author: WEST, J.

text:
    CHARLES W. FISH v. ANNE IGOE
    (AC 24008)
    Dranginis, West and McLachlan, Js.

      Argued February 25
    officially released June 15, 2004

      Charles W. Fish, pro se, the appellant (plaintiff).

      Maureen D. Regula, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Eliot D. Prescott, assistant attorney general, for the department of social services.
   Opinion

WEST, J.

The plaintiff, Charles W. Fish, appeals pro se from the judgment of the trial court affirming the family support magistrate’s denial of his motion to modify an order to pay child support. On appeal, the plaintiff claims that (1) the Superior Court did not have jurisdiction to modify a child support order originally rendered in Massachusetts, (2) the family support magistrate, Susan S. Reynolds, improperly retried issues that already had been decided by a Massachusetts court, (3) the trial court improperly failed to consider additional evidence pursuant to General Statutes § 46b-231 (n) (5) and (4) the trial court improperly affirmed the family support magistrate’s December 16, 2002 order denying his motion to modify the child support order and deviating from the presumptive amount of child support. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of the issues on appeal. The parties were divorced in Massachusetts on June 6,1996, and have joint legal custody of their two minor children. The defendant moved with the children to New York in 1994, and the plaintiff moved to Connecticut in 1996.

The issue of child support originally was decided by the Massachusetts Probate and Family Court on November 20, 1996, which ordered the plaintiff to pay the defendant $150 per week. The defendant presented the judgment to the Connecticut Superior Court on October 20,1997, and it was registered, over the plaintiffs objection, under the Uniform Interstate Family Support Act (UIFSA). The parties filed cross motions to modify the order. On January 30, 2001, Magistrate Reynolds modified upward the child support payments to $252.28 per week. The trial court, Shay, J., affirmed the magistrate’s order on March 19, 2001. The plaintiff did not appeal from the court’s judgment.

On October 7, 2002, the plaintiff filed his own motion to modify the child support order of $252.28 per week. On December 16, 2002, the family support magistrate, John P. McCarthy, denied the motion. On December 26, 2002, the plaintiff filed an application to present additional evidence on appeal to the trial court pursuant to § 46b-231 (n) (5). The trial court held a hearing on January 27, 2003, with regard to the plaintiffs motion for modification and application to present additional evidence. On February 20, 2003, the court denied the application to present additional evidence and affirmed the magistrate’s decision. The plaintiffs appeal from that judgment is now before this court.

I

The plaintiff first claims that the Superior Court lacked jurisdiction to modify a child support order originally rendered in Massachusetts. He challenges the jurisdiction of Magistrate Reynolds to modify upward the child support payments to $252.28 per week and the jurisdiction of the subsequent family support magistrate to deny his motion to modify on December 16, 2002. Specifically, he argues that written consent was required from both parties to give Connecticut jurisdiction to modify the child support order. We disagree.

We note the standard of review. “[B]ecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . [A] lack of subject matter jurisdiction can be raised at any time and cannot be waived by either party.” (Citation omitted; internal quotation marks omitted.) Bojila v. Shramko, 80 Conn. App. 508, 512, 836 A.2d 1207 (2003).

In this case, the child support order, originally rendered in Massachusetts, was registered in Connecticut under UIFSA. As a consequence, we look to General Statutes § 46b-213q (a), which governs the modification of a child support order from another state. Section 46b-213q (a) (1) and (2) set forth alternate ways to confer jurisdiction on a Connecticut family support magistrate to modify a child support order issued in another state. In this case, the three requirements of § 46b-213q (a) (1) were satisfied with respect to the January 30, 2001 modification. Pursuant to subdivision (2) of the statute, a dual filing of written consent is merely an alternate way to modify an out-of-state child support order. Consequently, we conclude that the family support magistrate had jurisdiction to modify the child support order on January 30, 2001.

Section 46b-213q (d) settles the plaintiffs other jurisdictional argument. Once the original order was modified in Connecticut on January 30, 2001, the family support magistrate had continuing, exclusive jurisdiction to decide the plaintiffs subsequent motion to modify the child support order on December 16, 2002. Accordingly, the plaintiffs subject matter jurisdiction claim fails.

II

The plaintiff next claims that the family support magistrate improperly retried issues that already had been decided by the Massachusetts court. Specifically, he argues that the doctrine of res judicata precluded Magistrate Reynolds from making findings of fact regarding his living expenses in conflict with those made previously by the Massachusetts court. We disagree.

Ironically, the doctrine of res judicata precludes our consideration of the plaintiffs res judicata claim. “The applicability of res judicata raises a question of law that is subject to our plenary review. . . . The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties ... in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. . . . If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made.” (Citation omitted; internal quotation marks omitted.) Rathblott v. Rathblott, 79 Conn. App. 812, 821, 832 A.2d 90 (2003).

We note at the outset that the plaintiff never appealed from the trial court’s March 19,2001 judgment affirming the family support magistrate’s January 30,2001 modification of the child support order. The plaintiff now asks this court, on appeal from the denial of his October 7, 2002 motion for modification, to consider an issue relating to the first modification hearing. The plaintiff, in effect, wants to use this appeal as an opportunity to relitigate an issue pertaining to a past proceeding. “The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.” (Internal quotation marks omitted.) Isaac v. Truck Service, Inc., 253 Conn. 416, 422-23, 752 A.2d 509 (2000). Accordingly, the plaintiff is precluded from asserting claims regarding Magistrate Reynolds’ January 30,2001 decision modifying the child support order or the trial court’s judgment affirming that decision on March 19, 2001.

Ill

The plaintiff next claims that the trial court improperly denied his December 26, 2002 application to present additional evidence that he was allegedly unable to introduce at the hearing before Magistrate McCarthy. Section 46b-231 (n) (5) allows an aggrieved party to present additional evidence to the trial court on appeal from a final decision of a family support magistrate. The plaintiffs brief provides scant analysis of that issue, but apparently he argues that if the family support magistrate had afforded him an adequate opportunity to prepare for an Unkelbach hearing, to determine whether he had received regularly recurring contributions or gifts from his current spouse, then he would have been able to present allegedly material evidence, most of which concerned financial circumstances surrounding the time of the original support order rendered in Massachusetts. We disagree.

We note the standard of review. “[A] trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. ... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling. . . . Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [plaintiff] of substantial prejudice or injustice.” (Internal quotation marks omitted.) Bugryn v. Bristol, 63 Conn. App. 98, 111, 774 A.2d 1042, cert. denied, 256 Conn. 927, 776 A.2d 1143, cert. denied, 534 U.S. 1019, 122 S. Ct. 544, 151 L. Ed. 2d 422 (2001).

“General Statutes § 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment.” Borkowski v. Borkowski, 228 Conn. 729, 734, 638 A.2d 1060 (1994). “A final order for child support may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances.” (Internal quotation marks omitted.) Prial v. Prial, 67 Conn. App. 7, 11, 787 A.2d 50 (2001).

“To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party’s relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order. In making such an inquiry, the trial court’s discretion is essential. The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided ... or to allow the parties to use a motion to modify as an appeal. . . . Rather, the trial court’s discretion includes only the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties.” (Citations omitted; emphasis added.) Borkowski v. Borkowski, supra, 228 Conn. 737-38.

The evidence the plaintiff sought to introduce to the trial court for consideration at the January 27, 2003 hearing was immaterial. Evidence of financial circumstances from the time of the original child support order rendered in Massachusetts simply had no bearing on the family support magistrate’s task on December 16, 2002. On October 7, 2002, the plaintiff filed a motion to modify the child support order as modified on January 30, 2001. It must be noted that the original child support order of $150 per week was subsequently replaced by the January 30, 2001 final order to increase the child support payments to $252.28 per week.

At the December 16, 2002 hearing on the plaintiffs motion for modification before Magistrate McCarthy, the only evidence within the scope of that motion pertained to the time period between January 30, 2001, the date on which the child support order was last modified, and December 16,2002. Magistrate McCarthy made that point clear to the plaintiff at the hearing: “And now tell me, sir, since January [30], 2001, what has happened to your earning capacity to your jobs, to your — you know, what has changed since then?” Accordingly, we conclude that the court acted well within its discretion by deciding not to consider the plaintiffs additional evidence under § 46b-231 (n) (5).

IV

The plaintiff next claims that the trial court improperly affirmed Magistrate McCarthy’s December 16, 2002 order denying his motion to modify the child support payments of $252.28 per week and deviating from the presumptive child support amount. Specifically, he argues that the family support magistrate improperly deviated from the presumptive amount of child support without meeting the requirements to do so as set forth in § 46b-215a-3 (a) of the Regulations of Connecticut State Agencies. He further argues that Magistrate McCarthy improperly considered the assets of the plaintiffs current wife in deviating from the presumptive amount. We disagree.

We note the standard of review. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Smith v. Smith, 249 Conn. 265, 282-83, 752 A.2d 1023 (1999).

“A final order for child support may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances.” (Internal quotation marks omitted.) Prial v. Prial, supra, 67 Conn. App. 11.

Section 46b-215a-3 (a) of the Regulations of Connecticut State Agencies provides in relevant part that “[t]he current support, health care coverage contribution, and child care contribution amounts calculated under section 46b-215a-2a of the Regulations of Connecticut State Agencies . . . are presumed to be the correct amounts to be ordered. ...” Section 46b-215a-3 (a) also provides, however, that “[t]he presumption regarding each such amount may be rebutted by a specific finding on the record that such amount would be inequitable or inappropriate in a particular case. Any such finding shall state the amount that would have been required under such sections and include a justification for the variance. . . .” Pursuant to § 46b-215a-l (11) (B) (iv), “the income and regularly recurring contributions or gifts of a spouse or domestic partner” are excluded from the calculation of “gross income” under the guidelines. Section 46b-215a-3 (b) (1) (D), however, permits a deviation from the presumptive child support amount for “the regularly recurring contributions or gifts of a spouse or domestic partner, but only if it is found that the parent has reduced his or her income or has experienced an extraordinary reduction of his or her living expenses as a direct result of such contributions or gifts.”

In his December 16, 2002 oral decision on the plaintiffs motion for modification, Magistrate McCarthy cited all of the requirements listed in § 46b-215a-3 (a) to justify deviating from the presumptive amount of child support. At the hearing, Magistrate McCarthy explained the guidelines to the plaintiff, noted the presumptive amount, and explained why applying that amount would be inequitable and inappropriate in this case. Magistrate McCarthy justified imposing a deviation on the basis of the extraordinary reduction in the plaintiffs living expenses as a result of the regularly recurring contributions and gifts the plaintiff had received from his current spouse.

There was ample evidence in the record to support the deviation from the presumptive amount of child support and the denial of the plaintiffs motion to modify downward the child support order. See footnote 10. Magistrate McCarthy properly ignored the income of the plaintiffs current spouse and whatever regularly recurring contributions and gifts she gave the plaintiff in determining the plaintiffs gross income. It was proper, however, to examine those regular contributions and gifts to decide whether a deviation from the presumptive amount of child support was necessary in this case.

We therefore conclude that the trial court acted well within its discretion by affirming the family support magistrate’s decisions to maintain the child support payments at $252.28 per week, to deviate from the presumptive child support amount and to deny the plaintiffs motion to modify the child support order.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note at the outset that the department of social servicesj which sought to enforce and modify the child support order on behalf of the defendant, filed an appellee’s brief. The defendant, Anne Igoe, did not file a brief.

       General Statutes § 46b-212 et seq.

       General Statutes § 46b-213q (a) provides in relevant part: “After a child support order issued in another state has been registered in this state, a family support magistrate may modify that order only if . . . after notice and hearing, such magistrate finds that: (1) The foEowing conditions are met: (A) The chüd, the individual obügee and the obEgor do not reside in the issuing state; (B) a petitioner who is a nonresident of this state seeks modification; and (C) the respondent is subject to the personal jurisdiction of the Farmly Support Magistrate Division; or (2) ... aE of the parties who are individuals have filed written consents in the issuing tribunal for a famEy support magistrate to modify the support order and assume continuing exclusive jurisdiction over the order . . . (Emphasis added.)

       General Statutes § 46b-213q (d) provides: “On issuance of an order modifying a child support order issued in another state, the Family Support Magistrate Division becomes the tribunal of continuing exclusive jurisdiction.”

       General Statutes § 46b-231 (n) (5) provides: “If, before the date set for hearing, application is made to the Superior Court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the family support magistrate, the Superior Court may permit additional evidence [to] be taken before it upon conditions determined by the court.”

       See Unkelbach v. McNary, 244 Conn. 350, 365, 710 A.2d 717 (1998), in which our Supreme Court held that “gross income,” as defined by the child support and arrearage guidelines, and set forth at § 46b-215a-l (11) of the Regulations of Connecticut State Agencies, included the contributions and gifts of the defendant’s domestic partner toward his living expenses. It is important to note that subsequent to the Supreme Court’s ruling in Unkelbach, (he guidelines were revised in November, 1999, to exclude the “regularly recurring contributions or gifts of a spouse or domestic partner” as part of the definition of “gross income.” The criteria for deviation from the guidelines was also expanded in November, 1999, however, to include “the regularly recurring contributions or gifts of a spouse or domestic partner” under § 46b-215a-3 (b) (1) (D). After the November, 1999 revisions to the guidelines, therefore, an “Unkelbach hearing” has been limited to an examination of the regular contributions and gifts of a spouse or domestic partner to determine whether a deviation from (he presumptive amount of child support is proper, as the family support magistrate did in this case. As Magistrate McCarthy recognized in his December 16, 2002 oral decision: “What the commission did — there’s a commission that meets. There are various members, and they make these guidelines. They decided that Unkelbach would only be a deviation criteria. They didn’t want to make it the law.”

       The plaintiff sought to present the following additional evidence to the court: (1) his affidavit from the time of the original support order; (2) the defendant’s affidavit from (he same time; (3) a transcript from Magistrate Reynolds’ “fictitious income statement”; (4) the Massachusetts support order; (5) his most recent pay stub from the town of Darien; (6) an accounting of paid child support; (7) Massachusetts child support guidelines; (8) a New York order for counseling; (9) an “orthodontia” bill; and (10) “[previous extraordinary” out-of-pocket expenses.

       General Statutes § 46b-86 (a) provides in relevant part: “[A]ny final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . . .”

       The department of social services, which filed an appellee’s brief in this appeal; see footnote 1; argues that res judicata precludes the parties from relitigating Magistrate Reynolds’ January 30, 2001 decision to deviate from the presumptive child support amount and modify upward the child support order. Magistrate McCarthy’s December 16, 2002 oral decision denying the plaintiffs motion to modify, however, represents an independent decision to deviate from the presumptive amount in a separate proceeding:
      “The Court: You know, you’re driving a 2001 automobile, you have the benefit of living in a $2 million house; could be $900,000, perhaps it could be $2 million. You pay virtually no real estate taxes, no utilities, and you listed food, gas [and] no repairs because you have a fairly new automobile. And, so, based on that, I’m going to deviate and make it — I think it’s reasonable to leave it at the $252.28, and that’s what I’m going to do.”

       The transcript indicates that the following discussion occurred between the plaintiff and the family support magistrate at the December 16, 2002 hearing, as Magistrate McCarthy explained why he deviated from the presumptive amount of child support:
      “The Court: In your case, you live without paying very much of a mortgage or a real estate tax. You pay, you told me, a total of $500 a month, whereas people in your like circumstances would pay a lot more. Why? Because of what the law calls regularly recurring gifts of your spouse.
      “[The Plaintiff]: Um-hmm.
      “The Court: You have no note or no documentation to show me that you owe your wife $68,000, and your own financial affidavit shows me how little you pay. Not counting child support, you pay less than $300 a week in living expenses. Your mortgage, if it were cut in half, would be $1450 a month. I mean, I’m just saying that hypothetically.
      “[The Plaintiff]: Um-hmm.
      “The Court: Your taxes, if cut in half, would be $500 a month. So, I think, based on Unkelbach v. McNary, 244 Conn. 350, 710 A.2d 717 (1998), it’s fair to say that you have not met the requirements for a motion to modify. Your income presumptively is what you state it is. And it is as per the guidelines. Do you have those, madam?
      “[The Clerk]: Yes.
      “The Court: Now, this is another language or word of art, so to speak. The presumptive amount would be $156, based on your income and your ex-wife’s income. But I’m going to deviate because to do otherwise would be inequitable and inappropriate.
      “[The Plaintiff]: But what are the findings on record that it would be — • that the presumptive amount would be unfair and unequitable? Why would that be, based on my income and my—
      “The Court: Okay. I’m basing it on this. I’ll state it again: You are the recipient of regularly recurring gifts from your spouse.
      “[The Plaintiff]: But they don’t represent a financial resource to me. My understanding from the preamble in page v in the II section is that that gift has to represent a financial resource. In the Unkelbach case—
      “The Court: But they do, sir. They—
      “[The Plaintiff]: In the Unkelbach case—
      “The Court: They put you — let me just tell you what I said before, they put you in a superior position to people in your place in life or circumstance.”


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LAWRENCE R. SMITH
    (AC 23426)
    Foti, West and DiPentima, Js.
    Argued February 9
    officially released June 15, 2004

      James B. Streeto, assistant public defender, for the appellant (defendant).

      Prolog K. Das, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Lawrence R. Smith, appeals from the judgment of conviction, rendered after his guilty plea, of assault in the second degree in violation of General Statutes § 53a-60. On appeal, the defendant claims that (1) his rights to a jury trial and against self-incrimination were violated when the trial court failed to advise him that his guilty plea operated as a waiver of those rights, (2) his waiver of his right to counsel was inadequate, and, therefore involuntary, (3) the court failed to inform him of the nature of the charge to which he was pleading guilty and (4) the court improperly participated in plea negotiations. We reverse the judgment of the trial court.

The defendant was charged with assault in the second degree in violation of § 53a-60 and criminal mischief in the third degree in violation of General Statutes § 53a-117 for attacking a correction officer while incarcerated after having been convicted of an unrelated offense. On June 1, 1994, the defendant was arraigned, pleaded guilty to the charge of assault in the second degree and was sentenced to four years imprisonment, concurrent to another unrelated sentence he was serving. The state nolled the criminal mischief charge.

During the arraignment, the court asked the defendant if he wanted to plead guilty, receive a concurrent sentence and “get this over with” or if he wanted to keep coming back to court. The defendant expressed his desire to “get it over with.” The court offered the defendant a five year sentence concurrent to the sentence he was serving on the unrelated conviction and then queried, “Do you want to do that?” The defendant responded in the affirmative. The court then inquired whether the defendant wanted a public defender. The defendant said, “No.” The court asked whether he was sure, to which the defendant responded, “Positive.” The clerk then put the defendant to plea. The defendant pleaded guilty, and the prosecutor recited the factual predicate of the charge. The defendant claimed that the recited facts were not true. The court asked him whether he had gotten into a fight with the officer. Before the defendant responded, the court asked if he caused the injuries, and the defendant said, “I probably did.” The court then said, “Now, Lawrence, you understand [that] you could have had a lawyer, you could have gone to trial, witnesses could have been subpoenaed, subject to cross-examination, you could have testified, the state would have been required to prove the case beyond a reasonable doubt. And you’re waiving all of those privileges?” The defendant responded, “Yes, sir.” The court then recited the elements of the crime stating, “with intent to cause physical injury to another person and causes such injury to such person. Do you have any questions of the court, Lawrence?” The defendant then waived his right to a presentence investigation by affirmatively stating, “Waive it.” The court asked whether the defendant was “comfortable representing [himself] in this matter?” The defendant said, “Yes sir.” Finally, the court stated, “[Y]ou understand that I would allow you access to the public defender before I took this plea?” Again the defendant responded in the affirmative. The state then entered the nolle of the charge of criminal mischief.

A complicated procedural history precedes this appeal. On February 18, 1995, the court, without prejudice, denied the defendant’s motion to correct an illegal sentence and for appointment of counsel. On October 30,1995, the defendant filed a petition for writ of habeas corpus. He alleged that his guilty plea to the charge of assault in the second degree was not knowing, intelligent and voluntary. His four year sentence for the assault expired on June 1, 1998. On August 20, 1999, the commissioner of correction filed a motion to dismiss the defendant’s petition as moot. The habeas court denied the motion. The commissioner filed a new motion to dismiss the petition as moot. The motion was granted, and the petition was dismissed on March 3, 2000. On April 12, 2000, the defendant appealed to this court from the dismissal of his petition for the writ of habeas corpus. This court reversed the judgment of the habeas court and remanded the matter with direction to reinstate the petition and to conduct further proceedings, concluding that the expiration of a sentence would not render moot a petition for habeas corpus filed while the petitioner was still in custody. Smith v. Commissioner of Correction, 65 Conn. App. 172, 176, 782 A.2d 201 (2001). On June 26, 2002, the habeas court restored the defendant’s appellate rights. This appeal from the defendant’s 1994 assault conviction followed.

The defendant claims that his constitutional rights were violated by the court’s failure to advise him that his guilty plea operated as a waiver of his rights to a jury trial and against self-incrimination. Specifically, the defendant argues that without such information, his plea could not be knowing, intelligent and voluntary. The defendant concedes, as he must, that his claim was not raised at trial and, thus, was not preserved properly. The defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review the defendant’s claim, as the record is adequate for review, and the alleged violation is of constitutional magnitude because it involves his constitutional right to a jury trial. The defendant’s claim also satisfies the third prong of Golding because we conclude that it is clear from the record that a violation exists. Finally, the claim satisfies the fourth and final prong of Golding because the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.

We begin by setting forth the standard under which we will review the defendant’s claim. “The United States Supreme Court has held that for the acceptance of a guilty plea to comport with due process, the plea must be voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Boykin set forth three federal constitutional rights of which a defendant must be cognizant prior to entering a guilty plea: (1) the privilege against compulsory self-incrimination; (2) the right to trial by jury; and (3) the right to confront one’s own accusers. Id., 243. Since a guilty plea constitutes a waiver of these constitutional rights, a reviewing court cannot presume from a silent record that a defendant knowingly waived these three rights.” State v. Carter, 243 Conn. 392, 397, 703 A.2d 763 (1997).

The second right implicated by Boykin is the right to a jury trial. The defendant claims that the court improperly found that he had made an effective waiver of his right to a jury trial. He argues that his waiver was ineffective because the court only used the term trial without the modifier jury. Under the peculiar circumstances of this case, we agree with the defendant that his waiver was not valid.

The state relies on State v. Badgett, 200 Conn. 412, 419, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), for the proposition that a canvass that informs a defendant of his right to trial but fails to use the specific term “jury” can satisfy the requirements of Boykin. As a general matter, we agree and note that the court’s failure to use the term “jury trial” does not in and of itself render a plea involuntary. See id. In Badgett, our Supreme Court found that a canvass lacking the term “jury trial” was sufficient under the circumstances to apprise the defendant of his right to a jury trial. Id. In Badgett, however, the defendant’s prior experience with criminal proceedings, his representation by counsel and his election of a jury trial during his original plea of not guilty made it clear that he understood that he had a right to a jury trial. Id. That was not the case here. The defendant was arraigned, entered a plea and was sentenced on the same day. Furthermore, he was not represented by counsel, and at no point in the proceeding did he elect a jury trial or show any understanding that he had a right to one.

The state argues that the defendant’s prior experience in criminal proceedings was sufficient to show that he understood he had a right to a jury trial on the assault charge. In particular, the state argues that the defendant’s election of a jury trial on at least two previous occasions would be sufficient evidence from which this court could conclude that the defendant was apprised adequately of his right to a jury trial. Although appealing at first blush, that argument fails to persuade us. This court will not infer that a defendant understood his right to a jury trial simply because he has had one or more jury trials on different charges in the past. Moreover, in the defendant’s two prior juiy trials, he was represented by counsel, charged with different offenses and was not a sentenced prisoner. We conclude, therefore, that in this case, under these circumstances, the defendant’s waiver of his right to a jury trial was not knowing, intelligent and voluntary. The defendant has satisfied his burden under Golding, and the state has failed to show that the error was harmless beyond a reasonable doubt.

The judgment is reversed and the case is remanded with direction to allow the defendant to withdraw his guilty plea and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       Because of our determination that the defendant was not apprised properly of his right to a jury trial, we need not address his other three claims.

       We note that although we need not address the issue, the court’s canvass of the defendant was sufficient for the court to conclude properly that his waiver of counsel was knowing, voluntary and intelligent.

       The completion of a sentence, or other release from custody, does not render a defendant’s appeal moot because the defendant may be subject to collateral legal consequences as a result of the conviction. See Sibron v.
        New York, 392 U.S. 40, 53-55, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); see also Barlow v. Lopes, 201 Conn. 103, 112, 513 A.2d 132 (1986) (“[i]t is well established that since collateral legal disabilities are imposed as a matter of law because of a criminal conviction, a case will not be declared moot even where the sentence has been fully served”).

       The court rejects the claim as to the right against self-incrimination. The waiver was adequate under State v. Carter, 243 Conn. 392, 398, 703 A.2d 763 (1997).


author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. ANTHONY MARSHALL
    (AC 23708)
    Lavery, C. J., and Foti and Flynn, Js.
    Argued March 31
    officially released June 22, 2004

      Daniel J. Krisch, special public defender, with whom were Elizabeth M. Festa, legal intern, and, on the brief, Michael S. Taylor, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Joseph T. Corradino, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Anthony Marshall, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a, and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that the court improperly (1) denied his motion to suppress his written confession because the circumstances under which he gave the statement demonstrated that he did not knowingly, intelligently and voluntarily waive his constitutional right against self-incrimination, and (2) instructed the jury in a manner such that the instruction violated his constitutional right to a fair trial by an impartial jury when the court directed the jury to consider the state’s good faith basis for prosecuting him. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The defendant and the victim, Demetrius Brown, were involved in drug trafficking activity in Bridgeport in 1996. Both men sold drugs for the Q & A gang, which was headed by Aaron Harris and Quinne Powell. The defendant and Brown also knew each other socially.

On November 18, 1996, Brown was riding his bicycle on Bunnell Street in Bridgeport and talking with friends. He had been drinking for most of the day and was intoxicated by the evening. He was armed with a .357 revolver. While Brown was riding his bicycle, the defendant approached him, also on a bicycle, and shot Brown, striking the side of his face. The two had a heated exchange, in which the defendant shouted at Brown to “shut ... up you snitch.” The defendant then shot Brown two more times, in the lower back and the shoulder.

The defendant was brought to the Bridgeport police station on August 2, 2000, for questioning as part of a joint investigation by the Federal Bureau of Investigation (FBI) and the Bridgeport police department into drug trafficking in Bridgeport. At the time, the defendant was incarcerated on other charges. Detective Dwayne McBride of the Bridgeport police department served the defendant with an arrest warrant for attempt to commit murder and assault. The defendant was then taken to the Bridgeport office of the FBI for questioning. At 12:26 p.m., McBride, accompanied by special agent Patrick Ryan of the FBI, advised the defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), at the FBI office. The defendant then signed a waiver of rights form in the presence of McBride and Ryan.

After completing the waiver form, the defendant was questioned by McBride and his partner, Detective Santiago Llanos, and Ryan. The defendant was questioned about the assault on Brown, gang activity in Bridgeport and his involvement with the Q & A gang. The defendant neither requested an attorney nor asked that the questioning cease at any time during the interrogation. The defendant was also given something to eat and drink before being transported back to the Bridgeport police station.

At that point, McBride asked the defendant if he would like to make a written statement. Between 5:35 p.m. and 7:20 p.m., the defendant transcribed a seven page statement concerning the assault on Brown. In his statement, the defendant claimed that he had shot Brown in self-defense when he saw Brown reach for his revolver. The defendant, however, admitted that he was resentful toward Brown because of an altercation he had with Brown at a party. The defendant also stated that Harris was upset with Brown because Brown had cooperated with the police by detailing his involvement with drug trafficking, the Q & A gang and Harris in order to avoid an extensive prison sentence after being arrested on drug charges on November 15,1996. Consequently, Harris told the defendant to “get” Brown when he next encountered him. After Brown had served his sentence, he returned to his Bridgeport neighborhood. Brown was told by one of Harris’ associates that he was no longer welcome in the neighborhood because he had “snitched” to the police.

Prior to trial, on September 6, 2000, the defendant filed a motion to suppress his written statement, arguing that he did not intelligently, voluntarily and knowingly waive his right against self-incrimination. The court denied the motion. Subsequently, the defendant renewed his motion to suppress at trial, maintaining that the five hour period between the time he was arrested and the time he finally gave his written statement, as well as the changes in location, defeated his free will as to his waiver of his rights. A hearing on the defendant’s motion to suppress was held on May 7,2002.

In an oral decision, the court denied the defendant’s motion, stating that “the whole procedure was proper, and by a preponderance of the evidence I could certainly find that the statement was given voluntarily and intelligently, and [that] he had a clear ability to understand what he, in fact, was doing and what his rights were . . . .” The court noted that the defendant was given proper Miranda warnings and voluntarily signed the waiver form. The court stated that the defendant never requested an attorney or that the interrogation stop. Moreover, the court found that the defendant’s written statement suggested that he was sufficiently intelligent to comprehend what was occurring and to understand his rights.

After a jury trial, the defendant was convicted of attempt to commit murder and carrying a pistol without a permit and acquitted of assault in the first degree. The court sentenced the defendant to twenty years incarceration, execution suspended after twelve years, with five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to suppress the written statement he made to the authorities because the circumstances under which he gave the statement demonstrate that he did not knowingly, intelligently and voluntarily waive his constitutional right against self-incrimination. Specifically, the defendant maintains that the five hour time lapse between being advised of his Miranda rights and giving his statement, the change in location between the Bridgeport police station and the FBI office and the changes in the interrogating authority, when taken together, show that his waiver was not knowing, intelligent and voluntary.

We first set forth the standard of review and legal principles that guide our analysis. “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 . . . .” (Internal quotation marks omitted.) State v. Bjorklund, 79 Conn. App. 535, 548, 830 A.2d 1141 (2003), cert. denied, 268 Conn. 920, 846 A.2d 882 (2004).

“The issue of waiver 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.” (Internal quotation marks omitted.) State v. Jacques, 53 Conn. App. 507, 514, 733 A.2d 242 (1999). “Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant’s experience with the police and familiarity with the warnings ... his level of intelligence, including his IQ . . . his age ... his level of education ... his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication . . . his emotional state . . . and the existence of any mental disease, disorder or retardation.” (Internal quotation marks omitted.) State v. Wright, 76 Conn. App. 91, 100, 818 A.2d 824 (2003), cert. denied, 267 Conn. 911, 840 A.2d 1175 (2004).

“The state has the burden of proving by a preponderance of the evidence that the defendant knowingly and intelligently waived his Miranda rights .... [T]he state must demonstrate: (1) that the defendant understood his rights, and (2) that the defendant’s course of conduct indicated that he did, in fact, waive those rights.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Santiago, 245 Conn. 301, 320, 715 A.2d 1 (1998). “In considering the validity of this waiver, we look, as did the trial court, to the totality of the circumstances of the claimed waiver.” (Internal quotation marks omitted.) State v. Hafford, 252 Conn. 274, 296, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000).

In this case, the totality of the circumstances surrounding the defendant’s waiver of his Miranda rights indicates that he both understood his rights and waived them. The defendant signed each page of the waiver portion of the rights form in the presence of McBride and Ryan prior to giving a statement. McBride reviewed the form with the defendant to ensure that he could both read and comprehend the form. Ryan testified that the defendant did not appear to have any difficulty understanding the directions given to him. Both men testified that the defendant never requested counsel, never indicated that he did not want to speak with them and never asked for the interrogation to stop.

Moreover, Ryan testified that the defendant was incarcerated on an unrelated charge at the time he was arrested in connection with the assault on Brown. That would suggest that the defendant was familiar with the criminal justice system and the process of waiving his rights. See State v. Wright, supra, 76 Conn. App. 100. McBride and Ryan testified that they did not make any threatening statements to the defendant, nor did they suggest what information the defendant should include in his statement. McBride testified that neither he nor Ryan promised to speak to federal or state authorities on behalf of the defendant regarding his pending case or a possible sentence if he gave a statement.

The three factors emphasized by the defendant, even when considered together, do not demonstrate that his waiver was not voluntary, knowing and intelligent. The defendant cites several cases from other jurisdictions that discuss the effect on the validity of a waiver of a time lapse, changes in location and a change in the interrogating authority. He maintains that those cases support his argument that circumstances like those in this case can “engender confusion in the mind of a defendant as to the nature, duration and applicability of his Miranda rights.” We are not persuaded.

The defendant first maintains that the five hour time period between which he was advised of his Miranda rights and ultimately gave his written statement, in combination with the change in interrogating authority and location, “raise[s] serious doubts whether [his] waiver was knowing, intelligent and voluntary at the time he gave the written statement . . . .” (Emphasis in original.) The circumstances surrounding his waiver and subsequent statement do not support such a conclusion.

Connecticut courts have considered the effect of a lengthy interrogation on the voluntariness of a confession within the context of precustodial interrogations, a scenario distinct from the present case. Nevertheless, the courts in those cases have held that “[t]he mere fact that admissions are made by an accused after a long period of interrogation by a police officer does not necessarily mean those admissions are involuntary.” (Internal quotation marks omitted.) State v. Lapointe, 237 Conn. 694, 734, 678 A.2d 942 (approximately nine hours), cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996); see also State v. DeAngelis, 200 Conn. 224, 235, 511 A.2d 310 (1986) (ten and one-half hours); State v. Burge, 195 Conn. 232, 247, 487 A.2d 532 (1985) (four hours); State v. Wright, supra, 76 Conn. App. 107 (twelve hours).

Other jurisdictions, however, have had occasion to consider the circumstances surrounding the type of waiver at issue in this appeal. “The courts have generally rejected a per se rule as to when a suspect must be readvised of his rights after the passage of time or a change in questioners.” (Emphasis in original.) United States v. Andaverde, 64 F.3d 1305, 1312 (9th Cir. 1995), cert. denied, 516 U.S. 1164, 116 S. Ct. 1055, 134 L. Ed. 2d 199 (1996); see also Wyrick v. Fields, 459 U.S. 42, 49, 103 S. Ct. 394, 74 L. Ed. 2d 214 (1982) (reversing federal appeals court’s creation of per se rule that Miranda warnings must be repeated after suspect takes polygraph examination and stating that courts should consider totality of circumstances). Courts have held that the mere passage of time between when a defendant is advised of his Miranda rights and when he gives a statement does not necessarily render the confession involuntary, even if the defendant is not readvised of his rights prior to giving a statement. See, e.g., United States v. Banner, 356 F.3d 478, 480-81 (2d Cir. 2004) (five hours); United States v. Andaverde, supra, 1313 (one day); Martin v. Wainwright, 770 F.2d 918, 930-31 (11th Cir. 1985) (one week), cert. denied, 479 U.S. 909, 107 S. Ct. 307, 93 L. Ed. 2d 281 (1986); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.) (five hours), cert. denied, 471 U.S. 1067, 105 S. Ct. 2145, 85 L. Ed. 2d 502 (1985); United States ex rel. Henne v. Fike, 563 F.2d 809, 814 (7th Cir. 1977) (nine hours), cert. denied, 434 U.S. 1072, 98 S. Ct. 1257, 55 L. Ed. 2d 776 (1978); Biddy v. Diamond, 516 F.2d 118, 122 (5th Cir. 1975) (twelve days), cert. denied, 425 U.S. 950, 96 S. Ct. 1724, 48 L. Ed. 2d 194 (1976). “[TJhere is no requirement that an accused be continually reminded of his rights once he has intelligently waived them . . . .” (Citation omitted.) United States v. Anthony, 474 F.2d 770, 773 (5th Cir. 1973); see also Jarrell v. Balkcom, 735 F.2d 1242, 1254 (11th Cir. 1984), cert. denied, 471 U.S. 1103, 105 S. Ct. 2331, 85 L. Ed. 2d 848 (1985).

In this case, the five hour period between the time at which the defendant was advised of his Miranda rights and the time he began giving his statement does not necessarily lead to the conclusion that new warnings were required. The initial Miranda warnings given to the defendant were adequate, rendering new warnings unnecessary. McBride reviewed the defendant’s rights with him to ensure that he understood them and, subsequently, the defendant signed the waiver form, effectively waiving his rights. The defendant did not ask any questions regarding his constitutional rights during the course of the interview, nor did he seem to have any difficulty in understanding instructions. Moreover, the fact that the defendant was incarcerated at the time of his arrest suggests that he was familiar with the criminal justice system and the process of waiving one’s rights.

The defendant next argues that there was a change in the interrogating authority. The record clearly contradicts that assertion. McBride and Ryan testified that they, along with Llanos, questioned the defendant for the duration of the defendant’s interrogation. There was only a short period of time in which the defendant, at his request, spoke in private with McBride. Additionally, the defendant was advised of his rights by McBride and Ryan, and both men were present when the defendant waived his rights and later transcribed his statement. Additionally, even if there was a change in authority in this case, courts have held that this factor, even when combined with a time lapse and no readvisement of one’s rights, is insufficient to render a confession involuntary. See, e.g., United States v. Banner, supra, 356 F.3d 480-81; United States v. Baron, 94 F.3d 1312, 1320 (9th Cir.), cert. denied, 519 U.S. 1047, 117 S. Ct. 624, 136 L. Ed. 2d 546 (1996); United States v. Hopkins, 433 F.2d 1041, 1045 (5th Cir. 1970), cert. denied, 401 U.S. 1013, 91 S. Ct. 1252, 28 L. Ed. 2d 550 (1971); United States v. Smith, 679 F. Sup. 410, 412-13 (D. Del. 1988).

Last, the defendant cites the change in location between the Bridgeport police station and the Bridgeport office of the FBI in contending that his waiver was not voluntary. Courts, however, have held that a change in location, when considered within the totality of the circumstances, does not invalidate a voluntary waiver and ensuing confession. See, e.g., United States v. Baron, supra, 94 F.3d 1314-15, 1320; United States v. Smith, supra, 679 F. Sup. 412-13. In this case, the change in location does not lead to the conclusion that the defendant’s wavier was not voluntary at the time he gave his statement within the context of this case.

On the basis of the foregoing analysis, we conclude that, considering the totality of the circumstances, the defendant both understood his Miranda rights against self-incrimination and, subsequently, made a knowing and intelligent waiver of those rights.

II

The defendant next claims that that the court improperly instructed the jury in that the instruction violated his constitutional right to a fair trial by an impartial jury when the court directed the jury to consider the state’s good faith basis for prosecuting him. Specifically, the defendant argues that the court’s instruction bolstered the credibility of the state and the individual prosecutor, injected into the trial the element of the state’s good faith and diluted the presumption of innocence constitutionally guaranteed to criminal defendants. We disagree.

The defendant seeks review of his claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “We review the claim under Golding because the record is adequate for our review, and a claim that challenges the propriety of jury instructions on the law of reasonable doubt is of constitutional magnitude.” State v. Dubose, 75 Conn. App. 163, 168, 815 A.2d 213, cert. denied, 263 Conn. 909, 819 A.2d 841 (2003).

The standard of review for constitutional claims of improper jury instructions is well settled. “Where . . . the challenged jury instructions involve a constitutional right, the applicable standard of review is whether there is a reasonable possibility that the jury was misled in reaching its verdict. ... In evaluating the particular charges at issue, we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view [them] as improper.” (Internal quotation marks omitted.) State v. Ortiz, 79 Conn. App. 667, 674, 830 A.2d 802, cert. denied, 266 Conn. 933, 837 A.2d 806 (2003).

The court included in its charge the statement that “[t]he state does not desire a conviction of an innocent person or any person whose guilt upon the evidence is in the realm of reasonable doubt. The state has as much concern in having an innocent person acquitted as in having a guilty person punished . . . .” The defendant cites State v. Schiappa, 248 Conn. 132, 728 A.2d 466 (en banc), cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999), and State v. Wilson, 71 Conn. App. 110, 800 A.2d 653, cert. denied, 262 Conn. 905, 810 A.2d 272 (2002), in contending that the court’s instruction was improper because it weakened the constitutional presumption of innocence afforded to criminal defendants and impaired his right to a fair trial. We are not persuaded.

Both this court and our Supreme Court have been critical of the instruction at issue in this case and have counseled trial courts against its use. See State v. Schiappa, supra, 248 Conn. 175; State v. Wilson, supra, 71 Conn. App. 119. “Because the guilty as well as the innocent are entitled to the protections afforded by the presumption of innocence and the reasonable doubt standard, the challenged portion of the charge, when viewed in isolation, gives rise to a danger of juror misunderstanding. . . . Accordingly, in the exercise of our supervisoiy authority over the administration of justice, we direct our trial courts to refrain from the use of that language in the future.” State v. Schiappa, supra, 175. Nevertheless, our Supreme Court concluded that “the trial court’s charge, when viewed in its entirety, adequately apprised the jury that the defendant was entitled to a presumption of innocence unless and until the state proved her guilty beyond a reasonable doubt.” (Emphasis added.) Id., 173; see also State v. Watson, 251 Conn. 220, 228, 740 A.2d 832 (1999); State v. Wilson, supra, 119-20; State v. Allen, 28 Conn. App. 81, 84-85, 611 A.2d 886, cert. denied, 223 Conn. 920, 614 A.2d 826 (1992).

The court apprised the jury of the presumption of innocence and the state’s burden of establishing guilt beyond a reasonable doubt. The court repeatedly reminded the jury throughout its charge that the burden of proof applicable to criminal cases is guilt beyond a reasonable doubt. Additionally, the challenged portion of the charge was followed directly by an instruction that again emphasized the presumption of innocence to which a defendant is entitled.

On the basis of the foregoing analysis, we conclude that the court’s charge, when viewed in its entirety, adequately explained to the jury that the defendant was entitled to a presumption of innocence unless and until the state proved his guilt beyond a reasonable doubt and that the charge fairly presented the case to the juiy so that no injustice would result. Accordingly, the defendant’s claim must fail under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       Our Supreme Court considered the question of whether a criminal defendant must be readvised of his Miranda rights in State v. Burge, 195 Conn. 232, 247, 487 A.2d 532 (1985). This case is distinguishable from the present case in that the defendant in Burge was not in custody when he was advised of his Miranda rights on his arrival at the Darien police station between 4:15 p.m. and 4:30 p.m. Id., 246. The defendant’s status changed after he visited the scene of the crime with the police, and he was reread his rights in part when he returned to police headquarters before 7 p.m. Id., 246-47.

        On appeal, the defendant claimed that he was not advised of his Miranda rights, contending that “the Miranda warnings which he received in the late afternoon were inadequate to validate the confessions which he gave in the early evening . . . Id., 247. Our Supreme Court disagreed, holding that “the initial warnings performed their constitutionally mandated function even though they were issued prior to the time the defendant was in custody or had become a suspect.” Id., 249. The court took into account that the defendant was constantly in the company of the police, was questioned on the same subject matter by the same officers and confessed within four hours of being apprised of his Miranda rights. Id.

       In State v. Golding, supra, 213 Conn. 233, 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) 1he alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” Id., 239-40.

       The court stated in relevant part: “It is the sworn duty of the court and the jurors to safeguard the rights of persons charged with crimes by respecting the presumption of innocence [and] by making the state meet its burden of proof of guilt beyond a reasonable doubt. The law is made to protect society and persons whose . . . guilt has not been established beyond a reasonable doubt and not to protect those whose guilt has been established by a reasonable doubt. If the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that an accused is guilty of the crime or crimes charged, then it is the sworn duty of the jury to enforce the law and render such verdicts. Of course, if the state has not met its burden of proof as to any one or more of the charges in the information, then [it has] failed in [its] obligation and [its] burden . . . and you must find the defendant not guilty of any one or more of those charges.”


text:
    IN RE APPLICATION FOR PRO HAC VICE ADMISSION OF STEVEN F. REICH
    (AC 25195)
    Lavery, C. J., and DiPentima and McLachlan, Js.
    Argued April 22
    officially released June 22, 2004

      Nancy A. Fitzpatrick, with whom, on the brief, was Hugh F. Keefe, for the appellant (Peter Ellef).

      Cynthia S. Arato, pro hac vice, with whom were Mary Anne O’Neill, and, on the brief, Richard D. Tulisano, for the appellee (select committee of inquiry to recommend whether sufficient grounds exist for the House of Representatives to impeach Governor John G. Rowland pursuant to article ninth of the state constitution).
   Opinion

LAVERY, C. J.

Peter Ellef appeals from the trial court’s order granting the motion of attorney Richard D. Tulisano, chief of staff to the Connecticut House Democratic caucus, and attorney Mary Anne O’Neill, chief counsel to the Connecticut House Republican caucus, for pro hac vice admission of Steven F. Reich to serve as special counsel to the select committee of inquiry to recommend whether sufficient grounds exist for the House of Representatives to impeach Governor John G. Rowland pursuant to article ninth of the state constitution (select committee). The dispositive issue in this appeal is whether the appeal should be dismissed for lack of subject matter jurisdiction because Ellef was not a party to the underlying pro hac vice proceeding. We answer the question in the affirmative and, therefore, dismiss the appeal.

The record reveals the following undisputed facts. On January 26, 2004, the House of Representatives passed House Resolution No. 702, which created the select committee “to conduct a comprehensive investigation relating to misconduct by Governor John G. Rowland, and submit its findings and recommendations to the House of Representatives, including whether sufficient grounds exist for the House to exercise its power to impeach [the governor] pursuant to Article Ninth of the state constitution. . . .” The resolution authorized the select committee to “hire special counsel and such other personnel as may be necessary to carry out [its] responsibilities . . . .” See footnote 4.

On February 17, 2004, Tulisano and O’Neill filed a motion seeking immediate admission pro hac vice of Reich to serve as special counsel to the select committee. The court granted the motion on an interim basis, pending a hearing scheduled for February 20, 2004. On that date, Tulisano and O’Neill filed an amended motion for pro hac vice admission of Reich, which, after a hearing, the court granted. Ellef now appeals from that order.

Ellef claims that this court has subject matter jurisdiction over his appeal despite the fact that he was not a party to the underlying pro hac vice proceeding. The gravamen of his claim is that the circumstances in the present case warrant an exception to the principle enunciated in State v. Salmon, 250 Conn. 147, 152, 735 A.2d 333 (1999) (en banc), that “review by way of appeal pursuant to [General Statutes] § 52-263 is available only to parties to an underlying action.” We are not persuaded.

“A threshold inquiry of this court upon every appeal presented to it is the question of appellate jurisdiction. ... It is well established that the subject matter jurisdiction of the Appellate Court ... is governed by . . . § 52-263, which provides that an aggrieved party may appeal to the court having jurisdiction from the final judgment of the court.” (Citation omitted; emphasis in original; internal quotation marks omitted.) King v. Sultar, 253 Conn. 429, 434, 754 A.2d 782 (2000).

In State v. Salmon, supra, 250 Conn. 155, our Supreme Court considered whether a bonding agency, which was not a party to the underlying criminal action, could appeal pursuant to § 52-263, from the trial court’s order to forfeit its bond. The court concluded that the bonding agency, as a nonparty, had no such right to appeal. Id., 162. Following a lengthy discussion regarding the parameters of the “party” requirement of § 52-263, the court in Salmon concluded that the term party is limited to parties to the underlying action. The court went on to adopt “a bright-line test requiring the appellant, in order to establish a right of appellate review pursuant to § 52-263, to establish in the following sequence that: (1) it was a party to the underlying action; (2) it was aggrieved by the trial court decision; and (3) the appeal is from a final judgment.” Id., 162-63.

In the present case, Ellef concedes that he was not a party to the underlying pro hac vice proceeding. Moreover, we are not persuaded that the circumstances here warrant an exception to the “party” requirement of § 52-263. As a nonparty, Ellef might have filed a writ of error to seek review, but he has no right to appellate review under § 52-263.

Even if we were to assume that Ellef was a party, he would still have to establish that he was aggrieved in order to satisfy the requirements of Salmon. “The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision. . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Citations omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 539, 833 A.2d 883 (2003).

Ellef claims to be aggrieved because he has a “specific personal and legal interest in not being summoned to respond to subpoenas that are the result of [Reich’s] unauthorized practice of law.” He argues that he is aggrieved by the court’s order because the select committee served him with a subpoena pursuant to the advice of Reich, who is not authorized to practice law in Connecticut. His sole claim of aggrievement therefore rests on an act that, he argues, stemmed from the court’s order admitting Reich pro hac vice.

Ellef s argument is flawed in that he possessed no legally protected interest, special and unique to him, that was adversely affected by the court’s ruling. His claim of injury stems from having been served with the subpoena, but the ruling that he challenges is the court’s order permitting Reich to practice law in this state. Ellef s contention that Reich’s admission caused him to be served with the subpoena is purely speculative, because he may have been served with a subpoena by the select committee even if Reich were not granted pro hac vice status. Furthermore, any interest that he may have had in preventing Reich from engaging in the unauthorized practice of law was not a “specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole.” (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, supra, 266 Conn. 539. Accordingly, even if Ellef were a party to the pro hac vice proceeding, he was not aggrieved by the court’s ruling.

We conclude that pursuant to § 52-263 and State v. Salmon, supra, 250 Conn. 147, Ellef s appeal must be dismissed for lack of subject matter jurisdiction.

The appeal is dismissed.

In this opinion the other judges concurred.

       Ellef is a former cochief of staff to Governor John G. Rowland.

       Reich is an attorney with the New York law firm of Manatt, Phelps and Phillips, LLP.

       On March 29, 2004, this court, sua sponte, ordered the parties to address the following issues in their briefs: “(1) Should the appeal be dismissed for lack of subject matter jurisdiction because Ellef was not a party to the underlying proceeding seeking permission for Steven F. Reich to serve as special counsel to the Select Committee of Inquiry of the House of Representatives pursuant to House Resolution 702? See State v. Salmon, 250 Conn. 147, 162 [735 A.2d 333] (1999) [en banc];
      “(2) Should the appeal be dismissed for lack of subject matter jurisdiction because Ellef was not aggrieved by the trial court’s grant of permission for Steven F. Reich to serve as special counsel to the Select Committee of Inquiry of the House of Representatives pursuant to House Resolution 702? See State v. Salmon, [supra, 250 Conn. 162]; see also Hunt v. Guimond, 69 Conn. App. 711, 716 [796 A.2d 588] (2002).”
      The parties also addressed the following additional issues in their briefs: (1) Should the appeal be dismissed for lack of subject matter jurisdiction because General Statutes § 51-88 (d) renders the appeal moot and (2) did the trial court abuse its discretion in granting Reich pro hac vice admission because there were no pending court proceedings.

       “House Resolution 702
      “RESOLUTION APPOINTING A SELECT COMMITTEE OP INQUIRY TO RECOMMEND WHETHER SUFFICIENT GROUNDS EXIST FOR THE HOUSE OF REPRESENTATIVES TO IMPEACH GOVERNOR JOHN G. ROWLAND PURSUANT TO ARTICLE NINTH OF THE STATE CONSTITUTION.
      “Resolved by this House:
      “Section 1. That the Speaker of the House shall appoint a select committee of ten members of the House of Representatives, and name two co-chairpersons from among the ten members, one of whom shall be named by the Speaker upon the recommendation of the House Minority Leader, to conduct a comprehensive investigation relating to misconduct by Governor John G. Rowland, and submit its findings and recommendations to the House of Representatives, including whether sufficient grounds exist for the House to exercise its power to impeach Governor John G. Rowland pursuant to Article Ninth of the state constitution.
      “Sec. 2. That the Speaker shall refer to said select committee this resolution, with instructions to (a) organize, adopt rules and procedures, and hire special counsel and such other personnel as may be necessary to carry out the select committee’s responsibilities; (b) review and investigate the facts and circumstances relating to misconduct of Governor John G. Rowland; and (c) submit to the House of Representatives its findings and recommendations in the form of a final report, including, if it concludes such action is warranted, articles of impeachment describing the acts or omissions with which Governor John G. Rowland is charged.
      “Sec. 3. That the select committee shall have all the powers of any committee of the General Assembly under section 2-46 of the general statutes, and may meet while either chamber of the General Assembly is in session.
      “Sec. 4. That the select committee shall continue in existence after the adjournment sine die of the January 26, 2004 Special Session of the General Assembly.
      “Sec. 5. That the select committee shall submit its final report to the House of Representatives no later than April 14, 2004, provided, however, the select committee may request from the Speaker at her discretion one-week extensions beyond April 14, 2004.”

       The amended motion was identical to the original motion, except that it included the following additional statement: “Consistent with the requirements of Rule 2-16 (2) of the Connecticut Superior Court Rules, either Mr. Tulisano or Ms. O’Neill, both of whom are members of the Connecticut Bar, will be present at all proceedings and will sign all pleadings, briefs and other papers and assume full responsibility for them and for the conduct of the cause and of Mr. Reich.”

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

       In so holding, the Supreme Court overruled certain of its precedents “[t]o the extent that those precedents imply that a person or legal entity that is not a party to the underlying action constitutes a party for purposes of appellate review pursuant to § 52-263 . . . .” State v. Salmon, supra, 250 Conn. 155. We note, however, that in King v. Sultar, supra, 253 Conn. 436, the Supreme Court stated that “Salmon did not overrule [its] long line of earlier cases in which [it] considered the appeals of would-be intervenors.” The court went on to conclude that the denial of a motion to intervene filed by a person with a colorable claim to intervention as a matter of right is a final judgment for purposes of appeal and that the proposed intervenor is a “party” for purposes of § 52-263. Id.
      In the present case, Ellef did not file a motion to intervene to become a party to the underlying pro hac vice proceeding, and, therefore, he cannot be considered a “would-be” intervenor. Accordingly, King v. Sultar, supra, 253 Conn. 429, is inapposite.

       Even if we were persuaded that an exception to the party requirement should be created in this instance, we could not do so because, as an intermediate appellate court,, we are bound to follow Salmon. See Novicki v. New Haven, 47 Conn. App. 734, 742, 709 A.2d 2 (1998).

       If Ellef had filed a writ of error, he would have been required to show that he was aggrieved by the court’s order. See Seymour v. Seymour, 262 Conn. 107, 110, 809 A.2d 1114 (2002). As we have explained, we conclude that Ellef was not aggrieved.

       We note that in light of our determination that Ellef is not entitled to appeal because he was not a party to the underlying pro hac vice proceeding, it is unnecessary to consider the other requirements of Salmon or the remaining issues raised in the appeal. See State v. Salmon, supra, 250 Conn. 163 n.15. We nevertheless briefly discuss the issue of aggrievement.

       We note that our examination of the record reveals that the subject subpoena is not part of the trial record. Moreover, the record contains nothing to substantiate the defendant’s contention that Reich advised the select committee with respect to the issuance of the subpoena “In deciding a case, this court cannot resort to matters extraneous to the formal record, to facts which have not been found and which are not admitted in the pleadings, or to documents or exhibits which are not part of the record.” State v. Evans, 9 Conn. App. 349, 354, 519 A.2d 73 (1986).


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. ALLAN NICHOLSON
    (AC 24062)
    Dranginis, West and Stoughton, Js.
    Argued April 2
    officially released June 22, 2004

      Anthony J. Musto, for the appellant (defendant).

      AnnemarieL. Braun, special deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva B. Lenczewski, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Allan Nicholson, appeals from the judgment of conviction of robbery in the third degree in violation of General Statutes § 53a-136, rendered on remand to the trial court as directed by our decision in State v. Nicholson, 71 Conn. App. 585, 803 A.2d 391, cert. denied, 261 Conn. 941, 808 A.2d 1134 (2002). On appeal, the defendant claims that the court should not have followed the remand order because it deprived him of his constitutional rights to a fair trial. We cannot agree.

We set forth a complete statement of the facts in State v. Nicholson, supra, 71 Conn. App. 587-89. The defendant originally appealed to this court from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and of being a persistent serious felony offender in violation of General Statutes (Rev. to 1999) § 53a-40 (b). State v. Nicholson, supra, 586. We reversed the judgment of conviction of robbery in the first degree, concluding that the evidence was insufficient on the element of the “use or threatened . . . use of a dangerous instrument,” specifically, a box cutter razor. (Internal quotation marks omitted.) Id., 592. We further concluded, however, that “the jury necessarily would have found the defendant guilty of the lesser charge of robbery in the third degree in violation of General Statutes § 53a-136, had it considered such charge. See State v. Aleksiewicz, 20 Conn. App. 643, 650-51, 569 A.2d 567 (1990).” State v. Nicholson, supra, 592. We therefore set aside the judgment and remanded the case to the trial court with direction to render a judgment of conviction of robbery in the third degree and to resentence the defendant accordingly as a persistent serious felony offender. Id., 600.

On appeal from the court’s resentencing in accordance with the directions of the remand order, the defendant claims that his constitutional rights were violated by the rendering of a judgment of conviction of robbery in the third degree under these circumstances. The defendant specifically argues, on the basis of our holding in his prior appeal, that the evidence was insufficient for the jury to conclude reasonably that he used, or threatened to use, a dangerous instrument in the course of the robbery and he argues that the introduction of the box cutter razor into evidence tainted his trial. As a consequence, the defendant claims that his conviction of robbery in the third degree on remand to the trial court was improper because the introduction of the box cutter into evidence deprived him of his constitutional rights to a fair trial. We cannot agree.

“In carrying out a mandate of [an appellate court], the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. ... It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. . . . The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein. . . . These principles apply to criminal as well as to civil proceedings.” (Citation omitted; internal quotation marks omitted.) State v. Lafferty, 191 Conn. 73, 76, 463 A.2d 238 (1983), on appeal after remand, 192 Conn. 571, 472 A.2d 1275 (1984).

The court was required to follow the precise directions of the remand order. As the court properly noted at the resentencing hearing in denying the defendant’s motion not to resentence: “This court has received a direct order or direction from the Appellate Court to resentence [the defendant]. This court feels that if there was any merit to the arguments concerning the degree of the sentencing and whether or not a second part of the information was properly tried with sufficient evidence [that] is an issue for the Appellate Court to either have considered or to consider at some future date. But it’s not for this court to use any discretion in regard to the directive I’ve received.”

In this appeal, our review is limited to the court’s implementation of the precise directions of our remand order as stated in State v. Nicholson, supra, 71 Conn. App. 600. The court properly followed that order. Accordingly, the defendant’s claim fails.

The judgment is affirmed.


author: SCHALLER, J.

text:
    JOHN TIMBERS v. UPDIKE, KELLY AND SPELLACY, P.C., ET AL.
    (AC 24364)
    Schaller, Bishop and Dupont, Js.
    Argued March 26
    officially released June 22, 2004

      John Timbers, pro se, the appellant (plaintiff).

      Joseph T. Sweeney, for the appellee (named defendant).

      David M. Sheridan, for the appellee (defendant Levy & Droney, P.C.).
   Opinion

SCHALLER, J.

On March 25, 2003, the pro se plaintiff, John Timbers, commenced an abuse of process action against the defendant law firms, Updike, Kelly & Spellacy, P.C., and Levy & Droney, P.C. Each defendant filed a motion for summary judgment on the ground that the plaintiffs cause of action was barred by the three year statute of limitations embodied in General Statutes § 52-577. On May 16, 2003, the trial court granted the defendants’ motions for summary judgment. On appeal, the plaintiff claims that the court improperly rendered summary judgment because his abuse of process claim was based on the same set of facts as his vexatious litigation claim that was timely filed in 1998 and, therefore, the abuse of process claim relates back to the vexatious litigation claim. We affirm the judgment of the trial court.

The following facts are pertinent to the plaintiffs appeal. In 1991, Taufiqul Chowdhury, represented by the defendants, filed, inter alia, an abuse of process cause of action against the plaintiff. The jury returned a verdict in that case in favor of the current plaintiff on May 4,1995 (1995 action). In May, 1998, the plaintiff brought a timely vexatious litigation action, on the basis of the 1995 action, against the defendants. On March 24, 2003, the plaintiff commenced the present abuse of process action by filing an original complaint that was based on the same 1995 action and named two of the same defendants as had been named in the 1998 action. On the return date, April 8, 2003, the defendants filed motions for summary judgment asserting that the plaintiffs present claim was time barred by § 52-577 because the plaintiff failed to file the action within three years of the defendants’ purported abuse of process. The court, in granting the defendants’ motions for summary judgment, ruled that the plaintiffs filing of his prior vexatious litigation action did not toll the running of the statute of limitations as to the abuse of process action. The court stated that “there is no material issue of fact concerning the concept of tolling, there is no factual dispute concerning the concept of tolling and there is no material issue of fact concerning the events that are alleged in the complaint having occurred prior to three years from the date of service, back from the date of service, March 24, 2003.” This appeal followed.

Our cases instruct us to conduct “plenary review over a trial court’s decision to grant a motion for summary judgment.” Krevis v. Bridgeport, 80 Conn. App. 432, 434, 835 A.2d 123 (2003), cert. denied, 267 Conn. 914, 841 A.2d 219 (2004). “Pursuant to Practice Book § 17-49, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... A material fact is a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) Krevis v. Bridgeport, supra, 434-35.

The plaintiff asserts that his present abuse of process claim relates back to a timely vexatious litigation claim that he filed against the same defendants in 1998, thereby tolling the running of the three year statute of limitations as to his present action. Both defendants argue that because the plaintiffs current cause of action is new and different from his prior cause of action, it is time barred and, thus, does not relate back to his prior vexatious litigation action. Both arguments are misplaced because the relation back doctrine is inapplicable.

We have recognized that “[o]ur relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence . . . .” (Emphasis added; internal quotation marks omitted.) Alswanger v. Smego, 257 Conn. 58, 65, 776 A.2d 444 (2001). In the present case, the relation back doctrine is inapplicable because the plaintiff has not amended an original complaint with respect to his current claim, but has instead brought an original complaint approximately seven and one-half years after the defendants’ alleged conduct. See Navin v. Essex Savings Bank, 82 Conn. App. 255, 260 n.4, 843 A.2d 679 (2004) (relation back doctrine inapplicable because plaintiffs did not amend original complaint, but “instead attempted to relate the present complaint back to previous foreclosure and federal cases”).

“Where two distinct causes of action arise from the same wrong, each is controlled by the statute of limitations appropriate to it. . . . So long as the pendency of the prior action does not prevent enforcement of the remedy sought in the later action, the pendency of the first action will not toll the statute of limitations for the second action.” (Citations omitted; internal quotation marks omitted.) Perzanowski v. New Britain, 183 Conn. 504, 506, 440 A.2d 763 (1981). Because abuse of process is a tort and § 52-577 provides that “[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of,” the plaintiffs present claim is time barred. On the basis of the foregoing, we conclude that there was no issue of material fact as to the tolling of the statute of limitations governing the plaintiffs claim and that the court properly granted the defendants’ motions for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-577 provides: “Action founded upon a tort. No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       The court stated in relevant part that “[t]his court is aware of information by reason of its trying of the prior case that in fact the jury verdict, although entered on May 4, 1995, was not reduced to a ... judgment until August of 1995, and that, from a factual point of view, is the absolute outside date for any specific actions taken by the defendants as against the plaintiff that would result in abuse of process.”


text:
    STATE OF CONNECTICUT v. RAYMOND F. WARREN
    (AC 24170)
    Laveiy, C. J., and West and DiPentima, Js.
    Argued April 20
    officially released June 22, 2004

      Sebastian O. DeSantis, special public defender, for the appellant (defendant).

      AnnemarieL. Braun, special deputy assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Stephen M. Carney, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Raymond F. Warren, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1). On appeal, the defendant claims that the trial court improperly admitted the testimony of a Norwich police officer under the constancy of accusation doctrine, beyond the parameters set forth in State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (enbanc). We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On May 2,2001, the time of the charged offenses, the victim had been living with her mother and the defendant for one week. The defendant and the victim’s mother had been living together at the residence for five years and were engaged to be married.

On the afternoon of May 2,2001, the victim was doing yard work at the residence while the defendant was sitting on a nearby sofa. The defendant rose from the couch, walked toward the basement and said to the victim, “Skinny, why don’t you come downstairs so I can show you a place to cool off in case you need to.” The victim followed the defendant to the basement. The defendant increased the volume on the stereo and pointed to a bench. He told the victim that “[t]his is where you can go to cool off’ and offered her his hand. The victim responded “no” and backed away from the defendant. The defendant then grabbed the victim’s arm and lunged toward her, pinning one of her arms behind her back and pulling her toward him. The victim struggled, but could not escape his grip.

The defendant asked the victim if she was afraid of him, to which she responded that she felt “uncomfortable” and told him to “[1]et me go before I scream.” The defendant then attempted to kiss the victim. He grabbed her buttocks and continued to try to kiss her on her lips and neck. The victim continued to struggle, avoiding eye contact with the defendant because she was afraid. The defendant said to the victim, “I’ve been waiting for this for three years,” and grabbed her bathing suit in the area of her vagina.

At that point, the victim struck the defendant in the knee with her right knee. As the defendant stumbled backward, she was able to escape the defendant’s grasp when he loosened his grip on her arm. She began screaming and ran upstairs from the basement to the front of the residence. The victim told a neighbor about the assault within minutes of the incident. Shortly thereafter, the victim also told her mother and her own boyfriend the details of the assault. The victim made a statement to the police that afternoon.

The defendant was charged with sexual assault in the third degree in violation of § 53a-72a (a) (1) and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). After a jury trial, the defendant was convicted of sexual assault in the third degree and acquitted of unlawful restraint in the first degree. The court sentenced him to five years incarceration, execution suspended after four and one-half years, and fifteen years probation. This appeal followed.

The defendant’s sole claim on appeal is that the court improperly allowed James Curtis, an officer in the Norwich police department, to testify regarding the details of the assault pursuant to the constancy of accusation exception to the hearsay rule. The defendant contends that he was deprived of a fair trial because Curtis’ testimony went beyond the parameters of the exception as provided by State v. Troupe, supra, 237 Conn. 304-305. The defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because trial counsel failed to preserve the claim properly by timely objecting to Curtis’ testimony.

The state argues that claims relating to constancy of accusation testimony are evidentiary in nature and, thus, do not implicate a defendant’s constitutional rights, an essential element under Golding. The state points out that counsel must object to the admission of evidence properly to preserve a claim challenging the admission of such evidence on appeal. We agree with the state and, accordingly, decline to review the defendant’s claim.

It is well settled that unpreserved evidentiary claims will not be reviewed under Golding. See State v. Morales, 78 Conn. App. 25, 47, 826 A.2d 217, cert. denied, 266 Conn. 901, 832 A.2d 67 (2003); see also State v. Francis D., 75 Conn. App. 1, 11, 815 A.2d 191, cert. denied, 263 Conn. 909, 819 A.2d 842 (2003).

We agree with the state that issues regarding constancy of evidence are evidentiary in nature and, as a result, are not entitled to Golding review. See State v. Spiegelmann, 81 Conn. App. 441, 451, 840 A.2d 69, cert. denied, 268 Conn. 921, 846 A.2d 882 (2004). Although the defendant in this case claims that Curtis’ testimony violated the defendant’s constitutional right to a fair trial, our Supreme Court has stated that “once identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed.” State v. Golding, supra, 213 Conn. 241; see also State v. Spiegelmann, supra, 451.

The defendant relies on State v. Samuels, 75 Conn. App. 671, 817 A.2d 719, cert. granted in part, 263 Conn. 923, 823 A.2d 1216 (2003), in contending that his claim is entitled to Golding review. The defendant’s reliance on Samuels is misplaced. Although we extended Golding review to the defendant’s constancy of accusation claim in Samuels, holding that the improper admission of the testimony of four constancy of accusation witnesses deprived the defendant of a fair trial, Samuels is distinguishable from the present case. Id., 689-90.

In Samuels, we specifically stated that “[although any one of the hearsay statements, alone, would not have substantially prejudiced the defendant’s right to a fair trial, the cumulative effect of the witnesses’ testimony, we believe, escalated the harm to a constitutional level.” (Emphasis added.) Id., 693. The defendant in this case does not claim that it was the cumulative effect of the state’s constancy of accusation witnesses that deprived him of a fair trial, but rather that the testimony of Curtis alone deprived him of that constitutional right.

Additionally, the defendant in Samuels timely objected to each of the state’s constancy of accusation witnesses. The defendant in this case did not preserve his claim at trial by objecting to Curtis’ testimony. His claim, therefore, necessarily fails to satisfy the second prong of Golding. See State v. Spiegelmann, supra, 81 Conn. App. 451; State v. Minor, 80 Conn. App. 87, 93, 832 A.2d 697, cert. denied, 267 Conn. 907, 840 A.2d 1172 (2003); State v. Francis D., supra, 75 Conn. App. 11. “Regardless of how the defendant has framed the issue, he cannot clothe an ordinary evidentiary issue in constitutional garb to obtain appellate review.” (Internal quotation marks omitted.) State v. Spiegelmann, supra, 453.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       Curtis testified in relevant part:
      “[The Prosecutor]: And did she say what happened next?
      “[The Witness]: She said there was really nothing to it and she proceeded to leave. As she was leaving, he told her to stop, which she did. She turned and noticed that at the time he had been on crutches due to a knee ipjuiy and now noticed he was only on one crutch and walking on his injured leg. He then grabbed her right arm and pulled her close to him.
      “[The Prosecutor]: And did she say what happened next?
      “[The Witness]: Yes. He pulled her body close to his, pinning her body, attempted to kiss her on the face and then lips. She turned away. She said no, she did not want to have any contact with him, attempted to fight him off. He held her body — he held her body to his and at one time reached up into her — under her shorts, placing his hand on the outside of her vaginal area on her swimsuit. . . .
      “[The Prosecutor]: And did she say what happened next?
      “ [The Witness]: A struggle ensued. She fought him off, pushed him [into]— I guess it would be an oil furnace tank or furnace itself, and was able to bréale free and exit the basement.
      “[The Prosecutor]: And did she say what happened then?
      “[The Witness]: After that, she met a neighbor in front of the residence and immediately told the neighbor what happened, but was unsure of what she wanted to do. She was afraid, embarrassed.
      “[The Prosecutor]: Okay. And ultimately did you take a statement from her?
      “[The Witness]: Yes, I did.
      “[The Prosecutor]: And did you ask her about whether she had been penetrated?
      “[The Witness]: Yes, I did. And she said no, she had not.
      “[The Prosecutor]: All right. When you asked her that, did you explain what penetrate means?
      “[The Witness]: Yes, absolutely.”

       In State v. Troupe, supra, 237 Conn. 287, our Supreme Court, while declining to abandon the exception, modified the constancy of accusation doctrine. The court concluded that “a person to whom a sexual assault victim has reported the assault may testily only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. . . . Thus, such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported. In determining whether to permit such testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant.” Id., 304-305.

         In State v. Golding, supra, 213 Conn. 233, 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. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) Id., 239-40.