author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. JAMES ROCCO
    (AC 19344)
    Spear, Hennessy and Mihalakos, Js.
    Argued January 21
    officially released July 4, 2000

      Michael L. Moscowitz, special public defender, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and David J. Strollo, senior assistant state’s attorney, for the appel-lee (state).
   Opinion

SPEAR, J.

The defendant, James Rocco, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and kidnapping in the second degree in violation of General Statutes § 53a-94. He claims that (1) § 53a-70 (a) (1) is unconstitutionally vague as applied to the facts of this case and (2) the court improperly denied his motion for judgment of acquittal on the charge of kidnapping in the second degree because the evidence of an abduction was insufficient to support his conviction on that charge. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim had a romantic relationship with the defendant for five months. On March 25,1995, the cou-pie traveled to Mystic during the day and at 8 p.m. stopped at a bar in Branford. After the victim told the defendant that she wanted to leave, the defendant became upset and left the victim at the bar. The victim then left the bar and returned to her apartment in New Haven.

Shortly after 9 p.m., the victim went out with a male friend. She returned to her apartment between 1 a.m. and 1:30 a.m., where, unbeknownst to her, the defendant was waiting. When the victim entered her living room, the defendant slammed the door, picked up the victim by her hair and threw her across the room, over a couch and into an entertainment center. The defendant cursed at the victim, demanded to know where she had been, accused her of “fooling around” and threatened to kill her. He then hit her with a hammer about twenty times on her forehead and temple and kicked her legs, poured soda on her head, ripped off her necklace, bracelet and earrings, and took all of the telephones off their receivers so that the victim could not make any calls. The victim eventually urinated on her carpet because the defendant repeatedly refused to allow her to go to the bathroom.

The defendant then took a knife and cut off the victim’s clothes, ripped off her brassiere and left her sitting in the middle of the floor. He then ordered the victim to take a shower because she was “dirty, scummy, crummy.” When she told him that she had finished showering, he told her, “You’re not done, clean up with this,” and he handed her an old enema bag that had been in the garage. The victim refused to use the enema bag, but the defendant filled it with water and forced the tube into her vagina. After the water had completely drained out of the bag, the defendant filled it again with ice cold water and repeated the process.

The victim slept in the bathroom for part of the night. When she awoke the next morning, she asked the defendant if she could call her children. He permitted her to do so, but told her to tell them that she had been in a car accident. He also told her that she was not to invite the children to her apartment. Although the victim felt sick and dizzy, the defendant refused to allow her to seek medical attention. He eventually left the apartment that afternoon at 1 p.m., and the victim went to Yale-New Haven Hospital.

The defendant was subsequently arrested and charged with sexual assault in the first degree, kidnapping in the second degree, attempt to commit assault in the first degree, assault in the second degree and tampering with a witness. The defendant was convicted of all of the charges except tampering with a witness. This appeal followed.

I

The defendant claims that his conviction of sexual assault in the first degree under § 53a-70 (a) (1) should be vacated because the statute is unconstitutionally vague as applied to the facts of this case. Specifically, he claims that he was not given fair warning that his conduct was violative of the statute. We disagree.

Although the defendant’s claim was not raised at trial, we will review it pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id.

The first two prongs of Golding are satisfied. First, the record is adequate to review the defendant’s claim because it reflects both that he was convicted under § 53a-70 (a) (1) and the basis of his conviction. See State v. Indrisano, 228 Conn. 795, 800, 640 A.2d 986 (1994). Second, a claim that a statute is unconstitutionally vague implicates a defendant’s fundamental due process right to fair warning. See State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988). The defendant, however, has failed to meet the third requirement of Golding that a constitutional violation clearly exists and clearly deprived him of a fair trial.

To demonstrate that the statute is unconstitutionally vague as applied to him, the defendant “must. . . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the [victim] of arbitrary and discriminatory enforcement.” (Internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 322, 732 A.2d 144 (1999). “As a matter of the due process of law required by our federal and state constitutions, a penal statute must be sufficiently definite to enable a person to know what conduct he [or she] must avoid. ... [A] law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law.” (Citation omitted; internal quotation marks omitted.) State v. Ehlers, 252 Conn. 579, 584, 750 A.2d 1079 (2000).

We conclude that the defendant had fair warning that § 53a-70 (a) (1) prohibited his conduct. Section 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person . . . .” General Statutes § 53a-65 (2) defines “sexual intercourse” as “vaginal intercourse . . . between persons . . . . Penetration may be committed by an object manipulated by the actor into the genital . . . opening of the victim’s body.”

The defendant contends that he was not given fair warning that his conduct violated the statute because “the insertion of the end of the hose from the enema bag was for the purpose of cleaning the victim” and was not sexual in nature. Whatever purpose motivated the defendant’s conduct, § 53a-70 (a) (1) makes it clear to a person of common intelligence that forcible penetration of the vagina with an object is prohibited. See State v. Faria, 47 Conn. App. 159, 168, 703 A.2d 1149 (1997), cert. denied, 243 Conn. 965, 707 A.2d 1266 (1998) (“[t]he intent required for sexual assault is not sexual gratification but the intent to use force”). Accordingly, the defendant should have known that forcing a tube into the victim’s vagina was violative of the statute.

II

The defendant next claims that the court improperly denied his motion for judgment of acquittal because there was insufficient evidence to support his conviction of kidnapping in the second degree. Specifically, he claims that the state failed to present sufficient evidence to establish that he abducted the victim. We disagree.

“We review a claim of insufficiency of the evidence in accordance with a well established two part test. We first construe the evidence presented at trial in a manner favorable to sustaining the verdict, and then determine whether the jury could reasonably have found, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sauris, 227 Conn. 389, 395, 631 A.2d 238 (1993).

After reviewing the evidence presented at trial and the inferences reasonably drawn therefrom, the jury reasonably could have concluded, beyond a reasonable doubt, that the defendant abducted the victim. General Statutes § 53a-94 (a) provides: “A person is guilty of kidnapping in the second degree when he abducts another person.” General Statutes § 53a-91 (2) provides that abduct “means to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.”

The evidence presented at trial was that the defendant refused to let the victim leave her apartment to seek medical attention and, earlier, refused to let her leave her living room to go to the bathroom. He also took all of the telephones off their receivers and allowed the victim to call her children only if she agreed to say what he told her to say. The defendant restrained the victim by beating her with a hammer and threatening to take her life. This evidence provides an ample basis for the jury’s determination that the defendant abducted the victim. Therefore, the evidence was sufficient to support the defendant’s conviction of kidnapping in the second degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also was convicted of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). He did not appeal from those convictions.

       The victim testified that the defendant occasionally stayed at her apartment and kept some of his belongings there.

       The defendant supports his claim that the statute is unconstitutionally vague by positing the hypothetical that “a parent who inserts a thermometer into [the rear end of] a child would [commit] sexual assault whether it is by the use of force or not.” We do not consider that hypothetical situation here because the defendant does not contend that his first amendment rights were implicated. “Where a statute is attacked as void for vagueness, and no first amendment rights are implicated, the constitutionality of the statute is determined by its applicability to the particular facts at issue.” State v. Ryan, 48 Conn. App. 148, 153, 709 A.2d 21, cert. denied, 244 Conn. 930, 711 A.2d 729, cert. denied, 525 U.S. 876, 119 S. Ct. 179, 142 L. Ed. 2d 146 (1998).

       We analyze the defendant’s claim only with respect to his claim of inadequate notice of the prohibited conduct because the defendant has not alleged that he was the victim of arbitrary and discriminatory enforcement under § 53a-70 (a) (1).


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. EDDIE PLAYER
    (AC 18121)
    Schaller, Spear and Daly, Js.
    Argued January 20
    officially released July 4, 2000

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

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Mary Rose Pálmese, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Eddie Player, appeals from the judgment of conviction, rendered after a jury trial, of sale of narcotics in violation of General Statutes § 21a-278 (b), possession of narcotics in violation of General Statutes § 2 la-279 (a) and sale of a narcotic substance within 1500 feet of a public housing project and an elementary school in violation of General Statutes § 21a-278a (b). The defendant claims that the court improperly (1) admitted the testimony of a drug addicted informant who allegedly used police funds to buy illegal drugs for her own use and (2) permitted a separate conviction for the violation of § 21a-278a (b) because that statute is a sentence enhancement provision rather than a separate substantive offense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 9, 1996, the New Britain police department employed Vera Pottle as an informant to buy drugs at the comer of Irwin Place and North Street. Pottle bought $20 worth of crack cocaine from the defendant in a vacant lot that was within 1500 feet of an elementary school and a public housing project. She took the crack cocaine to Officer Jerry Chrostowski who had driven her to the area and waited nearby. Pottle and Chrostowski went back to the lot, and Pottle identified the defendant as the person who sold the cocaine to her.

The defendant was arrested and charged with sale of narcotics, possession of narcotics, and sale of a narcotic substance within 1500 feet of an elementary school and a public housing project. Pottle testified at the defendant’s trial and a jury convicted him of all charges. The court imposed a total effective sentence of eight years, and this appeal followed.

I

The defendant first claims that by admitting the testimony and evidence obtained from Pottle, the court deprived him of his constitutional right to a fair trial. Specifically, he contends that the evidence should have been excluded because the police knew, or should have known, that Pottle was a drug addict who would use the money that she earned as an informant to buy drugs for herself at a later time. The defendant claims that this actual or imputed knowledge made the police accessories to a crime and, therefore, the evidence obtained as a result of such illegal conduct should have been excluded as the “fruit of the poisonous tree.” This claim was not preserved at trial, but the defendant requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We decline to review this claim because the record is inadequate.

In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id.

The defendant’s claim fails the first prong of Golding. “The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient . . . as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” Id., 240.

Because this claim was not made at trial, there are no findings of fact as to whether Pottle was paid, what she did with the payment, if there was one, what the police officers knew or should have known, or whether the conduct of the police officers was such as to make them accessories to a crime or crimes. The defendant requests that we find facts and draw inferences based on the testimony of the witnesses. It is axiomatic that this court does not make factual determinations. See Connecticut National Bank v. Giacomi, 233 Conn. 304, 333, 659 A.2d 1166 (1995). We, therefore, decline to review this claim because the record is inadequate.

II

The defendant next claims that his separate conviction under § 21a-278a (b) should be reversed and the case should be remanded for a new trial because that statute is a sentence enhancement provision to § 21a-278 (b), rather than a separate substantive offense. We disagree.

“Our analysis is governed by well established principles of statutory construction. Statutory construction is a question of law and therefore our review is plenary.” (Internal quotation marks omitted.) State v. Dash, 242 Conn. 143, 146-47, 698 A.2d 297 (1997). To distinguish an enhancement provision from a separate substantive offense we look to the intent of the legislature. “In seeking to discern that intent, we [first] look to the words of the statute itself.” Id.

The plain language of § 21a-278a (b) indicates that the legislature intended that this statute be a separate substantive offense from § 21a-278 (b). Although § 21a-278a (b) refers to § 21a-278, it requires a separate and distinct element of intentionally selling narcotics within 1500 feet of a public elementary school or public housing project, and this element must be charged and proven beyond a reasonable doubt to obtain a conviction under § 21a-278a (b). Further, the legislative history of § 21a-278a (b) supports our conclusion that it is a separate offense. During debate on this provision, its sponsor, Representative William Kiner, observed, “Three new categories of crime are also in this file copy, basically what it does is to say that anyone . . . who sells within 1000 feet of a school . . . would now be guilty of a crime and as such we would be adding on two years to an already five year minimum sentence.” 30 H.R. Proc., Pt. 24, 1987 Sess., p. 8656. Additionally, Representative Richard Tulisano remarked, “The body of this bill deals with a new crime dealing with sale near a schoolhouse”; (emphasis added) id., p. 8658; and Representative Robert Jaekle commented that “we’re talking about a new criminal law.” (Emphasis added.) Id., p. 8712.

Our holding today is also supported by State v. Denby, 235 Conn. 477, 481, 668 A.2d 682 (1995). In Denby, while our Supreme Court did not directly address the issue of whether § 21a-278a (b) is a sentence enhancement provision, it disagreed with our view that, pursuant to that statute, the state “was not required to prove that the defendant specifically intended to sell within the 1000 foot zone . . . .’’Id. The court, however, held that “the plain language of § 21a-278a (b) requires as an element of the offense an intent to sell or dispense the narcotics at a location that is within 1000 feet of a school.” Id., 482. The court held that the state does not have to prove that a defendant knew that the location was within the zone. Because § 21a-278a (b) requires the state to prove beyond a reasonable doubt that the defendant intended to sell narcotics at a location that is within the 1500 feet zone, we conclude that the statute creates a separate substantive offense and is not merely a penalty enhancement provision.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufacturers, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . .”

       General Statutes § 21a-279 (a) provides: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school, a public housing project or a licensed child day care center . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. . .

       The court did not impose a sentence for the conviction of possession of narcotics.

       At the time Denby was decided, the proximity distance to school property for a violation under the statute was 1000 feet. See General Statutes (Rev. to 1991) § 21a-278 (b).


author: HENNESSY, J.

text:
    JACK A. HALPRIN, INC. v. HERMITAGE INSURANCE COMPANY
    (AC 19196)
    O’Connell, C. J., and Hennessy and Zarella, Js.

    Argued February 22
    officially released July 4, 2000

      John J. Resnik, with whom, on the brief, was Emily Resnik Conn, for the appellant (plaintiff).

      Jeff Gold, with whom was Robert P. Pagano, for the appellee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

HENNESSY, J.

The plaintiff, Jack A. Halprin, Inc., appeals from the judgment of the trial court denying his claim for recovery for property damage under an insurance policy written by the defendant, Hermitage Insurance Company. The plaintiff claims that the court improperly (1) determined that an endorsement to the insurance policy did not create an exception to the general exclusions section of the policy and (2) failed to find that the insured had changed the size of the building where the damage occurred. We disagree.

The court had before it the following facts. The plaintiff leased a building it owned in New Haven to Patrick Reilly and Golden Keys, Inc., doing business as Copa Cabana, a nightclub. The lessees, without permission from the plaintiff, removed a portion of the roof of the building, resulting in property damage that the plaintiff had to repair. The plaintiff sued the lessees and obtained a judgment in the amount of $102,783, which remains unsatisfied. Pursuant to General Statutes § 38a-321, the plaintiff brought an action against the defendant, which insured Golden Keys, Inc. The defendant denied liability, stating that the property damage was not covered under the insurance policy. The court rendered judgment for the defendant, and this appeal followed.

“ ‘It is the function of the court to construe the provisions of the contract of insurance.’ Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634, 418 A.2d 944 (1979). Our review of the trial court’s decision of this issue is de novo. ‘Unlike certain other contracts . . . where . . . the intent of the parties and thus the meaning of the contract is a factual question subject to limited appellate review . . . construction of a contract of insurance presents a question of law for the court which this court reviews de novo.’ . . . Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 58, 588 A.2d 138 (1991).” Flint v. Universal Machine Co., 238 Conn. 637, 642-43, 679 A.2d 929 (1996).

The plaintiff claims that the court improperly determined that an endorsement to the insurance policy did not create an exception to the general exclusions section of the policy. The plaintiff argues that while there is a provision in the policy excluding damage to property rented by the insured,* ** this exclusion must be read in conjunction with an amendment to the policy that carves out an exception to all the exclusions.* * According to the plaintiff, this exception in the amendment states that coverage is not provided for structural alterations that do not involve changing the size of or moving buildings or other structures. In other words, coverage is provided for structural alterations that do involve changing the size of buildings. We disagree.

“A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” Downs v. National Casualty Co., 146 Conn. 490, 494-95, 152 A.2d 316 (1959). “The court must interpret the insurance contract as a whole with all relevant provisions considered together.” Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 705, 569 A.2d 1131 (1990).

In its memorandum of decision, the court correctly pointed out that the plain language of that portion of the insurance policy titled “Liability Coverage” states that the policy covers damage from bodily injury or property damage, and then lists certain exclusions from such coverage. Under the exclusions section, the policy provides that the insurance does not apply to property damage to property owned or occupied by or rented to the insured. The court found that the judgment obtained by the plaintiff was for property damage to property occupied by and rented to the insured. The plaintiff does not dispute this fact.

The plaintiff, however, urged the court to construe the endorsement to the policy, titled “Amendment— Limits of Liability,” as affecting the property damage exclusion. The court found that the endorsement does not pertain to that exclusion, but rather, only clarifies the treatment of multiple occurrences and the calculation of an aggregate limit. We agree. The language relied on by the plaintiff in the amended limits of liability section, which is the same wording as in the original policy, does not alter the exclusions set forth in the body of the policy. Rather, it indicates that under no circumstances will the limits of coverage be affected by damage caused by a contractor if the work at issue did not involve altering the size of the leased premises. Accordingly, we conclude that the court properly rendered judgment for the defendant, as the property damage at issue is excluded from coverage under the insurance policy.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because we determine that the endorsement to the insurance policy does not create an exception to the exclusions section of the policy, it is not necessary to reach the issue of whether the property damage “changed the size of the building.” We therefore decline to review the plaintiffs second claim.

       General Statutes § 38a-321 provides: “Each insurance company which issues a policy to any person, firm or corporation, insuring against loss or damage on account of the bodily injury or death by accident of any person, or damage to the property of any person, for which loss or damage such person, firm or corporation is legally responsible, shall, whenever a loss occurs under such policy, become absolutely liable, and the payment of such loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, damage or death occasioned by such casualty. No such contract of insurance shall be cancelled or annulled by any agreement between the insurance company and the assured after the assured has become responsible for such loss or damage, and any such cancellation or annulment shall be void. Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.”

       The insurance policy provides:
      “BODILY INJURY LIABILITY
      “PROPERTY DAMAGE LIABILITY
      “I. The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies . . .

        “This insurance does not apply: (k) to property damage to (1) property owned or occupied by or rented to the insured . . . .”

       The insurance policy provides:
      “AMENDMENT—LIMITS OF LIABILITY
      “Regardless of the number of (1) insureds under this policy, (2) persons or organizations who sustain bodily injury or property damage, or (3) claims made or suits brought on account of bodily injury or property damage, the company’s liability is limited as follows . . . (b) . . . the total liability of the company for all damages because of all bodily injury and property damage . . . which is described in any of the numbered subparagraphs below shall not exceed the limit of liability stated in the Schedule of this endorsement as ‘aggregate’ ... (2) all property damage arising out of and occurring in the course of operations performed for the named insured by independent contractors and general supervision thereof by the named insured, including any such property damage for which liability is assumed under any incidental contract relating to such operations, but this subpara-graph (2) does not include property damage arising out of maintenance or repairs at premises owned by or rented to the named insured or structural alterations at such premises which do not involve changing the size of or moving buildings or other structures . . . .”

       See footnote 3.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. DUANE BANKS
    (AC 16825)
    Schaller, Hennessy and Mihalakos, Js.
    Argued January 27
    officially released July 4, 2000

      Susan M. Hankins, assistant public defender, with whom were Pamela Chambers and Mena Juliet Bonna-zoli, certified legal interns, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Warren Maxwell, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Duane Banks, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-8, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (4) and robbery in the third degree in violation of General Statutes §§ 53a-136 and 53a-136a. On appeal, the defendant claims that the court improperly (1) admitted into evidence statements he made to the police, (2) admitted evidence of his prior convictions of robbery and larceny, and denied his request to try to the court the count alleging criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c, (3) deprived him of a fair trial by allowing prosecutorial misconduct by the state during its closing argument and (4) denied him a fair trial by giving a supplemental instruction to the jury regarding physical items that were referred to by the prosecution but that were not admitted into evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 13, 1995, at approximately 10:30 a.m., two masked men with silver handguns robbed a jewelry store located on Weston Street in Hartford. An individual named Cabbage Cole was the driver of the escape vehicle. As the vehicle was leaving the scene, it crashed into another vehicle at an intersection. Cole died from a gunshot wound to the chest that he had sustained during the robbery. The front seat passenger, who was masked, exited the vehicle, forced the operator of a red Ford Taurus that was in the immediate vicinity out of the car at gunpoint and fled in that vehicle.

The defendant was known to reside at the apartments of his girlfriend, Carolyn Edwards, located at 116 Brook Street, and his mother, located at 556 Blue Hills Avenue, both in Hartford. The Ford Taurus was found one block away from his mother’s apartment shortly after the crime. Detective Robert Lawlor of the Hartford police department visited William King, who previously had participated in criminal activities with Cole, and saw the defendant in King’s apartment.

On April 14, 1995, at 7:30 a.m., the police executed a search warrant at the home of the defendant’s mother. They uncovered a pellet handgun in a room described as a junk room containing some of the defendant’s clothes and personal belongings.

Subsequently, Lawlor and Detective Paul Sherokow, along with three Hartford police officers, went to Edwards’ apartment, knocked on the door and announced that they were from the Hartford police department. Edwards opened the door, gave her consent for the police to enter and stated that the defendant was not there. The defendant then appeared in a pair of boxer shorts. Both detectives were dressed in plain clothes and had their guns in holsters. Lawlor told the defendant that they believed he had been involved in an armed robbery that occurred the day before and asked the defendant if he would come to the police station for an interview. The defendant agreed. The defendant was allowed to return to his bedroom to change into his clothes. The officers accompanied him into his bedroom out of concern that he might secure a gun.

The officers were aware that the defendant had been convicted of a previous robbery and other crimes, and that he was an associate of Cole. Although the officers considered the defendant a strong suspect, they had not concluded that there was probable cause to arrest him in connection with the robbery of April 13. While he was still in the apartment, the defendant, not in response to any police questions, began to discuss the events of April 13. Lawlor immediately advised him to cease any such discussion, to remain silent and not to talk until he was at the police station.

At the police station, the defendant gave an oral statement confessing his participation in the crime and, shortly thereafter, was arrested. On May 15, 1995, the defendant, while an inmate at the Corrigan correctional institution, met with Lawlor and Sherokow, and made various changes to his prior statement. Subsequently, the defendant gave a third statement, in writing, when he again met with the police on May 25, 1995. On this occasion, the defendant’s attorney was present. Additional facts will be set forth as necessary.

I

We first consider the defendant’s claim that the court improperly denied his motion to suppress successive oral and written statements made following his allegedly having been seized without probable cause. The defendant claims that the statements were involuntary and were the tainted product of his illegal arrest. We find this claim to be without merit.

The trial court reasonably could have found the following additional facts. On April 14,1995, when Lawlor and Sherokow asked the defendant to come to the police station to talk, they did not place the defendant in restraints or handcuffs. He was taken to the police station in an unmarked police car, which did not have a divider between the front and back seats. Lawlor and Sherokow sat in the front seat of the car, and the defendant sat alone without restraints in the rear seat. The car’s rear doors were not self-locking. The defendant did not ask if he could drive to the police station alone and entered the police car voluntarily.

At the police station, the defendant was provided with a muffin and coffee, and was allowed to walk around the office. The defendant had access to the bathroom and a telephone. Before the defendant gave his oral confession, the police did not consider him to be in custody or under arrest, and he was at liberty to leave the police station, to call an attorney or to return home at any time.

Before he made any statement, the defendant received his Miranda rights and warnings. He signed the standard waiver of rights form, placing his initials on each of the five waiver paragraphs, before making any confession. The defendant thereafter gave an oral statement confessing to his participation in the crime. The defendant sat with Lawlor for nearly two hours in front of a word processor as he made his statement. The confession was then read, signed and sworn to by the defendant. During this two hour period, the defendant was not restrained or shackled. The detective’s gun remained out of sight in his desk.

On or about May 15, 1995, the defendant, while an inmate at the Corrigan correctional institution, initiated a call to Lawlor to clarify and modify his April 14, 1995 statement. Sometime later, Lawlor and Sherokow visited the defendant at the institution. The defendant expressed a desire to talk to the police, despite being represented by counsel. The defendant was again given his Miranda warnings and signed a waiver of those rights. The defendant wanted to change his statement relating to the use of a silver handgun instead of the pellet gun that he had mentioned in his first confession. He also admitted discarding this handgun in the area of Ledyard. The defendant also made some changes to his statement relating to his clothing and to the involvement of King, a third participant in the robbery.

On May 25, 1995, the defendant gave another written statement to the police. The defendant again signed a waiver of rights form prior to signing the statement of May 25. This statement was signed at the Hartford criminal courthouse with the advice and assistance of his personal attorney, and was sworn to by the defendant before a supervising inspector empowered to take oaths. At this time, the defendant advised his counsel that the first confession was untrue in part and that the May 25 confession was now accurate. The defendant did not state that any of his statements were involuntary or that he was signing under duress. On June 30, 1995, the defendant told his attorney that his confession of May 25, 1995, was untrue.

The defendant and Edwards testified at the suppression hearing that the police opened the apartment door on April 14, 1995, and that Lawlor had his gun drawn and shouted, “Get down, Duane, on the floor.” Edwards claimed that she was pushed aside and that the police handcuffed the defendant while he lay on the floor. The defendant claims that at this point, he was unlawfully arrested. The court, however, did not find the testimony of either the defendant or Edwards credible.

A

We first address the defendant’s claim that the court improperly denied his motion to suppress his inculpa-tory statements on the ground that he was subject to a warrantless arrest without probable cause at his apartment. The essence of the defendant’s claim is that he was in police custody both at his apartment and at the police station, thereby rendering him effectively seized and under arrest. The defendant argues that because probable cause did not exist at the time of his arrest, his confession should have been suppressed. We disagree.

“It is well settled that [i]f the police obtain physical evidence or statements as the result of the seizure of a person without probable cause, in violation of the constitution of Connecticut, article first, §§ 7 and 9, [or the fourth amendment to the United States constitution] the fruit of the poisonous tree doctrine requires that the evidence be suppressed as the product of the unlawful seizure. State v. Greenfield, 228 Conn. 62, 67, 634 A.2d 879 (1993); see Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).” (Internal quotation marks omitted.) State v. James, 237 Conn. 390, 404, 678 A.2d 1338 (1996). Thus, “the trial court must make two determinations ... (1) whether or not the defendant has been seized; and (2) whether or not there was probable cause for the seizure. State v. Acquin, 187 Conn. 647, 651, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983) . . . .” (Citation omitted.) State v. Damon, 214 Conn. 146, 152, 570 A.2d 700, cert. denied, 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 40 (1990). “In determining the threshold question of whether there has been a seizure, we examine the effect of the police conduct at the time of the alleged seizure, applying an objective standard. Under our state constitution, a person is seized only if in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. . . . Under the federal constitution, in contrast, a seizure occurs only if there is a show of physical force . . . or . . . submission to the assertion of authority.” (Citations omitted; internal quotation marks omitted.) State v. James, supra, 404-405.

“A person is not arrested or seized [however] ... if he freely chooses to enter into or continue an encounter with the police. . . . Police officers do not violate an individual’s constitutional rights by approaching him, by asking him if he is willing to answer some questions, by putting questions to him if he is willing to listen, or by offering into evidence in a criminal prosecution his voluntary answers to such questions. Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); State v. Brown, 199 Conn. 47, 52-53, 505 A.2d 1225 (1986). State v. Damon, supra, 214 Conn. 153-54. Among the factors that may be considered in determining whether a defendant’s encounter with police was consensual in nature are: the time, place and purpose of the encounter; the words used by the officer; his tone of voice and general demeanor in requesting the defendant to accompany him to the police station; the officer’s statements to others who were present during the encounter; the manner in which the defendant was escorted out of the house and transported to the sta-tionhouse; the officer’s response to any questions by the defendant . . . regarding the defendant’s right to refuse to go to the stationhouse; and the defendant’s verbal or non-verbal responses to any directions given to him by the officer.” (Citation omitted; internal quotation marks omitted.) State v. James, supra, 237 Conn. 405.

“A finding of fact will not be overturned on appeal unless it is clearly erroneous. State v. Pittman, 209 Conn. 596, 606, 553 A.2d 155 (1989); State v. Young, 191 Conn. 636, 652, 469 A.2d 1189 (1983) .... Where a constitutional issue turns upon a factual finding, however, this court has applied a stricter standard of review of the factual finding. The issue is factual, but our usual deference to the finding of the trial court on questions of this nature is qualified by the necessity for a scrupulous examination of the record to ascertain whether such a finding is supported by substantial evidence. Culombe v. Connecticut, 367 U.S. 568, 605, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961). State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982).” (Citation omitted; internal quotation marks omitted.) State v. Damon, supra, 214 Conn. 154.

After conducting a scrupulous review of the record, we conclude that there is sufficient evidence to support the court’s finding that the defendant was neither under arrest nor seized until after he voluntarily made the first oral confession to the police. The court, as fact finder, was confronted with two different versions of the events of what transpired at the defendant’s apartment on April 14, 1995. The court determined that the defendant’s version that he was forced to go to the police station and was thrown on the floor of the apartment and handcuffed, lacked credibility. The court, instead, found the version of the detectives more credible. The court concluded that prior to the point of confession the defendant was not in custody or under arrest, and that he was at liberty to leave the police station, to call an attorney or to return home.

On the basis of the version accepted by the court, which is supported by the evidence, a reasonable person in the defendant’s position would not have believed that he was in police custody. The defendant, therefore, was not unlawfully seized or arrested by the police at his apartment in violation of his constitutional rights.

B

The defendant next claims that the court improperly concluded that his oral confession, given on April 14, 1995, was voluntary. The defendant further maintains that his subsequent statements given to the police were products of his first unlawful statement and, therefore, should have been suppressed. On the basis of our review of the entire record, we agree with the court’s determination that the statements were voluntarily made.

“The use of an involuntary confession in a criminal trial is a denial of due process of law. Mincey v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); Jackson v. Denno, 378 U.S. 368, 376, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); Culombe v. Connecticut, [supra, 367 U.S. 602]; State v. Shifflett, 199 Conn. 718, 727, 508 A.2d 748 (1986).” State v. Schroff 206 Conn. 182, 195, 536 A.2d 952 (1988). “The state has the burden of proving the voluntariness of a confession by a fair preponderance of the evidence.” (Internal quotation marks omitted.) State v. Pinder, 250 Conn. 385, 418, 736 A.2d 857 (1999).

“Our Supreme Court has recently clarified the proper scope of appellate review of a trial court’s determination of voluntariness. See [id., 420]. To begin, we note the established rule that the [t]rial court’s findings as to the circumstances surrounding the defendant’s interrogation and confession are findings of fact. . . which will not be overturned unless they are clearly erroneous. ... In its review of state court determinations of vol-untariness, the United States Supreme Court long has concluded that the ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination. . . . Consistent with the well established approach taken by the United States Supreme Court, we review the voluntariness of a confession independently, based on our own scrupulous examination of the record. The ambiguity apparent in [prior Connecticut Supreme Court] cases is that, while correctly citing to the relevant federal case law for the proposition that we will conduct an independent determination of voluntariness . . . [our Supreme Court has also] continued to state in these same cases that [o]n the ultimate issue of voluntariness ... we will conduct an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence. . . . [Continued use of the substantial evidence language, when it is inconsistent with the plenary review that we in fact conduct, perpetuates a misstatement of the law. . . . [Therefore, [the proper scope of review regarding] the ultimate issue of voluntariness requires us, not to ascertain whether the trial court’s finding is supported by substantial evidence, but to conduct a plenary review of the record in order to make an independent determination of voluntariness. . . . Id., 420-21.” (Internal quotation marks omitted.) State v. Pin, 56 Conn. App. 549, 556-57, 745 A.2d 204, cert. denied, 252 Conn. 951, 748 A.2d 299 (2000).

“In order to be voluntary a confession must be the product of an essentially free and unconstrained choice by the maker. ... If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of the confession offends due process. . . . The determination of whether a confession is voluntary must be based on a consideration of the totality of circumstances surrounding it ... . Factors that may be taken into account . . . include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep.” (Citations omitted; internal quotation marks omitted.) State v. James, supra, 237 Conn. 410-11.

An application to the present case of the factors enunciated in James overwhelmingly substantiates the court’s finding that the confession was voluntary. First, the defendant was well over the age of eighteen at the time the statements were made and, as indicated by the court, he was a literate, intelligent and articulate man. Also, we find not a scintilla of evidence suggesting that the defendant was ever subjected to any kind of physical punishment or that his questioning was unduly prolonged. The evidence reveals instead that the defendant was not handcuffed or restrained during the questioning. In fact, while en route to the police station, the defendant sat unrestrained in the back of an unmarked police cruiser and, upon arriving at the station, was at liberty to walk around the office, having access to the bathroom and a telephone. We find no evidence that the defendant was coerced into making his confession.

The circumstances surrounding the defendant’s subsequent statements indicate that those statements were also made voluntarily. As to the statement made to Lawlor and Sherokow at the correctional institution, it was the defendant himself who initiated the call to Lawlor requesting to speak with him to amend his earner statement. Finally, as to the third statement given to the police, in the presence of his attorney, on May 25,1995, we find no evidence indicating that such statement was given involuntarily.

On the basis of our plenary review of the entire record, we conclude that the defendant’s initial confession and subsequent statements were made to the police voluntarily.

II

The defendant next claims that the court improperly admitted evidence of his prior convictions and denied his request that the count alleging criminal possession of a pistol or revolver be tried to the court. The defendant argues that the evidence should have been excluded because its prejudicial effect on the jury far outweighed any potential probative value. We disagree.

As a necessary element to establish criminal possession of a pistol or revolver pursuant to § 53a-217c, the state had to prove that the defendant was previously convicted of a felony. The state thus sought to admit evidence of the defendant’s prior felony convictions of larceny in the second degree and robbery in the first degree. The defendant, in response, requested that the court admit redacted copies of the certified records of the convictions to indicate that the defendant had been convicted of unnamed felonies or, in the alternative, that the sixth count of criminal possession of a firearm be tried to the court. The court agreed to admit the evidence of the convictions as unspecified felonies only if the defendant did not testily. The defendant, however, chose to testily and, thereafter, the court allowed the state to introduce evidence of the defendant’s prior convictions for larceny and robbery, and denied the defendant’s request that the sixth count be tried to the court. The court reasoned that the named convictions were admissible against the defendant for impeachment purposes.

It is well settled that “evidence that a criminal defendant has been convicted of crimes on a prior occasion is not generally admissible. State v. Geyer, 194 Conn. 1, 5, 480 A.2d 489 (1984); State v. Amaral, 179 Conn. 239, 244, 425 A.2d 1293 (1979); C. McCormick, Evidence (3d Ed.) § 43. There are, however, several well recognized exceptions to this rule, one of which is that [a] criminal defendant who has previously been convicted of a crime carrying a term of imprisonment of more than one year may be impeached by the state if his credibility is in issue. ... In its discretion a trial court may properly admit evidence of prior convictions provided that the prejudicial effect of such evidence does not far outweigh its probative value. . . . [Our Supreme Court] has identified three factors which determine whether a prior conviction may be admitted: (1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime in indicating untruthfulness; and (3) its remoteness in time. State v. Nardini, [187 Conn. 513, 522, 447 A.2d 396 (1982)]; State v. Harrell, [199 Conn. 255, 261, 506 A.2d 1041 (1986)]. A trial court’s decision denying a motion to exclude a witness’ prior record, offered to attack his credibility, will be upset only if the court abused its discretion. State v. Binet, 192 Conn. 618, 623, 473 A.2d 1200 (1984) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Crumpton, 202 Conn. 224, 228-29, 520 A.2d 226 (1987).

“[Our Supreme Court] has recognized that crimes involving larcenous intent imply a general disposition toward dishonesty or a tendency to make false statements. . . . [I]n common human experience acts of deceit, fraud, cheating, or stealing . . . are universally regarded as conduct which reflects on a man’s honesty and integrity .... [Furthermore] larceny, which is the underlying crime in any robbery, bears directly on the credibility of the witness-defendant.” (Citations omitted; internal quotation marks omitted.) Id., 229. Thus, in the present case, the defendant’s prior convictions of larceny and robbery were highly probative of his truthfulness and veracity.

With regard to the defendant’s claim that he was entitled to a trial to the court on the count alleging criminal possession of a pistol or revolver, the issue is resolved by our conclusion as to the admission of evidence of his prior convictions. Evidence of the prior felony convictions of the defendant-witness was admissible to impeach his credibility. No prejudice occurred in admitting evidence of the defendant’s prior convictions for the purpose of impeaching his credibility or in submitting to the jury the count of criminal possession of a pistol or revolver.

Accordingly, we conclude that the court did not abuse its discretion in admitting evidence of the defendant’s prior convictions and in submitting the count of criminal possession of a pistol or revolver to the jury.

Ill

The defendant claims that the court improperly allowed prosecutorial misconduct by the state in its closing argument, which deprived him of his rights to due process and to a fair trial in violation of the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. Specifically, the defendant claims that the prosecutor’s closing argument was improper because he (1) personally vouched for the credibility of the state’s witnesses, (2) insinuated that the defendant’s own lawyers believed that he was guilty and that his confessions were true and (3) argued facts not in evidence and misstated facts from hearings that occurred outside the jury’s presence. We disagree.

In his brief, the defendant acknowledges that his attorney did not object to the various comments made by the prosecutor in his closing argument. The defendant argues, however, that the prosecutor’s alleged misconduct is reviewable by this court under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id.

Although the record is adequate for review and the defendant asserts a violation of fundamental rights, the defendant’s claim fails to withstand scrutiny under the third Golding factor mandating a clear showing of the alleged constitutional violation and the deprivation of a fair trial. In considering the defendant’s claim of prosecutorial misconduct, “we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Internal quotation marks omitted.) State v. Clark, 48 Conn. App. 812, 827-28, 713 A.2d 834, cert. denied, 245 Conn. 921, 717 A.2d 238 (1998). Furthermore, “the record must reveal a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial. . . . State v. Williams, 231 Conn. 235, 246, 645 A.2d 999 (1994).” (Internal quotation marks omitted.) State v. Clark, supra, 828-29. “In determining whether a prosecutor’s conduct was so egregious as to deny a defendant a fair trial, we note that some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of the argument.” (Internal quotation marks omitted.) Id., 829-30.

Significantly, “[b]oth this court and our Supreme Court have held that where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal. State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985); State v. Malley, 167 Conn. 379, 387, 355 A.2d 292 (1974). Where counsel fails to object or to request a curative charge we have presumed that defense counsel did not view the remarks as so prejudicial that his Ghent’s right to a fair trial was seriously jeopardized. State v. Lubesky, supra [484]; State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983). State v. Tyler-Barcomb, [197 Conn. 666, 673, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986)]; State v. Chace, 199 Conn. 102, 108, 505 A.2d 712 (1986); State v. Bell, 13 Conn. App. 420, 426-27, 537 A.2d 496 (1988). . . . State v. Kelly, 23 Conn. App. 160, 170-71, 580 A.2d 520, cert. denied, 216 Conn. 831, 583 A.2d 130 (1990), cert. denied, 499 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991).” (Internal quotation marks omitted.) State v. Eason, 47 Conn. App. 117, 121, 703 A.2d 130 (1997), cert. denied, 243 Conn. 962, 705 A.2d 552 (1998).

After reviewing the record and transcripts of the trial court, we conclude that the statements of the prosecutor during closing argument of which the defendant complains do not rise to the level of blatant egregiousness. The comments regarding the credibility of the police officers were isolated comments made by the prosecutor in the heat of his closing argument. As such, the comments did not so infect the trial with a pattern of unfairness. Moreover, the prosecutor did not improperly insinuate that the defendant’s own lawyers believed that he was guilty. The comments were not egregious because they were made merely in an attempt to rebut the defendant’s claim that he and his attorney knew that his statements were not true. Finally, the prosecutor did not improperly assert facts not in evidence, but rather, appealed to the jury’s observations and experiences of everyday life. See State v. Rolli, 53 Conn. App. 269, 281, 729 A.2d 245, cert. denied, 249 Conn. 926, 733 A.2d 850 (1999). The prosecutor was simply appealing to the common sense of the jurors when he argued that it was unlikely that someone as intelligent as the defendant would be pressured into confessing to a crime that he did not commit. We conclude that the prosecutor’s statements during closing argument did not so infect the trial with unfairness as to deny the defendant his rights to a fair trial and to due process under either the federal or state constitutions and, accordingly, the defendant’s claim does not satisfy the third prong of Golding.

IV

Finally, the defendant claims that the court’s supplemental jury instruction regarding physical evidence that was referred to by the prosecution, but that was not admitted into evidence, was improper and, therefore, he was denied his right to a fair trial. We are not persuaded.

The following additional facts are necessary for the resolution of this issue. During deliberations, the jury sent the court a note asking if it should consider testimony relating to certain items that were taken from the home of the defendant’s mother pursuant to a warrant, namely, a “Taurus key ring,” “broken glass,” a “starter pistol,” “clothing” and “a bullet.” The jury was uncertain whether it could consider these items because they had not been included in the evidence that it had received. After a discussion with counsel, the court instructed the jury that it could not consider testimony or comments relating to the key ring, the clothing or the bullet, but that it could consider testimony as to the broken glass and the starter pistol if it determined, on the basis of reasonable inferences, that the items were relevant to the case.

The defendant claims that the portion of the instruction directing the jury to disregard the Taurus key ring, which depicted the astrological sign of the zodiac and not the Taurus car brand, was misleading to the jury. The defendant argues that the jury charge was not specific enough in instructing the jury to refrain from considering a relationship between the key ring and the Ford Taurus that had been carjacked.

The defendant concedes that at no time did he object to the court’s supplemental jury instruction. He seeks review of this unpreserved claim, however, under Golding. Although the record is adequate for review, we find that the defendant’s claim fails to satisfy the second prong of the Golding test because his claim of instructional impropriety is not of constitutional magnitude. “ ‘Just as every claim of evidentiary error by the trial court is not truly constitutional in nature; see, e.g., [State v. Golding, supra, 213 Conn. 241]; every claim of instructional error is not truly constitutional in nature. We have recognized, for example, that claimed instructional errors regarding the elements of an offense; see, e.g., State v. Boles, 223 Conn. 535, 543, 613 A.2d 770 (1992); and claimed instructional errors regarding the burden of proof or the presumption of innocence; see, e.g., State v. Adams, 225 Conn. 270, 289, 623 A.2d 42 (1993); are constitutional in nature, so as to satisfy the second Golding requirement. We have also recognized, however, that claimed instructional errors regarding general principles of credibility of witnesses are not constitutional in nature. State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991). Indeed, it would trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because of the label placed on it by a party or because of a strained connection between it and a fundamental constitutional right.’ State v. Walton, 227 Conn. 32, 64-65, 630 A.2d 990 (1993).” State v. Dash, 242 Conn. 143, 151-52, 698 A.2d 297 (1997). Furthermore, “the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved. State v. Periere, [186 Conn. 599, 611, 442 A.2d 1345 (1982)], quoting United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1222 (7th Cir. 1974). State v. Talton, 197 Conn. 280, 289-90, 497 A.2d 35 (1985).” (Internal quotation marks omitted.) State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988).

The defendant does not claim error regarding the burden of proof or the presumption of innocence, nor does he refute the court’s charge on the elements of the crime. The defendant, instead, requests review on an evidentiary matter. We decline to review the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty on the charges of larceny in the first degree, commission of a class B felony with a firearm and criminal possession of a pistol or revolver.

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

       In closing argument, the prosecutor stated: “[The defendant’s] attack is on the professional integrity of two police officers here, Sherokow and Lawlor. That gets also to the heart of the case, and I ask you, do you think that those men, which I represent, they are, are professionally trained dedicated law enforcement officers, and if you think that for two seconds they have any desire to violate anyone’s constitutional right, they’d be off that force in two seconds, and much less or much more so to me with two inspectors parade them in here, one after the other, to commit perjury. So I ask you, who do you want to believe in this case?”

       The defendant claims the following statements made by the prosecutor were improper: “[The defendant] tells you he told [John] Watson, his own lawyer, that all those signed statements were false and that Watson knew about it yet he . . . signed these in front of Watson, and they’re all untrue, do you believe that? Watson’s an attorney, public defender, and then Watson testified for [the defendant] and said he had no idea whatsoever about the falsity of those statements until the thirtieth of June or the first part of July .... I quote you verbatim from the evidence ... ‘In view of the fact that he wished to take the position that those statements were untrue, I felt I could no longer represent him at that time.’ That’s his own lawyer. . . . Inconsistency No. 4, told Watson all the statements were false. Watson tells you, T didn’t know a thing about that when they were signed until the thirtieth of June, five weeks later.’ . . . Very important these four statements. His own lawyer gets out of the case when he discovers what [the defendant’s] intentions were.”

       The prosecutor stated: “Now, along with signing that statement which was totally false, he told me under cross that he was not [an imbecile]. He was not retarded. . . . You tell me what healthy person, it is not some kind of retardation to be easily led down the garden path, is going to stand there and admit doing a serious crime. . . . [T]hat doesn’t happen. ... He was promised . . . stuff which police officers just don’t have any authority to make.” The defendant also claims as improper the prosecutor’s statements, “You can assume you can walk away, that’s taken for granted,” and, “[o]ut of fear of capital felony murder, I’ll restrain, but I’ve got to say it again, there is no such crime. . . . The fact that he used by those, it would never be used by a law enforcement officer.”

       In relevant part, the court’s supplemental instruction to the jury was as follows: “Let me say at the top of these remarks, that the fact that an item is not physically with you doesn’t necessarily detract from it. Every noun that is mentioned in any case is not necessarily made an exhibit. What that noun represents is made an exhibit in a case. The fact that it is not physically with you does not preclude you from using it as you see fit, consistent with my instructions, if you found that it is relevant, it is circumstantial, it is substantive and it is probative. So you can use anything in this case that was not struck by the court and that was presented before you as part of the overall evidentiary picture. ... I have secured the approval of both lawyers that the Taurus key ring and the clothing and bullet, two of the four items you listed, that there was no evidence substantively or probatively by which you could draw a reasonable inference from either the Taurus key ring and/or the clothing and bullet that are referenced in some of the testimony that came before you.”


author: ZARELLA, J.

text:
    HERMAN VOGEL v. MAIMONIDES ACADEMY OF WESTERN CONNECTICUT, INC.
    (AC 18908)
    Schaller, Mihalakos and Zarella, Js.
    Argued February 25
    officially released July 11, 2000

      Edward V. Walsh, for the appellant (plaintiff).

      Christine S. Synodi, for the appellee (defendant).
   Opinion

ZARELLA, J.

The plaintiff, Herman Vogel, appeals from the judgment of the trial court, rendered after the granting of the motion for summary judgment filed by the defendant, Maimonides Academy of Western Connecticut, Inc. On appeal, the plaintiff claims that the court improperly (1) granted the defendant’s motion for summary judgment and (2) denied the plaintiffs motion to reargue and for reconsideration of the decision to grant the motion for summary judgment. We affirm the judgment of the trial court.

The record discloses the following undisputed facts. In March, 1992, the plaintiff resided with his wife and two daughters in Newtown. At that time, his three and one-half year old daughter was enrolled in a school operated by the defendant. While enrolled in the defendant’s school, the plaintiffs daughter was taught a course titled “Family Life Educational Philosophy.” The purpose of the course was to help students to develop skills that would enable them to make sound value judgments and moral decisions regarding interpersonal relationships. Part of the curriculum was designed to teach the difference between proper and improper touching.

On March 27, 1992, while at the defendant’s school, the plaintiffs daughter vocalized words about “daddy” and “touching.” The personnel of the defendant school reported this statement to the department of children and families (department). The department investigated the plaintiff concerning the possible sexual abuse of his daughter.

The first count of the plaintiffs revised complaint alleges that the defendant’s false accusations placed him in a false light and subjected him to unjustified criticism. The plaintiff claims that as a result of the defendant’s actions, his reputation was damaged, his family life was disrupted and he required psychiatric counseling, incurred medical expenses and lost wages and employment opportunities.

The second count of the revised complaint incorporates many of the allegations of the first count and alleges that the defendant intentionally inflicted emotional distress on the plaintiff. In the third count of the revised complaint, the plaintiff alleges that the defendant acted recklessly in modifying the course and teaching it to children his daughter’s age and, as a result, the plaintiff sustained the injuries previously discussed.

The defendant filed its answer and a special defense dated June 26,1995. In its special defense, the defendant claimed immunity from liability for acts arising from the reporting of suspected child abuse pursuant to General Statutes (Rev. to 1991) § 17a-101 et seq.

The defendant filed its motion for summary judgment on July 7,1997, accompanied by a memorandum of law. The plaintiff objected, and filed an opposing memorandum and his affidavit. The key par agraphs of the affidavit state that the conduct of the defendant was reckless in modifying and teaching the program to a three and one-half year old. The affidavit basically reiterated the allegations in the revised complaint. The court, after hearing arguments, granted the motion. Thereafter, the plaintiff filed a motion to reargue and for reconsideration. The court denied the motion, and the plaintiff appealed.

I

The plaintiff claims first that the court improperly granted the defendant’s motion for summary judgment on the third count of his revised complaint. We disagree.

The standard of review for summary judgment is well established. “Practice Book § [17-49] mandates that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Fernandez v. Standard Fire Ins. Co., 44 Conn. App. 220, 222-23, 688 A.2d 349 (1997). Our review of the court’s judgment is de novo because this appeal raises a question of law. See Serrano v. Burns, 248 Conn. 419, 425, 727 A.2d 1276 (1999).

The plaintiff alleges in the third count of his revised complaint that the defendant recklessly brought about his injuries by improperly instructing his child. The plaintiffs claim for reckless instruction of an improper curriculum is essentially a claim for educational malpractice, a claim our Supreme Court declined to recognize in Gupta v. New Britain General Hospital, 239 Conn. 574, 687 A.2d 111 (1996). In Gupta, the court joined the vast majority of states that have rejected educational malpractice claims sounding in tort. The court noted in dictum that a claim for educational malpractice “raise[s] questions concerning the reasonableness of conduct by educational institutions in providing particular educational services to students—questions that must be answered by reference to principles of duty, standards of care, and reasonable conduct associated with the law of torts. Cencor, Inc. v. Tolman, 868 P.2d 396, 399 (Colo. 1994) (en banc). Because these tort principles are difficult, if not impossible, to apply in the academic environment, courts have almost universally held that claims of educational malpractice are not cognizable. Among other problems for adjudication, these claims involve the judiciary in the awkward tasks of defining what constitutes a reasonable educational program and of deciding whether that standard has been breached. See, e.g., Peter W. v. San Francisco Unified School District, 60 Cal. App. 3d 814, 825, 131 Cal. Rptr. 854 (1976) (finding no conceivable workability of a rule of care against which [teachers’] alleged conduct maybe measured). In entertaining such claims, moreover, courts are required not merely to make judgments as to the validity of broad educational policies . . . but, more importantly, to sit in review of the day-to-day implementation of these policies. Donohue v. Copiague Union Free School District, [47 N.Y.2d 440, 445, 391 N.E.2d 1352, 418 N.Y.S.2d 375 (1979)].” (Internal quotation marks omitted.) Gupta v. New Britain General Hospital, supra, 239 Conn. 590-91.

The Gupta court further stated that the “jurisprudential considerations that shed doubt on the viability of the tort of educational malpractice also inform our analysis of a contract claim based on inadequate educational services.” (Emphasis in original.) Id., 591. The court noted, however, that a cause of action for institutional breach of contract for educational services exists in at least two situations. Id., 592. “The first would be exemplified by a showing that the educational program failed in some fundamental respect, as by not offering any of the courses necessary to obtain certification in a particular field. See Wickstrom v. North Idaho College, 111 Idaho 450, 452, 725 P.2d 155 (1986); Ross v. Creighton University, [957 F.2d 410, 417 (7th Cir. 1992)]. The second would arise if the educational institution failed to fulfill a specific contractual promise distinct from any overall obligation to offer a reasonable program. See, e.g., Cencor, Inc. v. Tolman, supra, 868 P.2d 399; Paladino v. Adelphi University, [89 App. Div. 2d 85, 92, 454 N.Y.S.2d 868 (1982)].” Gupta v. New Britain General Hospital, supra, 239 Conn. 592-93. Our Supreme Court has recently had occasion to address this issue in detail. In Doe v. Yale University, 252 Conn. 641, 659, 748 A.2d 834 (2000), the court stated, “If the duty alleged to have been breached is the duty to educate effectively, the claim is not cognizable. Gupta v. New Britain General Hospital, supra, 239 Conn. 593-94. If the duty alleged to have been breached is the common-law duty not to cause physical injury by negligent conduct, such a claim is, of course, cognizable. That common-law duty does not disappear when the negligent conduct occurs in an educational setting. This principle underlies this court’s decision in [Kirchner v. Yale University, 150 Conn. 623, 192 A.2d 641 (1963)]. The duty of an educator or supervisor to use reasonable care so as not to cause physical injury to a trainee during the course of instruction or supervision is not novel.” The allegations of the plaintiffs complaint clearly allege a breach of a duty to educate effectively and, thus, the claim is not cognizable. We conclude, therefore, that under the facts of this case, the plaintiffs claim of educational malpractice properly did not survive the defendant’s motion for summary judgment.

II

The plaintiff contends finally that the court improperly denied his motion to reargue and for reconsideration of the court’s decision to grant the defendant’s motion for summary judgment. We disagree.

Our standard of review regarding challenges to a trial court’s ruling on a motion for reconsideration is abuse of discretion. See Biro v. Hill, 231 Conn. 462, 468, 650 A.2d 541 (1994) (analyzing denial of plaintiffs motion for reconsideration under abuse of discretion standard). Because we conclude that the motion for summary judgment properly was granted, the court did not abuse its discretion in denying the plaintiffs motion to reargue and for reconsideration.

The judgment is affirmed.

In this opinion the other judges concurred.

       Effective July 1, 1993, the department of children and youth services was succeeded by the department of children and families. See General Statutes § 17a-l (c). For ease of reference, we refer to the agency as the department throughout this opinion.

       The first count of the revised complaint states in relevant part:
      “7. On or after March 27,1992, an agent or agents of the defendant, directly or indirectly through other employees of defendant, without verification and without seeking further clarification of a statement made by [the defendant’s daughter], contacted the Connecticut Department of Children and Youth Services to report that the plaintiff inappropriately touched his daughter . . . and/or exposed [her] to inappropriate sexual behavior.
      “8. Due to the defendant’s false allegations concerning plaintiff’s behavior toward his daughter, the plaintiff was placed in a false light as to his history, character and beliefs in the public eye.
      “9. The false reporting and accusations characterizing the plaintiff as a sexually abusive parent were highly offensive to any reasonable person in that his moral turpitude [sic] was wrongly called into question and consequently damaged.”

       The second count of the revised complaint states in relevant part:
      “12. The plaintiffs emotional distress, which is causally related in this matter, has forced the plaintiff to expend moneys on psychiatric counseling and will cause him to expend future sums on psychiatric counseling.”

       The third count of the revised complaint states in relevant part:
      “8. The modification and teaching of the philosophy to 3 1/2 year olds . . . was a reckless and wanton act which was a substantial factor in bringing about plaintiffs iqjuries as stated in the First Count ....
      “9. The defendant had a duty to properly instruct plaintiffs child, taking into consideration the child’s young age; breached said duty by improperly instructing the child on ‘good touching’ and ‘bad touching’; recklessly destroyed the father’s reputation in the community; caused the plaintiff to expend time and money proving his innocence; and caused the plaintiff to seek psychiatric counseling for the severe distress he was placed under.”

       General Statutes (Rev. to 1991) § 17a-101 provides in relevant part: “(a) The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.
      “(b) Any . . . school teacher ... or any person paid for caring for children in a day care center . . . shall report or cause a report to be made in accordance with the provisions of subsection (c) of this section ....
      “(c) An oral report shall be made immediately by telephone or otherwise, to the state commissioner of children and youth services or his representative, or the local police department or the state police .... A local police department or the state police shall notify the commissioner of children and youth services or his designee within twenty-four hours of receiving an oral report alleging serious physical abuse or sexual abuse of a child. . . .”
      General Statutes (Rev. to 1991) § 17a-102 provides in relevant part: “Any of the persons, institutions or agencies described in subsection (b) of section 17a-101 having reasonable cause to suspect or believe that any child under the age of eighteen is in danger of being abused, but who does not have reasonable cause to suspect or believe any such abuse has actually occurred, shall immediately cause a written report to be made to the state commissioner of children and youth services .... Any such person, institution or agency which, in good faith, makes the report required by this section shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed and shall have the same immunity with respect to any judicial proceeding which results from such report.”
      This immunity provision now is found in § 17a-101e (b).

       The plaintiff briefed his first claim as challenging the court’s granting of the summary judgment motion as to all three counts of the revised complaint. After our review, however, we conclude that the issues raised by the plaintiff concerning the first two counts are wholly without merit.

       “In educational malpractice cases, a plaintiff sues Ms or her academic institution for tortiously failing to provide adequate educational services; see, e.g., Peter W. v. San Francisco Unified School District, 60 Cal. App. 3d 814, 131 Cal. Rptr. 854 (1976); or for tortiously failing to diagnose educational impediments. See, e.g., Hoffman v. Board of Education, 49 N.Y.2d 121, 400 N.E.2d 317, 424 N.Y.S.2d 376 (1979); see generally, D. Morgan, ‘Liability for Medical Education,’ 8 J. Legal Med. 305, 307-15 (1987).” (Emphasis in original.) Gupta v. New Britain General Hospital, supra, 239 Conn. 591 n.15.
      Although the plaintiff claims that his recklessness claim is not one for educational malpractice, we consider the plaintiffs claim that the defendant school tortiously taught Ms daughter improper curriculum given her age, to be a claim for educational malpractice.