiff relies on § 37-3b as first enacted in 1981. Section two of Public Acts 1981, No. 81-315, provides that postjudgment interest, calculated from the date of judgment, may be recovered in a personal injury action at a rate of no more than 10 percent per annum. The plaintiff conceded at oral argument that the court was not required to award postjudgment interest and that recovery of such interest was discretionary under the statutory provisions in effect at the time of the decedent’s death in 1992.

“Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Landry v. Spitz, 102 Conn. App. 34, 59, 925 A.2d 334 (2007). The plaintiff argues that the court abused its discretion “because there was no factual basis from which the court could have found that (1) money was not payable to the plaintiff and (2) the detention of the money by the defendants was rightfully withheld under the circumstances, postverdict.”

In Bower v. D’Onfro, 45 Conn. App. 543, 696 A.2d 1285 (1997), this court set forth the applicable criteria for reviewing a trial court’s award of postjudgment interest pursuant to § 37-3b, prior to the 1997 amendment, under the discretionary standard for recovery. “A decision to deny or grant postjudgment interest is primarily an equitable determination and a matter lying within the discretion of the trial court. . . . General Statutes [Rev. to 1985] § 37-3b provides in relevant part that interest at the rate of ten per cent a year, and no more, may be recovered and allowed in any action to recover damages for injury to the person . . . caused by negligence, computed from the date of judgment. In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . The court’s determination regarding the award of interest should be made in view of the demands of justice rather than through the application of any arbitrary rule. . . . Whether interest may be awarded depends on whether the money involved is payable . . . and whether the detention of the money is or is not wrongful under the circumstances.” (Citations omitted; internal quotation marks omitted.) Id., 550-51.

In the present case, the court, in denying the plaintiffs motion, found that the defendants’ appeal from its initial judgment was bona fide and was filed in good faith, as evidenced by the decision of this court reversing that judgment. The court noted that this court remanded the case for a new trial and that we expressly stated that the plaintiffs evidence of economic damages was insufficient as a matter of law. Further, although the Supreme Court reversed this court’s judgment in part, the trial court noted that the Supreme Court had agreed that the evidence was insufficient with respect to economic damages and that it reduced the plaintiffs recovery from $3,386,177.85 to $2,653,124.85.

The plaintiff has conceded that the defendants’ appeal was filed in good faith but argues that the court’s refusal to award postjudgment interest on that basis was an abuse of discretion because the defendants’ withholding of payment was wrongful. We first note that “[w]e have seldom found an abuse of discretion in the determination by a trial court of whether a detention of money was wrongful.” (Internal quotation marks omitted.) McCullough v. Waterside Associates, 102 Conn. App. 23, 33, 925 A.2d 352, cert. denied, 284 Conn. 905, 931 A.2d 264 (2007). The court reasonably could have concluded that the defendants’ detention of the money awarded by the jury was not wrongful when they initially prevailed on their appeal and a new trial had been ordered. Further, this court, and subsequently our Supreme Court, agreed with the defendants that the award of economic damages was not supported by the evidence. Although a divided Supreme Court ultimately upheld the plaintiff s judgment, it reduced the award of economic damages by a significant amount. Under those circumstances, a determination that the money was not wrongfully withheld clearly is supported by the record.

The plaintiffs argument also fails in light of our Supreme Court’s decision in MedValUSA Health Programs, Inc. v. MemberWorks, Inc., 273 Conn. 634, 872 A.2d 423, cert. denied sub nom. Vertrue, Inc. v. MedValUSA Health Programs, Inc., 546 U.S. 960, 126 S. Ct. 479, 163 L. Ed. 2d 363 (2005). In that case, in reviewing the plaintiffs claim that the trial court abused its discretion in denying its motion for prejudgment interest and postjudgment interest pursuant to General Statutes § 37-3a, our Supreme Court concluded: “The trial court cited as its primary reason for denying the plaintiffs motion for interest pursuant to § 37-3a that the defendant had not wrongfully withheld the money because its arguments in opposition to the application to confirm the award and in support of its motion to vacate the award were not frivolous. This was an appropriate equitable consideration within the discretion of the trial court. The trial court’s decision, therefore, was not an abuse of discretion.” Id., 666.

Here, both parties presented arguments to the court about the propriety of awarding postjudgment interest. The court, after citing applicable case law and the criteria to be considered in its determination of whether postjudgment interest would be appropriate under the circumstances of this case, concluded that the plaintiff should not recover postjudgment interest because the defendants’ appeal had been bona fide and had been filed in good faith. Upon review of the record, we conclude that the court did not abuse its discretion in making that determination.

The judgment is affirmed.

In this opinion the other judges concurred.

       This medical malpractice action also was brought by Sarah Carrano, the daughter of the decedent. The trial court rendered summary judgment against her, however, and she has not appealed for that judgment. Accordingly, we refer to Mary Carrano in both of her capacities as the plaintiff. We note from the docketing statement filed with this court that the plaintiff is now known as Mary Carrano Sholomicky.

       The plaintiff also brought this action against two additional physicians, Andrew Elliot and Elton Cahow. The court directed a verdict in their favor and that ruling was not appealed. Accordingly, we refer to Yale-New Haven Hospital, Ballantyne and Harris as the defendants.

       The new judgment represented the amount of the original judgment less all but $4976.85 of the economic damages of $738,029.85 awarded by the jury. The defendants did not challenge the sufficiency of the evidence concerning funeral costs, which the jury found amounted to $4976.85. Carrano v. Yale-New Haven Hospital, supra, 279 Conn. 642 n.23.

       General Statutes § 37-3b currently provides: “(a) For a cause of action arising on or after May 27, 1997, interest at the rate of ten per cent a year, and no more, shall be recovered and allowed in any action to recover damages for injury to the person, orto real orpersonal property, caused by negligence, computed from the date that is twenty days after the date of judgment or the date that is ninety days after the date of verdict, whichever is earlier, upon the amount of the judgment.
      “(b) If any plaintiff in such action files a postverdict or postjudgment motion or an appeal, the recovery of interest by such plaintiff shall be tolled and interest shall not be added to the judgment for the period that such postverdict or postjudgment motion or appeal is pending before the court. The provisions of this subsection shall not apply if the reason for the filing of a postverdict or postjudgment motion or appeal by the plaintiff is to reply to or answer a motion or appeal filed by a defendant.” (Emphasis added.)
      The decedent died on March 22, 1992. Because the plaintiffs cause of action arose prior to May 27, 1997, the version of the statute in effect at the time of the decedent’s death is controlling for purposes of determining whether posljudgment interest should be awarded. General Statutes (Rev. to 1991) § 37-3b, prior to its amendment in 1997, provided: “For a cause of action arising on or after October 1, 1981, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in any action to recover damages for injury to the person, or to real or personal property, caused by negligence, computed from the date of judgment.” (Emphasis added.)
      When the legislature enacted § 2 of Public Acts 1997, No. 97-58, it made the recovery of interest mandatory rather than discretionary for causes of action arising on or after May 27, 1997.


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. KENNETH MARTIN SELLS
    (AC 27951)
    Bishop, Beach and Mihalakos, Js.
    Argued September 8, 2008
    officially released February 24, 2009

      Michael O. Sheehan, special public defender, with whom, on the brief, were Cyd O. Oppenheimer and Richard A. Reeve, special public defenders, for the appellant (defendant).

      Melissa L. Patterson, deputy assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and David R. Shannon, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Kenneth Martin Sells, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), attempt to commit sexual assault in the first degree in violation of General Statutes § 53a-49 and 53a-70 (a) (1), and assault in the second degree in violation of General Statutes § 53a-60 (a) (1). On appeal, the defendant claims that the trial court improperly (1) allowed an expert medical witness to testily that the injuries suffered by the victim were “serious,” (2) denied his motion to suppress evidence taken from his motor vehicle, which was seized without a warrant and without his consent, and (3) denied his Batson challenge. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 7, 2005, Jane Doe, the victim, had a washing machine delivered to her house by two men, one of whom was the defendant. Because the washer hoses on the old washing machine could not be disconnected from the supply lines, the new appliance was connected to the old hoses. An offer by the defendant to return and reconnect the hoses was declined by the victim.

In the early morning hours of January 15, 2005, the victim was awakened by her cat growling. She then heard her downstairs side door being opened followed a short time later by her cat’s dish being kicked. She picked up her cordless telephone and dialed 911 several times, hanging up each time before speaking to anyone. Shortly thereafter, when she heard footsteps on her stairs, she picked up her flashlight. The victim then saw a head coming in her doorway and turned on her flashlight. Although she was not able to identify the defendant, the victim testified that her flashlight illuminated the face of the intruder.

Within one minute, the defendant picked up a chair and charged the victim. They grappled and she was thrown to the floor where she noticed the defendant wearing a black leather shoe with laces and a thick sole. She was then struck over the head with a red flashlight, and the defendant stomped on her back and face. This continued despite her pleas as to why he was doing this to her. Next, a bedsheet was wrapped around her head and neck and her pajama bottoms were ripped off. The defendant grabbed the victim by her hair, dragged her out of her bedroom and slammed her head against the wall in the hallway. He then dragged her into a bathroom and slammed her head into the side of the bathtub.

The defendant left the bathroom and shut the door, whereupon the victim started toward the window in an effort to escape. The defendant reentered the bathroom and told her to stay away from the window. When the defendant again left the bathroom, the victim opened the window and saw three police officers below the window. The victim yelled to the officers that there was a man in her house. At that time, her face was bloodied and she was hysterical. The victim subsequently was able to exit the house through the window to safety. The defendant was not apprehended at the scene.

The victim was taken to a hospital where she was treated for blunt head trauma, a laceration and an orbital fracture of the left eye socket. While at the hospital, she informed the police officers of the washer delivery. On January 15, 2005, when the police processed the crime scene at the victim’s home, they found a message on her answering machine in which the caller identified himself simply as Ken. They also found a red and black flashlight with the word “Sells” written on it, a Mets baseball hat, a fleece hat and a black cloth glove.

A DNA profile of the victim was consistent with the DNA profile found on the red flashlight. The victim was also a contributor to the DNA found on the Mets hat and the black glove. The defendant was a contributor to the DNA found on the fleece hat and the black glove. The victim testified that she had never seen the flashlight, hats or glove before the night she was attacked.

One officer responding to the 911 calls testified that while on the victim’s street, he saw a car parked just a short distance from where the victim lived. Forensic tests later concluded that the car seen by the officer was the defendant’s 1995 Buick LeSabre. A state criminalist testified that a subsequent inspection of the defendant’s vehicle revealed that the scrapings of the underside of the car matched paint on a stone found in a tire track near the victim’s house. A pair of black leather shoes were also seized from the trunk of the defendant’s car. DNA of the blood found on the shoelace of one of the shoes seized from the trunk was consistent with the victim’s DNA profile.

After a trial to the jury, the defendant was convicted of burglary in the first degree, attempt to commit sexual assault in the first degree and assault in the second degree. He was sentenced to a term of thirty-five years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the court abused its discretion by allowing the emergency room physician, Jose Pinero, to testify that the victim’s injuries were “serious in nature . . . .” The defendant argues that to find him guilty of assault in the second degree, the jury would have had to find that the victim’s injuries were “serious,” which is an ultimate question of fact. When Pinero testified that the victim’s injuries were “serious,” he went beyond the scope of permissible testimony and instead opined as to an ultimate question of fact, which is for the jury to decide. The defendant claims that Pinero’s testimony, therefore, harmed the defendant by substantially swaying the jury’s verdict.

We agree with the defendant that Pinero’s testimony concerning the serious nature of the victim’s injuries went beyond the scope of permissible testimony in that Pinero’s opinion was on an ultimate question of fact, which can be decided only by the jury. See State v. Smith, 35 Conn. App. 51, 70, 644 A.2d 923 (1994) (“[a]n expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact” [internal quotation marks omitted]). We do not agree, however, that the testimony harmed the defendant. The standard for determining whether an erroneous evidentiary ruling is harmful is “whether the jury’s verdict was substantially swayed by the error.” State v. Sawyer, 279 Conn. 331, 357, 904 A.2d 101 (2006) (en banc). Such an error “is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” State v. Randolph, 284 Conn. 328, 363, 933 A.2d 1158 (2007). “[W]hether [the improper admission of evidence] is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative . . . the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and . . . the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the [improperly admitted] evidence on the trier of fact and the result of the trial.” (Internal quotation marks omitted.) Id., 364.

The defendant admits that the victim’s injuries were physical injuries but argues that the seriousness of the injuries was debatable and for the jury alone to decide. He claims, therefore, that Pinero’s specific testimony that the victim’s injuries were serious in nature substantially swayed the jury to conclude that the physical injuries sustained by the victim were in fact serious. The defendant’s argument, however, is unavailing. Pin-ero was only one of two witnesses that testified as to the extent of the victim’s injuries. The victim testified that she suffered a fractured orbital floor, which caused her eye to recede into her eye socket and continued to cause her numbness around her eye and cheekbone. She further testified that she had had four or five stitches in the back of her head and that at the time of the trial, she still suffered pain in her left shoulder and left arm. Pinero’s testimony as to the extent of the victim’s injuries was cumulative of the victim’s testimony. Pinero testified that the victim suffered from swelling to the left side of her face, an inch long laceration at the back of her head that was bleeding and needed five staples to close, blood in her left ear and an orbital floor fracture to her left eye. Moreover, the defendant did not object to any of the graphic testimony given by Pinero. There was overwhelming evidence presented by both the victim and Pinero as to the victim’s injuries from which the jury reasonably could have found that the victim incurred “serious physical injury . . . .” We conclude, therefore, that the error was harmless.

II

The defendant next claims that the court improperly denied his motion to suppress the black leather Skech-ers brand shoes taken from the trunk of his car pursuant to a search warrant. The seizure of the car, however, was warrantless. The defendant concedes that there was probable cause to seize the car; nonetheless, he claims that his fourth amendment rights were violated because the car was not readily mobile at the time it was seized and that he had an enhanced expectation of privacy because he told the police that he was living in the car. The court denied the defendant’s motion. The following additional facts are necessary to our resolution of the defendant’s claim.

Prior to the hearing on the motion to suppress, the parties stipulated that the department of motor vehicles listed the defendant’s address as 450 Overland Drive in Stratford. On January 15, 2005, the defendant drove the car into the driveway at 450 Overland Drive. Subsequently, the defendant voluntarily accompanied apolice officer to the police station for questioning and upon the defendant’s return to 450 Overland Drive, the car was seized by the police without a warrant. It was agreed that the police had probable cause to obtain a warrant to seize the car.

“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. Hall, 110 Conn. App. 41, 50, 954 A.2d 213 (2008).

In the present matter, we agree with the court’s well reasoned decision filed May 4, 2006, and conclude that the court properly denied the motion to suppress.

Ill

The defendant’s final claim is that the court improperly denied his challenge to the state’s peremptory strike of the only African-American venireperson. The following facts are necessary to our resolution of the defendant’s claim.

During the course of jury selection, the state exercised a peremptory challenge against C. The defendant and C are both African-American. The defense raised a Batson challenge. The prosecutor responded that he was exercising his challenge on two grounds: (1) C had served one year in prison for a failure to appear conviction and (2) C was related to Marliek Mourning, whom the prosecutor previously had prosecuted. The underlying charge for the failure to appear conviction was for a misdemeanor charge of sixth degree larceny that had occurred more than seven years prior to this trial. During questioning, however, C stated that he believed that the court had treated him fairly and, further, that he had been unaware of the prosecution of Mourning. The court, while noting that C was the only African-American venireperson, denied the Batson challenge because there was no evidence of any pattern of discrimination shown and that legitimate reasons for excluding C had been shown.

We are bound to follow the dictate of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), in determining whether the jury was selected in a racially discriminatory manner. “In Batson . . . the United States Supreme Court recognized that a claim of purposeful racial discrimination on the part of the prosecution in selecting a jury raises constitutional questions of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. . . . [T]he Equal Protection Clause [of the fourteenth amendment] forbids the prosecutor to challenge potential jurors solely on account of their race . . . .” (Internal quotation marks omitted.) State v. Monroe, 98 Conn. App. 588, 590-91, 910 A.2d 229 (2006), cert. denied, 281 Conn. 909, 916 A.2d 53 (2007).

“Discrimination in the selection of a jury . . . harms the litigants, the excluded jurors, and the community.” Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 224, 645 A.2d 557, cert. denied, 231 Conn. 915, 648 A.2d 154 (1994). “Under Connecticut law, [o]nce a [party] asserts a Batson claim, the [opposing party] must advance a neutral explanation for the venireperson’s removal. . . . The [party asserting the Batson claim] is then afforded the opportunity to demonstrate that the [opposing party’s] articulated reasons are insufficient or pretextual. . . . [T]he trial court then [has] the duty to determine if the [party asserting the Batson claim] has established purposeful discrimination. . . . The [party asserting the Batson claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination.” (Internal quotation marks omitted.) State v. Monroe, supra, 98 Conn. App. 591. “[T]he trial court’s decision on the question of discriminatory intent represents a finding of fact .... Accordingly, a . . . court’s determination that there has or has not been intentional discrimination is afforded great deference and will not be disturbed unless it is clearly erroneous.” (Internal quotation marks omitted.) Id., 592. “Nonetheless, because of the constitutional implications of the alleged defects in the jury selection process, in reviewing the defendant’s claims under the state constitution, we will subject the findings of the trial court to the same independent and scrupulous examination of the entire record that we employ in our review of constitutional fact-finding .... We invoke that heightened review, however, within the broader context of the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) State v. Morales, 71 Conn. App. 790, 802-803, 804 A.2d 902, cert. denied, 262 Conn. 902, 810 A.2d 270 (2002).

As noted, after the defendant asserted his Batson claim, the state responded with two reasons for its peremptory challenge, which the court found to be race neutral. At that point, the burden of persuasion rested on the defense to demonstrate to the court that the state purposefully discriminated against this potential juror. State v. Hamlett, 105 Conn. App. 862, 878, 939 A.2d 1256, cert. denied, 287 Conn. 901, 947 A.2d 343 (2008).

The defendant argues that neither of the reasons articulated by the state in support of its excusal was sufficient to overcome the Batson challenge. First, the defendant argues that the state failed to elaborate why the failure to appear conviction rendered C unqualified. Second, the defendant argues that there was no record that Mourning, who had been prosecuted by the prosecutor, was in fact a close relative of C. The defendant further argues that although there may have been a familial relationship, C hardly knew Mourning and knew nothing of his prosecution. The defendant concludes, therefore, that both reasons offered by the state were clearly pretextual. We disagree. “[A]n arrest record . . . constitutes a neutral ground for the state’s exercise of a peremptory challenge to excuse a black venireperson.” State v. Smith, 222 Conn. 1, 14, 608 A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992). Further, use of a peremptory challenge of a venireperson who has a family member whom he believes has been treated unfairly by the police is a race neutral ground for exercising the challenge. State v. Jackson, 95 Conn. App. 400, 409-10, 896 A.2d 137, cert. denied, 279 Conn. 904, 901 A.2d 1226 (2006).

We cannot say, in light of C’s conviction for failure to appear on an underlying misdemeanor charge of sixth degree larceny and his relation to a person whom the prosecutor personally prosecuted, that the prosecutor’s concern that the venireperson might harbor ill will toward the state was a pretext for excusing C for a prohibited reason. Although C stated that he felt no ill will against the state or the court system, a “prosecutor is not bound to accept the venireperson’s reassurances, but, rather, is entitled to rely on his or her own experience, judgment and intuition in such matters.” (Internal quotation marks omitted.) State v. Hamlett, supra, 105 Conn. App. 879.

We conclude that the court’s rejection of the defendant’s Batson challenge was not clearly erroneous. See State v. Monroe, supra, 98 Conn. App. 592; State v. Morales, supra, 71 Conn. App. 802. “[T]he fact-bound determination concerning the propriety of the use of peremptory challenges is a matter that necessarily must be entrusted to the sound judgment of the trial court, which, unlike an appellate court, can observe the attorney and the venireperson and assess the attorney’s proffered reasons in light of all the relevant circumstances.” State v. Hodge, 248 Conn. 207, 261, 726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999). Here, the court determined that the reasons offered by the prosecutor for striking C were race neutral and not pretextual. See State v. Monroe, supra, 596. We conclude that the court properly determined that the state had not exercised its peremptory challenge in a racially discriminatory manner.

The judgment is affirmed.

In this opinion the other judges concurred.

        See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identity the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       The following colloquy took place between the prosecutor and Pinero:
      “[The Prosecutor]: [D]o you have an independent recollection of treating [the victim] or what she looked like?
      “[The Witness]: Yes. Basically, she was pretty frazzled and upset when she initially arrived.
      “[The Prosecutor]: What did she look like—did you examine her?
      “[The Witness]: Yes, I did.
      “[The Prosecutor]: What injuries did you note, if any?
      “[The Witness]: She has several injuries. Most significantly, she had a lot of swelling to the left side of her face, which was already bruising up. She could still open up her left eye. She also had a cut, a laceration, to the left posterior part of her scalp, about an inch long, that was bleeding. There was blood in her left ear as well. Those are the ones that stand out the most. She had a couple of other scrapes, multiple scratches were on her forehead and face and scalp.
      “[The Prosecutor]: Okay. And, in regard to the injury to the back of her head, the laceration, that was bleeding when you treated her?
      “[The Witness]: Yes.
      “[The Prosecutor]: How was that treated?
      “[The Witness]: That needed to be stapled shut.
      “[The Prosecutor]: How many staples did it take to staple that shut?
      “[The Witness]: Five.
      “[The Prosecutor]: Is that the type of wound that, based on your training and experience, you—you would expect to scar?
      “[The Witness]: Yes.
      “[The Prosecutor]: And, were any X rays or CAT [computerized axial tomography] scans done of the victim’s head or body?
      “[The Witness]: We had multiple X rays and because of the nature of the head trauma, with the blood in the ear and the swelling to the face, we did get a CAT scan of her head, which did reveal that she had a fracture to the floor of the left orbit of the eye.
      “[The Prosecutor]: Now, that floor, what is that composed of, what was fractured, presumably?
      “[The Witness]: It’s—the floor of the orbit is thin bone and that can be fractured with any blunt trauma, such as having someone’s head and bashing it up against a wall or tub or being punched can also fracture that. She did not, fortunately, have entrapment, sometimes, the eye muscles get stuck and, in which case, she would need surgery to fix that. Fortunately, she didn’t have that.
      “[The Prosecutor]: Was—is it the type of injury that could lead to an eye being recessed within the eye socket by millimeters?
      “[The Witness]: Oh, yes, it could cause problems looking in certain directions.
      “[The Prosecutor]: And, based on your training and experience as sixteen years as an emergency room doctor, are these types of injuries that would be consistent with being punched or being kicked?
      “[The Witness]: Yes.
      “[The Prosecutor]: Ultimately, what was the diagnosis of this patient?
      “[The Witness]: It was, basically, blunt head trauma, she had a laceration and she had an orbital floor fracture of her left eye.
      “[The Prosecutor]: Did she—was she in any dis—discomfort at all?
      “[The Witness]: She was uncomfortable. She had enough swelling and injuries that, yeah, she was quite uncomfortable.
      “[The Prosecutor]: Doctor, based on your experience, would you consider these injuries serious in nature?
      “[The Witness]: Yeah. Yes.”

       The court’s memorandum of decision on the motion to suppress states that the defendant did not contest the existence of probable case at the hearing. The court, in any event, found that the stipulated facts established probable cause.

       To protect the privacy of the juror, we decline to identify the juror by name. See State v. Beavers, 99 Conn. App. 183, 193 n.5, 912 A.2d 1105, cert. denied, 281 Conn. 925, 918 A.2d 276 (2007).