author: BEACH, J.

text:
    ROSANNE LUCISANO v. RICHARD J. BISSON ET AL.
    (AC 32205)
    Beach, Robinson and Alvord, Js.

      Argued September 16
    officially released December 13, 2011

      James V. Sabatini, for the appellant (plaintiff).

      S. Peter Sachner, with whom, on the brief, was Jason T. Prueher, for the appellants (defendants).
   Opinion

BEACH, J.

The plaintiff, Rosarme Lucisano, appeals from the judgment of the trial court granting the motion filed by the defendants, Richard J. Bisson, Jeffrey J. Bisson and Cheshire Dental Associates, P.C., to dismiss her action alleging dental malpractice, failure to obtain informed consent to a surgical procedure and vicarious liability. On appeal, the plaintiff claims that the trial court erred by (1) determining that General Statutes § 52-190a requires that a similar health care provider’s opinion letter include the author’s credentials and qualifications and (2) dismissing her failure to obtain informed consent claim. We affirm the judgment of dismissal of the plaintiffs dental malpractice claims and their derivative vicarious liability claim, and reverse the dismissal of her claim alleging failure to obtain informed consent and its derivative vicarious liability claim.

In her complaint, the plaintiff alleged the following facts, the truth of which we assume for the purposes of her appeal. On or about January 24,2004, the Bissons, both dentists, began treating the plaintiff for tooth pain. They performed endodontic treatment on that tooth. The plaintiff, however, continued experiencing pain and developed an infection. The Bissons then performed an apicoectomy on a different tooth of the plaintiff, and on or about June 2, 2006, they extracted the tooth that was initially causing her pain. The plaintiff continued to experience pain.

On December 17,2007, the plaintiff brought an action against the defendants alleging four causes of action: negligence as to Richard Bisson, negligence as to Jeffrey Bisson, failure to obtain informed consent as to the Bissons, and vicarious liability as to Cheshire Dental Associates, P.C., the Bissons’ employer. The plaintiff alleged in the first and second counts of her complaint that the Bissons deviated from the requisite standard of care during her treatment and care, resulting in injury. In the third count, she further alleged that the Bissons failed to inform her of the significant risks associated with the apicoectomy, and, as a result of their failure, she suffered injuries and losses. Finally, in the fourth count, the plaintiff asserted vicarious liability against Cheshire Dental Associates, P.C., on the basis that the Bissons were its agents acting within the scope of their employment. Pursuant to § 52-190a, the plaintiff attached a certificate of good faith signed by her counsel verifying that there had been negligence in her care or treatment. The plaintiff also attached a three page opinion letter that concluded that the Bissons failed to satisfy the standard of care as to the endodontic treatment provided to the plaintiff. No credentials, authorship, or qualifications were included in the opinion letter.

The defendants filed a motion to dismiss on the ground that the plaintiff failed to satisfy § 52-190a, namely, that the opinion letter did not set forth the qualifications of the author, so that it was impossible to ascertain whether he or she was a “similar health care provider.” The plaintiff objected to the motion, arguing that such identification and qualifications were not required, that the good faith statement provides assurance that the letter was written by a similar health care provider and that the defendants should have filed a motion to strike rather than a motion to dismiss.

The court granted the defendants’ motion to dismiss. The court stated that a motion to dismiss is the proper procedural vehicle by which to challenge the opinion letter and that the author’s credentials and qualifications are required in order to provide a basis from which to determine whether the author was a similar health care provider. The plaintiff filed a motion to reargue and a motion for articulation requesting clarification as to whether the motion to dismiss applied to her informed consent claim. The court granted the motion for articulation and denied the motion to reargue. In its order granting the motion for articulation, the court clarified its reasoning for dismissing the third count, which alleged a lack of informed consent. After acknowledging a split among Superior Court decisions as to whether a lack of informed consent claim against a medical professional must be supported with an opinion letter pursuant to § 52-190a, the court concluded that, because two medical professionals were involved, expert testimony was necessary, and, therefore, the failure to comply with the statute was fatal to the plaintiffs claim. This appeal followed.

I

The plaintiff first argues that § 52-190a does not require that an opinion letter contain information showing that its author is a similar health care provider. She advances three grounds for her argument: (1) the text of the statute does not explicitly require the author to identify himself or herself as a similar health care provider; (2) the good faith certificate, written by the plaintiffs attorney, is sufficient to ensure that the author of the opinion letter is a similar health care provider; and (3) the statute does not invoke the court’s subject matter jurisdiction, so that dismissal is not appropriate. We disagree.

The standard of review of a court’s ruling on a motion to dismiss is well established. “When the facts relevant to an issue are not in dispute, this court’s task is limited to a determination of whether, on the basis of those facts, the trial court’s conclusions of law are legally and logically correct.” (Internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., 114 Conn. App. 244, 249, 969 A.2d 210 (2009). In the present case, there are no material facts in dispute, and thus we are presented with an issue of law. Statutory interpretation issues are questions of law over which our review is plenary. See State v. Gonzalez, 300 Conn. 490, 499, 15 A.3d 1049 (2011).

A

The plaintiff first asserts that the language of § 52-190a does not require that the opinion letter include the identity or qualifications of its author. When interpreting a statute, “[we] first . . . consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 650-51, 931 A.2d 142 (2007).

We begin our review with the language of the statute. Section 52-190a (a) provides in relevant part that in a civil action “in which it is alleged that . . . injury . . . resulted from the negligence of a health care provider . . . the attorney or party filing the action . . . [must make] a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. ... To show the existence of such good faith, the claimant or the claimant’s attorney . . . shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes] 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. . . .” Section 52-190a does not define “similar health care provider,” but the text explicitly refers to the definition in § 52-184c. We must, therefore, read § 52-190a together with § 52-184c, which defines “similar health care provider.” See Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 15, 12 A.3d 865 (2011) (“[g]iven the explicit cross-reference in the relevant statutes, we must read § 52-190a [a] in conjunction with § 52-184c, which clearly is a related statute”). Read in conjunction with one another, §§ 52-190a and 52-184c provide a plain and unambiguous definition of “similar health care provider.”

The plaintiff argues that the language of § 52-190a does not require the author of the opinion letter to identify that he or she is a similar health care provider or to provide any qualifications. We disagree. The only plausible application of the plain language of §§ 52-190a and 52-184c requires disclosure of qualifications in the opinion letter.

Our Supreme Court recently held that § 52-190a (a) requires a plaintiff to provide an opinion letter authored by a similar health care provider, as defined by § 52-184c, in medical malpractice cases against specialists. See id., 6. The court acknowledged that “similar health care provider” is a term of art. Id., 13-14. In the present case, the three page opinion letter lacks any mention of the author’s qualifications, or any indication that he or she is a similar health care provider. Without this information, the trial court was unable to determine whether the letter satisfied the statutory definition of a similar health care provider. The court relied, in part, on Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV-09-5006155-S (October 16, 2009), in which the trial court granted a motion to dismiss, in part, because the opinion letter lacked qualifying information about the author. The court in the present case quoted the Ribeiro court: “As submitted, the letter could have been authored by a medical school student or someone other than a physician employed in the medical field. There is simply no way to know, or even infer, from the text of the letter whether it was authored by a similar health care provider.”

The attached opinion letter in the present case does not provide adequate information that could be used to determine whether the author is a similar health care provider. Plaintiffs must include this information so that parties and courts are able to determine compliance with § 52-190a. It would be unworkable to hold, as the plaintiff urges, that § 52-190a does not require the inclusion of qualifying information of the author of the opinion letter. Because a common sense application of §§ 52-190a and 52-184c requires inclusion of qualifying information in the opinion letter, we agree with the trial court’s rationale.

B

In further support of her argument that she satisfied the requirements of § 52-190a, the plaintiff claims that the certificate of good faith, supplied by her attorney, satisfied not only the statutory requirement of the good faith certificate, but also the requirement that the author of the opinion letter be a similar health care provider. The plaintiff reasons that, because her attorney could not ethically have signed a good faith certificate unless the investigation was performed by a similar health care provider, the good faith certificate should be deemed to supply compliance with the statute’s requirement that a similar health care provider write the opinion letter. We disagree. Such an interpretation of the statute would dilute the requirement of an opinion letter and would require us to ignore the plain statutory language: “To show the existence of such good faith, the claimant or the claimant’s attorney . . . shall obtain a written and signed opinion of a similar health care provider . . . .” General Statutes § 52-190a (a). “It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions. . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous. . . . Because [e]very word and phrase [of a statute] is presumed to have meaning ... [a statute] must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant.” (Citations omitted; internal quotation marks omitted.) American Promotional Events, Inc. v. Blumenthal, 285 Conn. 192, 203, 937 A.2d 1184 (2008). As stated in part I A of this opinion, the language of § 52-190a, read in the context of § 52-184c, clearly and unambiguously requires that the qualifications of the opinion letter author be set forth.

C

The plaintiff further claims that § 52-190a does not invoke the court’s subject matter jurisdiction, thus supporting her argument that compliance with the statute does not require the author to supply his or her qualifications as a similar health care provider, and, in fact, this information may be supplied later in the course of discovery. We disagree. Our Supreme Court in Bennett concluded that dismissal in the context of § 52-190a is a statutory remedy rather than a matter of subject matter jurisdiction. See Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 26-30. The Bennett court addressed the potential harsh effects of dismissal based on insufficiencies in the opinion letter and held that cases in which opinion letters are insufficient are subject to dismissal without prejudice. Id., 30-31; see also Morgan v. Hartford Hospital, 301 Conn. 388, 403-404, 21 A.3d 451 (2011) (concluding that to provide early resolution of matter, defendants in § 52-190a actions must comply with requirement of Practice Book § § 10-32 and 10-30 to file motion to dismiss within thirty days of appearance).

Because we find the opinion letter in the present case insufficient and conclude that the good faith certificate alone does not satisfy the requirements of § 52-190a, we hold that dismissal of the dental malpractice claims and their derivative vicarious liability claim was proper. See General Statutes § 52-190a (c) (“the failure to obtain and file the written opinion required by subsection [a] of this section shall be grounds for dismissal of the action”); Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 25 (concluding that “§ 52-190a [c] requires the dismissal of medical malpractice complaints that are not supported by opinion letters authored by similar health care providers”).

II

The plaintiff next argues that § 52-190a does not apply to her failure to obtain informed consent claim because the claim does not sound in medical malpractice. We agree.

Our Supreme Court in Shortell v. Cavanagh, 300 Conn. 383, 15 A.3d 1042 (2011), recently analyzed whether a claim of informed consent was subject to the requirements of § 52-190a. In Shortell, the plaintiff alleged that he suffered injuries as a result of his dentist’s failure to obtain his informed consent to a dental procedure. Id., 384. The plaintiff did not attach a good faith certificate or written opinion letter from a similar health care provider pursuant to § 52-190a. Id., 384-85. Relying on its decision in Dias v. Grady, 292 Conn. 350, 972 A.2d 715 (2009), the court expressly held that § 52-190a does not apply to a claim of lack of informed consent because that claim is not a medical negligence claim. Shortell v. Cavanagh, supra, 385. In Dias v. Grady, supra, 359, the court had concluded that the phrase “medical negligence,” as used in § 52-190a, means “breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence.” The Shortell court noted that “[ujnlike a medical malpractice claim, a claim for lack of informed consent is determined by a lay standard of materiality, rather than an expert medical standard of care which guides the trier of fact in its determination.” Shortell v. Cavanagh, supra, 388; see also Logan v. Greenwich Hospital Assn., 191 Conn. 282, 293, 465 A.2d 294 (1983) (establishing lay standard in providing informed consent to patients). Despite recognizing that expert testimony is useful and perhaps required to prove some aspects of many informed consent cases, the court rejected the defendant’s argument that the lay standard of materiality does not remove informed consent cases from the applicability of § 52-190a. Shortell v. Cavanagh, supra, 392-93.

In the present case, the defendants argue that Shortell is distinguishable because, in the present case, there is more than one health care provider involved and, accordingly, expert testimony is necessary to establish which provider breached his duty to inform. We disagree. We first note the holding of Shortell. In that case, our Supreme Court held that § 52-190a does not apply to a claim of lack of informed consent because that claim is not a medical negligence claim. Id., 385. “Medical negligence,” in the context of § 52-190a, refers only to the breach of the applicable standard of care. See Dias v. Grady, supra, 292 Conn. 359. There is no language in Shortell limiting its holding to a certain category of informed consent claims, such as those that do not require expert testimony.

Although our Supreme Court in Shortell reasoned that expert testimony was not required to establish the core element of materiality, and thus the logic of inclusion in a § 52-190a letter thereby is less compelling, the requirement of a § 52-190a letter in informed consent claims does not vary according to whether expert testimony will be required as to any issue. Shortell v. Cavanagh, supra, 300 Conn. 392-93; see also Dias v. Grady, supra, 292 Conn. 359-60 (court concluded, without regard to whether expert testimony would be required, that opinion about causation in informed consent case not required in § 52-190a opinion letter). The court indeed observed that in informed consent cases, expert testimony is frequently used to establish the nature of the procedure, the risks and benefits, the alternatives, and the expected benefits. Shortell v. Cavanagh, supra, 392-93. It reasoned that “[t]he distinction to be drawn, however, is that the expert testimony elicited in these cases does not relate to the standard of care.” Id., 392. “To prove that a physician has breached the legally required standard of care, a plaintiff must offer some evidence that the conduct of the physician was negligent.” Edwards v. Tardif, 240 Conn. 610, 614, 692 A.2d 1266 (1997). In Dias v. Grady, supra, 359, the court found that the term medical negligence in § 52-190a referred to a breach of the standard of care, and in Shortell v. Cavanagh, supra, 385, the court determined that a claim of lack of informed consent is not a medical negligence claim. The plain language of § 52-190a (a) requires the plaintiff to obtain a written opinion of a similar health care provider that “there appears to be evidence of medical negligence . . . .” General Statutes § 52-190a (a). Although it may be argued in a vacuum that consultation with a patient about various alternatives, and obtaining meaningful consent to the course taken, are aspects of care broadly subject to a “standard of care,” the applicable case law imposes a more narrow application in this context. See Dias v. Grady, supra, 359.

The defendants also rely on Mason v. Walsh, 26 Conn. App. 225, 600 A.2d 326 (1991), cert. denied, 221 Conn. 909, 602 A.2d 9 (1992), to support their argument that the holding in Shortell does not end the inquiry in the present case. The court in Mason held that where a urologist and two anesthesiologists treated the plaintiff, the plaintiff should have presented expert testimony concerning which doctor owed a duty to disclose relevant facts for informed consent purposes. Id., 230. The defendants argue that the facts in Mason are analogous to the facts of this case and that in cases alleging lack of informed consent in which multiple health care providers are involved, expert testimony is required to establish the existence of the duty to inform. The holding in Mason, however, does not support the defendants’ claim. Mason simply determined that in the context of facts developed at that trial, expert testimony was required to inform the jury’s decision as to who had the duty to obtain informed consent. It is not necessarily true that in every case where two or more health care providers are involved, expert testimony will be required to sort out the duties; the facts of each case may determine whether the answer is obvious. More critically, the definition of “medical negligence,” as narrowly defined in our case law for the purpose of § 52-190a; see Dias v. Grady, supra, 292 Conn. 359; does not necessarily depend on the need for expert testimony on any issue.

Finally, we note the practical implications of our holding for members of the bar. It can often be difficult in an informed consent case to predict at the prediscovery stage whether expert testimony will be required as to some issues. There are practical advantages to bright line determinations. Accordingly, we conclude that the plaintiffs failure to obtain informed consent claim and its derivative vicarious liability claim should not have been dismissed for failing to comply with § 52-190a.

The judgment is reversed only as to the failure to obtain informed consent claim and its derivative vicarious liability claim and the case is remanded for further proceedings on those claims; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       “Endodontics” is defined as “[a] field of dentistry concerned with the biology and pathology of the dental pulp and periapical tissues, and with the prevention, diagnosis, and treatment of disease and injuries in these tissues.” Stedman’s Medical Dictionary (27th Ed. 2000) p. 592.

       “Apicoectomy” is defined as “[o]pening and exenteration of air cells in the apex of the petrous part of the temporal bone.” Stedman’s Medical Dictionary (27th Ed. 2000) p. 111.

       General Statutes § 52-184c provides in relevant part: “(b) If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a ‘similar health care provider’ is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.
      “(c) If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a ‘similar health care provider’ is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider’. . . .”

         The plaintiff cites several cases in support of her position that the language of § 52-190a does not require the author’s qualifying information. All of these cases, however, predate Bennett v. New Milford, Hospital, Inc.,
        supra, 300 Conn. 1. The court in Bennett analyzed the meaning of “similar health care provider” and how to ascertain whether the statutory definition is satisfied. Without any qualifying information of the author of the opinion letter, a court could not engage in this inquiry. Accordingly, we cannot conclude that the court’s reliance on Bennett in this case was misplaced.

       We note that § 52-190a (c), as well as our Supreme Court’s decision in Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 25, requires immediate dismissal of an action if the opinion letter is not by a similar health care provider. If qualifying information is needed at the time the complaint is served, then that information logically must appear in the opinion letter attached to the complaint.

       It is not necessary to review the legislative history of § 52-190a because we have determined that the meaning of the statute in conjunction with § 52-184c is plain and unambiguous. See Southern New England Telephone Co. v. Cashman, supra, 283 Conn. 650-51. It is, however, worth noting that the legislative history of § 52-190a does not support the plaintiffs argument. Our Supreme Court recounted the legislative history in Dias v. Grady, 292 Conn. 350, 357-58, 972 A.2d 715 (2009): “In 2005, the legislature amended § 52-190a (a) to include a provision requiring the plaintiff in a medical malpractice action to obtain the written opinion of a similar health care provider that there appears to be evidence of medical negligence and to attach the opinion to the certificate of good faith to be filed with the complaint. See Public Acts 2005, No. 05-275, § 2 (a) ... . The legislative history of this amendment indicates that it was intended to address the problem that some attorneys, either intentionally or innocently, were misrepresenting in the certificate of good faith the information that they had obtained from experts. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 18, 2005 Sess., p. 5553, testimony of Michael D. Neubert.” (Internal quotation marks omitted.) Accordingly, to find that the attorney’s good faith certificate satisfies the statute would frustrate one purpose of the amendment.

       The plaintiffs brief does not address Shortell because Shortell was decided on March 15, 2011, and her brief was filed on January 31, 2011. The case was, however, addressed at oral argument and by the defendants in their brief. We note also that the trial court did not have the benefit of Shortell.

        Dias v. Grady, supra, 292 Conn. 359, held that the issue of causation was not required to be addressed in a § 52-190a opinion letter.


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. SAID KENDRICK
    (AC 31896)
    Alvord, Bear and Pellegrino, Js.

      Argued September 8
    officially released December 13, 2011

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

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and David R. Applegate, assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Said Kendrick, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The dispositive issue on appeal is whether the trial court improperly denied the defendant’s motion to suppress certain evidence obtained by the police as a result of their warrantless entry into a bedroom where the defendant was found. Because we determine that the warrantless entry was not justified under the circumstances of this case, we reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of May 12,2008, New Jersey police contacted the Stamford police department, indicating that they were conducting a homicide investigation, and stating that they had reason to believe a suspect, Malik Singer, was in the area of 239 Knickerbocker Avenue in Stamford. The New Jersey police were led to focus on this particular area by a global positioning system (GPS) “ping” of a cellular telephone associated with their investigation.

The New Jersey authorities described Singer to the Stamford police as a light-skinned African-American male with tear drop tattoos on his face. The New Jersey police did not provide a photograph of Singer to the Stamford police prior to their arrival in Stamford. In the course of investigating the Knickerbocker Avenue neighborhood, Stamford police were approached by the landlord of 239 Knickerbocker Avenue, who stated that a black male matching Singer’s general description had been “keeping company” with a tenant residing in a third floor apartment of his building (apartment). Upon arrival of the New Jersey police in Connecticut, a team of Stamford and New Jersey officers approached and established a perimeter around 239 Knickerbocker Avenue. Although the New Jersey officers had a New Jersey arrest warrant for Singer, the police did not have a Connecticut arrest warrant for Singer or the defendant, nor did they have a search warrant for the apartment.

Between 11 p.m. and midnight, a number of New Jersey and Stamford police officers proceeded to the apartment, knocked on the door, and were met by a tenant, Blanca Valvo. Valvo permitted the officers to enter the apartment. After a period of questioning, Valvo informed the officers that two black males were present in a rear bedroom of the apartment, along with her daughter, Andrea. The New Jersey officers, weapons drawn, entered the bedroom, where they found Andrea Valvo lying in bed with the defendant. Another man, James Spurgeon, was lying on a mattress placed on the floor at the foot of the bed. The defendant reached for something near the bed, and the New Jersey officers, in response, secured the defendant and Spurgeon. After securing the defendant, a New Jersey officer searched the immediate area where the defendant had been reaching and discovered a backpack. The New Jersey officer then noticed what appeared to be — and, in fact, was — the handle of a revolver, sticking out from a pair of sneakers inside the backpack. The backpack was turned over to the Stamford police, and the defendant and Spurgeon were taken into custody. The defendant subsequently admitted to police that he had taken possession of the backpack and gun at Singer’s request and had transported the articles to Connecticut. During the search, neither Singer nor the cellular telephone were found in the apartment.

At trial, the parties stipulated that the defendant previously had been convicted of a felony. The jury found the defendant guilty of criminal possession of a firearm, the court rendered judgment of conviction in accordance with the jury’s verdict, and the defendant subsequently was sentenced to a two year mandatory term of imprisonment. This appeal followed. Additional facts and procedural history will be set forth as necessary.

On appeal, the defendant claims that the court improperly denied his motion to suppress certain evidence as the fruit of an unlawful search and seizure. Specifically, the defendant argues that the court erred in concluding that exigent circumstances justified the warrantless entry by police into the bedroom where he was sleeping. The defendant contends that the court’s finding of exigent circumstances was based on a chain of speculation that did not rise to the level of a particularized, imminent danger. Furthermore, the defendant argues that the police did not have a reasonable basis for concluding that Singer was in the apartment. We agree with the defendant.

The following additional facts and procedural history are relevant to our resolution of the defendant’s claim. Prior to trial, the defendant moved under the fourth, fifth, sixth and fourteenth amendments to the United States constitution and pursuant to article first, §§ 7 and 8, of the constitution of Connecticut to suppress certain evidence, including the handgun and statements made to the police, as fruit of an unlawful search and seizure. After a hearing, the court issued an oral ruling denying the defendant’s motion. In a subsequent written memorandum of decision in which it effectively adopted its oral ruling, the court found that exigent circumstances justified the warrantless entry by police into the bedroom.

Specifically, the court’s written memorandum provides in relevant part: “The court finds that there was no search warrant issued to search the apartment . . . nor was there an arrest warrant secured for the arrest of [the defendant] from any court in Connecticut. However, there was a homicide committed in New Jersey, and the alleged suspect, identified by witnesses as Malik Singer, fled the scene. No handgun was found at or near the scene, and a rational conclusion would be that Singer fled with the gun in his possession.

“The New Jersey police also uncovered a [cellular telephone], registered to the mother of Malik Singer, which a witness said was used by Singer. The [New] Jersey officials secured a subpoena to have the [cellular] telephone company ping the phone, [the result of] which indicated calls to the area of 239 Knickerbocker Avenue. They also were able to secure a warrant for the arrest of Singer within a day after the body of the shooting victim was found at [7 a.m.] on May 11.

“What . . . information the police had led to a conclusion that the shooter, Malik Singer, was a fugitive, that the fugitive was armed, that he was dangerous because he had committed a homicide. The [cellular telephone] ping indicated that the fugitive had connections with a residence in Stamford focusing on the third floor apartment at 239 Knickerbocker Avenue. That building had several small apartments in it and was located in a residential area of small homes close together. As [New Jersey] Detective David Whipple answered, in response to defense counsel’s question, it was close to midnight when all this information came together. This state has a doctrine that you do not enter a residence to search for a person or evidence without a search warrant and you do not make arrests for felonies unless committed in the presence of the officer or upon speedy information without an arrest warrant. The police had neither.

“But there certainly existed an exigent circumstance, which is recognized by our courts in the state of Connecticut and by courts in most of the United States. Here, there was reason to believe that the suspect who fled might be in the apartment at the third floor of 239 Knickerbocker Avenue, that he was armed and homicidal, that there were Blanca and [Andrea] Valvo in that apartment and that there were occupants in the other apartments in the building who could be injured if there was gunfire. To get a warrant at midnight would require time and to assemble and place the number of officers that might be needed to secure the safety of the residents in the apartment house and the neighborhood might alert the fugitive and result in his escape or in actual gunfire. Fortunately, the police were able to recover a gun, which Blanca Valvo did not know was in the bedroom and in the possession of the defendant, and in doing so, prevented him from using the weapon or from being shot.”

In addition, the following uncontroverted testimony was adduced at the suppression hearing. Whipple testified that “[w]e had reason to believe, during the course of my investigation that at one period of time, Mr. Singer had obtained a [cellular telephone], which was registered to an Ann Marie Pettigrew, which she may have been using during the crime I was investigating.” Whipple further testified that the police did not know that Pettigrew was connected with Singer at that time. Whipple, however, testified that he believed Singer was in possession of the telephone. Paul Guzda and Miriam Delgado of the Stamford police, along with Whipple and Lms Demeo of the Somerset County prosecutor’s office, also testified that, prior to police entry, the door to the bedroom was slightly ajar and that the bedroom lights were off. Guzda testified that the New Jersey police had an arrest warrant for Singer.

The scope of review when analyzing the application of the exigent circumstances doctrine is well established. “The trial court’s finding of facts will stand unless they are clearly erroneous. Its legal conclusion regarding the applicability of the doctrine, however, is subject to de novo review. State v. Blades, 225 Conn. 609, 617, 626 A.2d 273 (1993). The burden is on the state to establish the facts that justify the application of the exigent circumstances doctrine. See State v. Holmes, 51 Conn. App. 217, 220, 721 A.2d 1195 (1998) (‘[b]ecause a warrantless search is presumptively invalid, the state has the burden of affirmatively demonstrating a recognized exception to the warrant requirement’), cert. denied, 248 Conn. 904, 731 A.2d 309 (1999); see also State v. Badgett, 200 Conn. 412, 423-24, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).” State v. Aviles, 277 Conn. 281, 292, 891 A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166 L. Ed. 2d 69 (2006). Where, however, a trial court “rules on a motion to suppress without detailing the facts supporting its decision, an appellate court may look to the evidence produced in support of the ruling.” State v. Martin, 2 Conn. App. 605, 614, 482 A.2d 70 (1984) , cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985) ; see also State v. Leonard, 14 Conn. App. 134, 135, 539 A.2d 1030 (1988), aff'd, 210 Conn. 480, 556 A.2d 611 (1989); State v. Mitchell, 7 Conn. App. 46, 49, 507 A.2d 1017 (1986) (Appellate Court reviews entire record where trial court’s decision makes limited factual findings and legal conclusions), aff'd in part and rev’d in part on other grounds, 204 Conn. 187, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). “We undertake a more probing factual review when a constitutional question hangs in the balance.” State v. Burroughs, 288 Conn. 836, 843, 955 A.2d 43 (2008).

“It is a fundamental principle of search and seizure law that, in the absence of exigent circumstances and probable cause for arrest, a person’s house may not be entered without a warrant, and that warrantless searches and seizures inside a house are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Guertin, 190 Conn. 440, 446, 461 A.2d 963 (1983).” State v. Gant, 231 Conn. 43, 63, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995); see also State v. Mitchell, 56 Conn. App. 561, 564, 744 A.2d 927 (“[ajbsent exigent circumstances or consent, the police, even armed with an arrest warrant, cannot search for a subject in the home of a third party, without first obtaining a search warrant directing entry”), cert. denied, 253 Conn. 910, 754 A.2d 162 (2000). The principles underlying the presumptive unreasonableness of a warrantless entry into a home “apply with particular intensity when a home is searched in the middle of the night. See United States v. Ravich, 421 F.2d 1196, 1201 (2d Cir. 1970) (noting the ‘peculiar abrasiveness’ of nighttime searches (citing Jones v. United States, 357 U.S. 493 [78 S. Ct. 1253, 2 L. Ed. 2d 1514] (1958))); United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir. 2004) (‘[A] nighttime search is particularly intrusive’) [cert. denied, 543 U.S. 1175, 125 S. Ct. 1390, 161 L. Ed. 2d 159 (2005)]; United States v. Ramirez-Chilel, 289 F.3d 744, 751 n.8 (11th Cir. 2002) (same) [cert. denied, 537 U.S. 1114, 123 S. Ct. 850, 154 L. Ed. 2d 789 (2003)]; United States v. Jerez, 108 F.3d 684 (7th Cir. 1997) (‘[P]olice encounters at a person’s dwelling in the middle of the night are especially intrusive.’).” United States v. Simmons, United States Court of Appeals, Docket No. 10-1526-cr (2d Cir. October 26, 2011).

“The term, exigent circumstances, does not lend itself to a precise definition but generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization. . . . State v. Gant, [supra, 231 Conn. 63-64]. It is well established in Connecticut . . . that the test for the application of the doctrine is objective, not subjective, and looks to the totality of the circumstances. . . . Specifically, [t]he test of exigent circumstances for the making of an arrest for a felony without a warrant . . . is whether, under the totality of the circumstances, the police had reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others. This is an objective test; its preeminent criterion is what a reasonable, well-trained police officer would believe, not what the arresting officer actually did believe. . . . The reasonableness of a police officer’s determination that an emergency exists is evaluated on the basis of facts known at the time of entry. . . . State v. Aviles, [supra, 277 Conn. 293-94].” State v. Owen, 126 Conn. App. 358, 365-66, 10 A.3d 1100, cert. denied, 300 Conn. 921, 14 A.3d 1008 (2011).

After reviewing the record, we conclude that, under the totality of the circumstances existing at the time of entry into the bedroom, a reasonable, well-trained police officer would not have had reasonable grounds to believe that Singer was in the bedroom, or that the occupants of the bedroom would flee, destroy evidence, or, in the time necessary to procure a warrant, endanger the safety of others.

Generally, decisions concluding that application of the exigent circumstances doctrine justify a warrantless police entry into a private residence root their holdings, at least in part, on reasonably credible information that a particular suspect will be found on the premises being searched. Such a determination often is grounded in either a police or eyewitness identification of the suspect sought. See, e.g., id., 367 (police witnessed suspect fleeing into house); State v. Mills, 57 Conn. App. 202, 218, 748 A.2d 318 (police observed defendant in apartment through open window), cert. denied, 253 Conn. 914, 915, 754 A.2d 163 (2000); see also United States v. Snype, 441 F.3d 119, 133-34 (2d Cir.) (identifying reasonable belief that suspect is present as relevant factor supporting warrantless entry pursuant to exigency), cert. denied, 549 U.S. 923, 127 S. Ct. 285, 166 L. Ed. 2d 218 (2006); United States v. MacDonald, 916 F.2d 766, 769-70 (2d Cir. 1990) (en banc), cert. denied, 498 U.S. 1119, 111 S. Ct. 1071, 112 L. Ed. 2d 1177 (1991).

State v. Aviles, supra, 277 Conn. 281, provides a precedent factually similar to the present matter with which to frame our analysis. In Aviles, Waterbury police, in the course of investigating a recent homicide, received information from a wdtness that the suspected killer was “ ‘hiding out’ ” at a particular address. Id., 288. The police had reason to believe that the suspect was armed and dangerous. Id., 291. The police proceeded to the address identified by the witness and were permitted to enter by an occupant of the residence. Id., 288. Upon entry, the police were able to see the defendant through an open door to one of the apartment’s bedrooms. Id. The police crossed the threshold of the bedroom, roused the defendant and took him into custody. Id., 288-89. After trial, the defendant appealed the denial of his motion to suppress certain evidence obtained as a result of the warrantless entry by the police into the bedroom where he was staying as an overnight guest.

The Supreme Court in Aviles upheld the trial court’s decision, concluding that exigent circumstances justified the warrantless police entry into the bedroom. Id., 295. Specifically, the Aviles court determined that “a reasonable police officer, having gained legitimate entry to the apartment from where he saw the defendant through an open doorway, reasonably would have believed that it was necessary to enter the bedroom to determine whether the defendant, who within the past twelve hours had shot and killed one person with a gun that had not yet been recovered, was still armed and, therefore, posed a continuing danger to human life and public safety.” (Emphasis added.) Id., 296.

Here, in contrast, the police were not relying on either their own or an eyewitness’ affirmative identification of Singer. The lights in the bedroom were off, the door to the bedroom was slightly ajar and there is no indication in the record that the police could see the occupants of the bedroom. Rather, the trial court’s limited findings, the testimony at the suppression hearing and the state’s position at oral argument reveal the following factors in support of the belief by the police that Singer was present in the bedroom at the time of the warrantless entry: (1) the cellular telephone ping information, (2) the general description given by the landlord and (3) Blanca Valvo’s statement that two African-American males were present in the apartment. Under the totality of the circumstances known to the police at the time of their entry into the bedroom, including but not limited to the absence of any specific identification by the landlord or Blanca Valvo of a light-skinned African-American male with tear drop tattoos on his face as one of the persons present in the apartment or the bedroom, we conclude that it was unreasonable for the police to assume that Singer was present in the apartment or the bedroom and posing an imminent threat of harm to its occupants. Accordingly, it was improper for the court to conclude that an exigency justified the warrantless entry.

Thus, although it may be clear that the police had probable cause to believe that Singer had committed the New Jersey homicide, that he was armed and that he posed a continuing threat to others, there is no evidence in the record that persuades us that the police had a reasonable basis to believe that an immediate warrantless entry of the bedroom was necessary. Rather, at the time the New Jersey police entered the bedroom, their belief that Singer was armed, present, and posing an immediate danger to their safety and the safety of those in the residence was premised on a string of attenuated speculation without any positive identification of Singer.

Specifically, although the trial court found that the cellular telephone ping “indicated that [Singer] had connections with a residence in Stamford focusing on the third floor apartment at 239 Knickerbocker Avenue,” it does not follow from the court’s finding that the ping established Singer’s presence in the bedroom at the time of the police entry. Rather, the record provides that a particular cellular telephone that the New Jersey pohce believed to be associated with their investigation was located at a particular location — the area of 239 Knickerbocker Avenue — at a time prior to the arrival of the New Jersey pohce in Stamford. There is no indication in the record, and the court made no finding, that the pohce utilized “real time” tracking of the cellular telephone. Furthermore, the record does not indicate that the New Jersey pohce again sought to cause the service provider to ping the cellular telephone either upon their arrival in Stamford, immediately prior to traveling to the apartment, entering the apartment, or entering the bedroom. In addition, there is no evidence in the record that the pohce questioned Blanca Valvo regarding the cellular telephone or that they attempted to call the telephone while in the apartment in an effort to determine its location. Nor is there any indication in the record that the pohce ultimately recovered the cellular telephone from the apartment. Even if we were to assume that the pohce had information establishing that the telephone physically was present in the area of 239 Knickerbocker Avenue at the time of their entry into the bedroom, such information does not estabhsh Singer’s presence in the bedroom of Blanca Valvo’s third floor apartment.

In addition, the record is inconclusive with regard to Blanca Valvo’s reaction when questioned about Singer. Guzda testified at the suppression hearing that he and Delgado explained to Blanca Valvo “who we were looking for, and that we had an arrest warrant; that he was wanted for homicide,” and that Blanca Valvo “told us that she did not know what we were talking about. The name did not mean anything to her. And she did tell Officer Delgado that my daughter is here, and she had [two] other black male friends with her.” Delgado testified that upon learning that Blanca Valvo’s daughter was in the apartment with “two friends,” she asked Blanca Valvo “if they [were] two black males, and she said yes.” Delgado further testified that she did not recall whether anyone asked Blanca Valvo whether she knew Singer. Whipple testified that Blanca Valvo had not told him anything specific about Singer, but that she “indicated that her daughter was in a bedroom with two African-American males.” Demeo testified that, once let inside the apartment by Blanca Valvo, “we told her that we were looking for a black male in reference to a case. And she told us that basically, there were two black males in a bedroom with her daughter, in the back of the house — the apartment.” Blanca Valvo, herself, testified that the police officers showed her photographs of “some guys that I didn’t even know, and says, are you sure you don’t know this guy? I said, I don’t know, I haven’t seen him.” We are persuaded from our review of the record that Blanca Valvo never affirmatively identified Singer.

Finally, the landlord’s identification provides little support for a conclusion of exigency. According to Guzda’s suppression hearing testimony, the landlord told him that a “young lady” who lived in the third floor apartment of 239 Knickerbocker Avenue “was recently keeping company with a black male that basically fit the description of Mr. Singer.” Guzda admitted during cross-examination that the description given, however, “could have fit the description of numerous other black males.” Moreover, the record does not indicate that the landlord was shown a photograph of Singer, and, aside from the statement that an apartment occupant recently was “keeping company” with an African-American male, there is no indication that the landlord had seen any African-American male matching Singer’s general description enter the third floor apartment that evening. Guzda testified that the landlord was provided with “limited information” because the police “didn’t feel comfortable sharing too much with this party.”

“The parameters of exigent circumstances are neither so well defined nor so sharply delineated that the phrase may be regarded as a free port of entry for all purposes.” State v. Guertin, supra, 190 Conn. 447. Although direct evidence of an emergency situation is not required to trigger the exigency exception to the warrant requirement; State v. Ryder, 301 Conn. 810, 830, 23 A.3d 694 (2011); State v. Colon, 272 Conn. 106, 147, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); on the basis of the limited facts found by the court and in light of our searching review of the record, we cannot conclude that the state affirmatively demonstrated that a reasonable police officer, given the totality of the circumstances presented at the time of entry into the bedroom, would have determined that exigent circumstances justified either New Jersey or Stamford police officers making a warrantless entry into this darkened bedroom near midnight. The mere presence of two African-American males, neither of whom were identified as Singer and who, at best, answered to a general description applicable to numerous African-American males, combined with the location of a cellular telephone, registered to another individual, that may or may not have been possessed by Singer, fails to provide a reasonable basis for the conclusion that Singer was present in the bedroom at the time of entry. Therefore, we conclude that, under the totality of the circumstances, the police did not have reasonable grounds to believe that an exigency existed at the time they entered the bedroom.

“To discourage unreasonable searches and seizures, the evidence obtained as a direct result of that illegal search or seizure, as well as the fruits, or evidence derived therefrom, are excluded from evidence, unless the connection between the fruits and the illegal search has been sufficiently attenuated to be purged of its primary taint. Segura v. United States, 468 U.S. 796, 804-805, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984).” (Internal quotation marks omitted.) State v. Ryder, supra, 301 Conn. 821. In the present matter, suppression of the evidence seized by the police is warranted.

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to suppress and for further proceedings thereon.

In this opinion the other judges concurred.

       In addition, the defendant claims that the court improperly instructed the jury on the element of possession. Because we determine that the court improperly denied the defendant’s motion to suppress and, accordingly, reverse the judgment of the court on that ground, we do not reach the improper jury instruction claim.

       “Cellular service providers typically do not maintain records of the GPS coordinates of ceEular telephones operating on their network, but the provider may generate such location data at any time by sending a signal directing the buüt-in sateEite receiver in a particular ceEular telephone to calculate its location and transmit the location data back to the service provider. This process, known as ‘pinging,’ is undetectable to the ceEular telephone user.” In re Application of United States of America for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone, United States District Court, Docket No. 10-2188-SKG (D. Md. August 3, 2011).
      “Despite the superior accuracy of GPS location technology, however, it is not without limitations. CeEular telephone users may be able to disable GPS functionality and GPS may not work reHably in the event that the receiver’s view of sateEites is obstructed.” Id.

       Although raising claims under both the federal and Connecticut constitutions, the defendant does not provide an independent analysis under the state constitution demonstrating that he was entitled to greater protection from unreasonable search and seizure. “Because the defendant . . . undertakes no independent analysis of his state constitutional claim, we address only his claim under the federal constitution. See, e.g., State v. Melendez, 291 Conn. 693, 704 n.16, 970 A.2d 64 (2009); State v. Johnson, 288 Conn. 236, 244 n.14, 951 A.2d 1257 (2008).” State v. Ryder, 301 Conn. 810, 817 n.4, 23 A.3d 694 (2011). We note, however, that “the standard of reasonableness governing police conduct under the exigent circumstances doctrine is the same under both constitutions. State v. Blades, 225 Conn. 609, 623-24, 626 A.2d 273 (1993).” State v. Aviles, 277 Conn. 281, 287 n.3, 891 A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166 L. Ed. 2d 69 (2006).

       The defendant does not raise the issue of probable cause to arrest Singer, does not contest that the police were allowed to enter the apartment by consent and does not contest the subsequent search of the backpack found in the bedroom. Moreover, the state does not appear to contest that the defendant had an expectation of privacy in the bedroom where he was found by the police. See State v. Aviles, 277 Conn. 281, 292 n.8, 891 A.2d 935 (overnight guest entitled to expectation of privacy and security from search and seizure absent consent or exigent circumstances), cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166 L. Ed. 2d 69 (2006). Therefore, our review is confined to the issue of whether the court properly concluded that there were exigent circumstances that justified a warrantless entry into the bedroom.

       On February 2, 2010, after filing this appeal, the defendant filed a notice that a memorandum of decision on the motion to suppress had not been filed. Rather than provide a signed copy of the transcript from the October 14,2009 suppression hearing, on March 9,2010, the trial court filed a written memorandum of decision. The written memorandum provides a chronology of witness testimony and, further, adopts most of the factual findings set forth in the court’s oral ruling. There are, however, some discrepancies between the two decisions. Specifically, the trial court’s written memorandum of decision interposes new factual findings regarding the cellular telephone information relied upon by the police in their search of the apartment. Neither party has raised an issue regarding these discrepancies, and the defendant has not filed a motion for articulation or rectification in the present matter.

        “[W]e believe it preferable not to choose between the trial court’s conflicting memoranda unless the circumstances objectively indicate a clear and convincing basis for our selection.” State v. Wilson, 199 Conn. 417, 439, 513 A.2d 620 (1986). “On occasion, we will entertain appellate review of an unsigned transcript when it sufficiently states the court’s findings and conclusions.” In re Anthony E., 96 Conn. App. 414, 417, 900 A.2d 594, cert. denied, 280 Conn. 914, 908 A.2d 535 (2006). Here, however, the trial court provided a signed, written memorandum of decision, satisfying the requirements of Practice Book § 64-1. Accordingly, we will base our analysis on the findings provided in the trial court’s written memorandum of decision.
      In addition, we must address the scope of the court’s factual findings in the written memorandum. The parties disagree as to how the written memorandum should be construed. The state argues that a summary of witness testimony contained in the memorandum is merely a recitation of testimony provided by various witnesses and not the court’s factual findings. The defendant argues that the court’s recitation of witness testimony amounts to factual findings, evincing the intent of the court to provide a selective chronology of events and root its findings in particular witness testimony. We agree with the state that the court’s recitation of witness testimony should not be construed as factual findings. Accordingly, we will only look to that portion of the written memorandum that parallels the court’s oral ruling at the suppression hearing in considering the court’s factual findings.

       Nor does the record contain any evidence that the 239 Knickerbocker Avenue address was associated with Singer through, for example, utilities statements, a rental agreement, the presence of a known relation, or some other indicia of residency.

       As previously set forth, the court found that the cellular telephone was registered to Pettigrew, not Singer.


text:
    STATE OF CONNECTICUT v. JOHN MCCORMACK
    (AC 31584)
    DiPentima, C. J., and Beach and Bear, Js.

      Argued September 22
    officially released December 13, 2011

      Alan Jay Black, for the appellant (defendant).

      Samuel S. Saltman, certified legal intern, with whom were Harry Weller, senior assistant state’s attorney, and, on the brief, Michael L. Regan, state’s attorney, and Thomas M. DeLillo, assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, John McCormack, appeals from the judgments of conviction, rendered after he entered conditional pleas of nolo contendere to the offenses of larceny in the first degree in violation of General Statutes § 53a-122, burglary in the third degree in violation of General Statutes § 53a-103 and stealing a firearm in violation of General Statutes § 53a-212. On appeal, the defendant claims that the trial court improperly denied his motion to suppress certain evidence. We disagree, and, accordingly, affirm the judgments of conviction.

In its September 8, 2008 memorandum of decision denying the defendant’s motion to suppress, the trial court set forth the following facts. “During the early months of 2007, a rash of residential burglaries occurred in the Norwich/Bozrah area near Wawecus Hill Road, Briar Hill Road (Norwich) and South Road (Bozrah). One such burglary occurred in the early afternoon on February 14, 2007, at 12 Wawecus Hill Road at a home owned by [Leon] and [Rena] Bamowski. [Rena] Barnowski was preparing to leave her home on a clear, cold day. She saw a person wearing a black or blue colored sweatshirt with hood pulled over the head with dark pants walking in front of her home. The individual was of an unknown race but appeared to have the upper body shape of a man. She left home and returned approximately one hour later finding her home broken into with several items of personal property stolen including her husband’s .38 caliber handgun.

“Two days prior to the break-in, [Leon and Rena] Bamowski had seen a similar looking person walking by their home between 12 and 2 p.m. [Leon Bamowski] described him as a suspicious looking person with a dark colored hooded sweatshirt with the hood pulled over his head. He was looking down in a manner that was not consistent with the normal people seen walking on their street in their rural neighborhood. Their view was clear and unobstructed and [at] a distance of 90 to 100 feet.

“After the break-in on February [14], the Bamowskis supplied information to a trooper from the Connecticut state police of the burglary, [a] description of the individual seen on February [12] and [14] and the items stolen which included cash, a flashlight and the handgun. The trooper in turn disseminated the information to local police departments including the Norwich police.

“During the time period of the Bamowski burglary, other burglaries were occurring in the street areas in question. Trooper [Harold] French, who was investigating those crimes, developed a similar description from another source or witness. [Scott] Carr of 273 Old Salem . . . Road, Bozrah, gave a statement on March 19, 2007, indicating that he observed a person described as a mixed male Hispanic and white wearing snow camo pants, a white jacket with a black hood or sweatshirt underneath with the hood over his face. . . . Carr’s home was broken into by an unknown burglar. . . . Carr also described the individual as having his hood on and his face was down. . . . Carr saw the man shortly after his home was broken into in and around the time the Bamowski home was burglarized. That information was also supplied to the Norwich police department by the state police.

“During the lunch hour of March 21, 2007, [Rena] Bamowski saw an individual matching the description of the person she saw walking by her house on February [12] and [14]. She contacted her husband who contacted the Norwich police department. Officers [Joseph] Dolan and [Peter] Camp were dispatched to the area in question. Each officer was aware that the individual matching the description had been seen in the Wawecus Hill Road area during the time that the previous burglaries had occurred and that a handgun had been stolen.

“Both officers observed the defendant walking on Carey Lane in Norwich after directions as to his whereabouts [were] supplied by [Rena] Bamowski. He was wearing a black hooded sweatshirt with the hood pulled over his head. He had his hands in the pockets of his sweatshirt.

“Officer Dolan ordered the defendant to remove his hands from his sweatshirt pocket and the defendant complied. He then advised the defendant that he was not under arrest and that he was detained. The officer then handcuffed the defendant for his and the officer’s safety. Officer Dolan then began to pat him down for weapons. Immediately while patting him down, Dolan saw a handgun in his sweatshirt pocket. The defendant told the officer that he was not properly licensed nor legally permitted to carry the gun. The defendant was then advised of his rights and placed under arrest.”

The state initially charged the defendant with various criminal violations in multiple dockets. The defendant moved to suppress the evidence obtained by the police during the investigatory stop, including his statements to the police, as fruit of an unlawful search and seizure pursuant to the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut. Following an evidentiary hearing, the court denied the defendant’s motion to suppress. On the basis of the facts previously set forth, the court concluded that, under the totality of the circumstances, the defendant’s detention and search were justified by a reasonable and articulable suspicion. Specifically, the court noted that the police were “sent out to locate an identifiable individual who was seen in the area prior and subsequent to the specific burglaries in the same general locale by at least three individuals.” In addition, the court noted that descriptions of the burglary suspect given to police, while not identical, “were significantly similar describing a male with dark clothes, a hooded sweatshirt, looking down with hands in his pockets.”

After the court denied his motion to suppress, the defendant entered conditional pleas of nolo contendere to one count each of larceny in the first degree, burglary in the third degree and stealing a firearm. The court accepted the pleas and sentenced the defendant to a total effective term of twelve years incarceration, execution suspended after four years, followed by five years probation. The state entered a nolle prosequi on each of the other open counts. This appeal followed.

On appeal, the defendant claims that the trial court improperly denied his motion to suppress. The defendant argues that, because there was no articulable suspicion justifying his detention and the subsequent search of his person, the court’s erroneous denial of his motion violated his rights under the state and federal constitutions. We are not persuaded.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... We undertake a more probing factual review when a constitutional question hangs in the balance.” (Citation omitted; internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 843, 955 A.2d 43 (2008).

The standards governing our analysis under article first, §§ 7 and 9, of our state constitution “mirror those set forth by the United States Supreme Court in Terry v. Ohio, [392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)], with regard to [federal] fourth amendment analysis . . . .” State v. Oquendo, 223 Conn. 635, 654, 613 A.2d 1300 (1992). “[T]he touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security . . . and that reasonableness depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers .... [A] police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest. . . . [T]he officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling his suspicions.” (Citations omitted; internal quotation marks omitted.) State v. Kelly, 129 Conn. App. 109, 117-18, 19 A.3d 223, cert. granted on other grounds, 302 Conn. 920, 28 A.3d 338 (2011).

“Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. ... In determining whether a detention is justified in a given case, a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity. . . . The threshold for reasonable and articulable suspicion requires less than probable cause .... The determination is not a technical one, but is informed by the factual and practical considerations of everyday life. ... In this respect, the perceptions of an experienced police officer might have more significance to him in determining whether the law is being violated at a given time and place than they would have to a layman . . . .” (Internal quotation marks omitted.) State v. Rodriguez, 121 Conn. App. 250, 256, 994 A.2d 691, cert. denied, 297 Conn. 918, 996 A.2d 278 (2010).

The defendant argues that his seizure was improper because the police did not have a reasonable and articulable suspicion to justify their actions. The defendant argues that the record contains no indication that he was observed directly engaging in criminal conduct or suspicious activity. Rather, the defendant contends that he simply was walking down a street, dressed appropriately for a brisk March day, in an area where there had been a number of recent burglaries; he was never observed exiting a residence, carrying personal property or otherwise engaging in behavior consistent with that of a burglar.

Viewed in isolation, the defendant’s presence in the particular neighborhood where he was seized by the police; State v. Oquendo, supra, 223 Conn. 655 n.11 (“[a] history of past criminal activity in a locality does not justify suspension of the constitutional rights of everyone, or anyone, who may subsequently be in that locality” [internal quotation marks omitted]); the time of day when he was observed walking in that neighborhood; State v. Donahue, 251 Conn. 636, 645, 742 A.2d 775 (1999) (car parked at particular location at early morning hour not criminal in and of itself), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000); his manner of dress; State v. Oquendo, supra, 655 (manner of dress, although consistent with burglar profile, also consistent with homeless individual); and the peculiarities of his gait may appear innocuous or susceptible to an innocent explanation. Nonetheless, when considered under the totality of the circumstances presented, including the information received from the victims and the investigation of the prior burglaries, we conclude that those same factors provide the basis for a sufficient articulable suspicion to conduct an investigatory stop. Cf. State v. Staton, 120 Conn. App. 497, 506, 992 A.2d 348 (“[a]n investigative stop can be appropriate even where the police have not observed a violation because a reasonable and articulable suspicion can arise from conduct that alone is not criminal”), cert. denied, 297 Conn. 911, 995 A.2d 640 (2010); see also State v. Mitchell, 204 Conn. 187, 195-96, 527 A.2d 1168 (victim identification of suspects and vehicle provided basis for reasonable suspicion), cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987); State v. Jennings, 19 Conn. App. 265, 269, 562 A.2d 545 (“[t]he possibility of an innocent explanation does not deprive the officers of the capacity to entertain a reasonable suspicion of criminal conduct” [internal quotation marks omitted]), cert. denied, 212 Conn. 815, 565 A.2d 537 (1989).

Here, the court’s factual findings and the suppression hearing testimony provide ample support for its conclusion that the stop was justified by a reasonable and articulable suspicion. The defendant was observed in geographic and temporal proximity to a series of recent burglaries. Not only had the burglaries occurred within the month preceding the defendant’s seizure, but the latest in the series had occurred only two days prior to Rena Bamowski’s March 21, 2007 observation of the defendant whom she previously had seen walking outside her home on February 12 and 14, 2007. Moreover, the defendant was observed in the same residential area where the burglaries had occurred, at the same approximate time of day when those burglaries had occurred. The police were aware of these prior incidents and, in addition, were aware that a gun had been stolen. The police were acting pursuant to an official dispatch describing a suspicious individual, and, furthermore, the defendant matched the physical description of the burglary suspect that the police had developed, in part, through interviews with burglary victims. Although the defendant argues that there were discrepancies among the physical descriptions provided to the police, reasonable suspicion need not be predicated upon perfectly consistent descriptions. State v. Rodriguez, 239 Conn. 235, 246-47 n.18, 684 A.2d 1165 (1996) (“[w]hat must be taken into account [when determining the existence of a reasonable and articulable suspicion] is the strength of those points of comparison which do match up and whether the nature of the descriptive factors which do not match is such that an error as to them is not improbable” [internal quotation marks omitted]).

The defendant further argues that the facts of this case are similar to those in State v. Oquendo, supra, 223 Conn. 635. The defendant contends that his maimer of dress on a winter day “is not even close to the level of suspicious conduct noted in Oquendo,” and, furthermore, argues that actions of the defendant in Oquendo — carrying a duffel bag in a high crime neighborhood at 1 a.m. — “are much more suspicions] than the actions in our case.” We are not persuaded.

In Oquendo, a police officer came upon the defendant and his companion while patrolling a neighborhood where there had been a series of burglaries. State v. Oquendo, supra, 223 Conn. 640-41. Although it was a warm August evening, the officer observed that the defendant was wearing a heavy winter jacket. Id., 641. The defendant also was carrying a duffel bag. Id. Moreover, the police officer was aware that the defendant’s companion previously had been arrested on burglary charges. Id. The officer testified that he had a “ ‘hunch’ ” that the defendant and his companion had committed or were about to commit a burglary. Id. After asking the defendant a few questions, the officer instructed him to approach his cruiser with the duffel bag. Id., 641-42. The defendant, in response, ran from the officer and threw the bag near a wooded area. Id., 642. The officer recovered the bag which contained “two plastic bags containing white powder, which subsequently tested positive for cocaine.” Id.

The Oquendo court held that the investigative stop of the defendant was not constitutionally sound. Id., 655. In reaching that conclusion, the court determined that “[although burglaries had been reported in the general area of [the police officer’s] patrol, [the police officer] had not received any report that a burglary had been committed in that area on [that] evening . . . nor did he possess information linking the defendant or [his companion] to a particular burglary in the area. Moreover, although [the police officer] testified that the manner of dress of the defendant and [his companion] fit the profile of burglars, he acknowledged that homeless people often dress in a similar manner and carry items with them. The fact that [the defendant’s companion] was known to [the police officer] as a recent arrestee for larceny and burglary could not supply [the police officer] with reasonable suspicion about the defendant. In addition, the fact that [the police officer] did not recognize the defendant from his familiarity with ‘street people’ in Wallingford could not provide justifiable grounds for a stop.” Id.

The present matter is distinguishable. Here, there was reliable information provided by some of the victims, Carr and the Bamowskis; see State v. Daley, 189 Conn. 717, 723-24, 458 A.2d 1147 (1983) (information provided by victim or witness to crime accorded higher degree of reliability than other informants); 2 W. LaFave, Search and Seizure (4th Ed. 2004) § 3.4 (a), p. 226 (“any person purporting to be a crime victim or witness may be presumed reliable, though the police must remain alert to the existence of any circumstances which would make that presumption inoperative in a particular case”); linking an individual matching the defendant’s general physical description to the recent burglaries in the area. In addition, the defendant was seized at a time and in a location consistent with the burglary suspect’s pattern of behavior, as established through the police investigation. When Dolan and Camp approached the defendant, they were not only relying on his physical similarity to the description developed through the burglary investigation, but also on the Bamowskis’ belief that the defendant was the same individual they had witnessed outside their home prior to it being burglarized. These facts readily distinguish the present case from Oquendo.

The defendant also argues that the police officers’ actions in immediately handcuffing and patting him down were unnecessary. The defendant contends that “the stop by the police officer is bad at its inception; the immediate handcuffing of the defendant was an extreme measure to be taken.” We disagree.

“It is well established . . . that [a] police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. . . . The authority to permit a reasonable search for weapons for the protection of the police officer is narrowly drawn applying only where he has reason to believe that he is dealing with an armed and dangerous individual .... The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. . . . And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” (Internal quotation marks omitted.) State v. Jenkins, 298 Conn. 209, 234, 3 A.3d 806 (2010).

In the present case, the court found that, upon being dispatched to investigate the presence of a suspect matching the description of the burglary suspect developed by the police, Dolan and Camp were “aware that the individual matching the description had been seen in the Wawecus Hill Road area during the time that the previous burglaries had occurred and that a handgun had been stolen.” At the suppression hearing, Camp testified that when he approached the defendant, “the suspect was walking down, looking at the pavement, with a hood over his head and his hands in his pocket . . . .” Camp further testified he ordered the defendant to remove his hands from his sweatshirt “[t]o make sure that he didn’t have a gun in his hand,” and that he based his request on his knowledge of the stolen handgun. Under the circumstances presented at the time of the defendant’s seizure, the police acted pursuant to a reasonably prudent belief that their safety and the safety of others — including the defendant — was in danger. Accordingly, the patdown of the defendant, while in handcuffs, was reasonable.

“[I]n justifying [a] particular intrusion [a] police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Internal quotation marks omitted.) State v. Jensen, 109 Conn. App. 617, 622, 952 A.2d 95 (2008). Under the totality of the circumstances, the police had a reasonable and articulable suspicion justifying the seizure and protective patdown of the defendant. On the basis of his identification by one of the victims, his proximity to the area of a series of recent burglaries, the time of day he was walking in that particular area, his physical similarity to the description developed by the police through citizen informants and reasonable inferences to be drawn therefrom, the police had reasonable suspicion to believe that the defendant had engaged in or was about to engage in criminal activity. Furthermore, on the basis of the facts found, the police had reasonable suspicion to believe that the defendant illegally possessed a firearm. Our review of the record supports the court’s determination that the stop and frisk of the defendant was justified by a reasonable and articulable suspicion.

The judgments are affirmed.

In this opinion the other judges concurred.

       Pursuant to the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution, on July 17, 2008, the defendant moved to suppress the evidence obtained by the police, including the oral and written statements made by the defendant to the police.

       The defendant’s charges were contained in eight separate dockets. Specifically, the defendant was charged under docket CR-07-100764 with carrying a dangerous weapon in violation of General Statutes § 53-206, possession of burglar’s tools in violation of General Statutes § 53a-106, stealing a firearm in violation of General Statutes § 53a-212, failure to carry a pistol permit in violation of General Statutes § 29-35 (b) and larceny in the third degree in violation of General Statutes § 53a-124. The defendant was charged under docket CR-07-101032 with burglary in the third degree in violation of § 53a-103 and criminal mischief in the third degree in violation of General Statutes § 53a-117. The defendant was charged under docket CR-07-101821 with burglary in the third degree, criminal mischief in the third degree and larceny in the sixth degree in violation of General Statutes § 53a-125b. The defendant was charged under docket CR-07-101028 with burglary in the second degree in violation of General Statutes § 53a-102, three counts of larceny in the sixth degree, two counts of fraudulent use of an automated teller machine in violation of General Statutes § 53a-127b, three counts of burglary in the third degree, larceny in the fifth degree in violation of General Statutes § 53a-125a and two counts of criminal mischief in the third degree. The defendant was charged under docket CR-07-101033 with larceny in the first degree in violation of § 53a-122. The defendant was charged under docket CR-07-101822 with burglary in the third degree, criminal mischief in the third degree and larceny in the fifth degree. The defendant was charged under docket CR-07-101031 with burglary in the third degree, larceny in the sixth degree and criminal mischief in the third degree. The defendant was charged under docket CR-07-101034 with burglary in the third degree, larceny in the fifth degree and stealing a firearm.

       The defendant pleaded nolo contendere to larceny in the first degree in docket CR-07-101033. The defendant’s other pleas were entered in docket CR-07-101034.

       General Statutes § 54-94a provides that a defendant may appeal from the denial of a motion to suppress after having entered a conditional plea of nolo contendere so long as the trial court determines that the ruling on the motion to suppress “would be dispositive of the case. . . .” The plea form in the present matter did not indicate whether the court determined that the ruling on the defendant’s motion to suppress would be dispositive and a review of the plea hearing transcript reveals that the court did not explicitly indicate that its ruling on the motion to suppress would be dispositive. The parties stipulated at oral argument, however, and we agree that the record allows this court reasonably to infer that the trial court determined that denial of the motion to suppress was dispositive because the court accepted the conditional nolo contendere plea in the present matter.

       Aside from claiming violations of his constitutional rights under the fourth amendment to the United States constitution, the defendant claims that there is an independent state ground for deciding this matter under article first, §§ 7 and 9, of the constitution of Connecticut. The defendant argues that our state constitution provides greater protection than the federal constitution in determining what conduct constitutes a seizure. Although the defendant is correct in noting that we provide a higher standard of protection when considering whether an individual was seized by police; see, e.g., State v. Oquendo, 223 Conn. 635, 649-50, 613 A.2d 1300 (1992); the question of whether the defendant was seized is not at issue in the present matter. See footnote 6 of this opinion. Rather, the relevant inquiry on appeal is whether such seizure was supported by a reasonable suspicion. We note that the standards we apply to our determination of whether a police seizure was justified by reasonable suspicion under our state constitution mirror those set forth by the United States Supreme Court with regard to fourth amendment claims. See, e.g., State v. Donahue, 251 Conn. 636, 644, 742 A.2d 775 (1999), cert. denied, 531 U.S. 924, 121 S. Ct. 299, 148 L. Ed. 2d 240 (2000). Thus, we undertake the same analysis of the defendant’s claim under both our federal and state constitutions. State v. Staton, 120 Conn. App. 497, 505 n.3,992 A.2d 348 (“because the constitutional principles that govern what constitutes reasonable and articulable suspicion are the same under both the state and federal constitutions, we need not separately analyze this claim under each constitution”), cert. denied, 297 Conn. 911, 995 A.2d 640 (2010); cf. State v. Aviles, 277 Conn. 281, 286 n.3, 891 A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166 L. Ed. 2d 69 (2006).

       “Ordinarily, [w]hen considering the validity of a . . . stop, our threshold inquiry is twofold. . . . First, we must determine at what point, if any, did the encounter between [the police officer] and the defendant constitute an investigatory stop or seizure. . . . Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred.” (Internal quotation marks omitted.) State v. Clark, 297 Conn. 1, 7-8, 997 A.2d 461 (2010).
      The state concedes that the defendant was seized by the police. Therefore, we restrict our analysis to whether the actions of the police were supported by a reasonable and articulable suspicion.


author: GRUENDEL, J.

text:
    BRIAN NIBLACK v. COMMISSIONER OF CORRECTION
    (AC 31352)
    Gruendel, Beach and Robinson, Js.
    Argued October 24
    officially released December 13, 2011

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

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

GRUENDEL, J.

The petitioner, Brian Niblack, appeals following the denial of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. We dismiss the appeal.

The petitioner was involved in a shooting incident in 1987. As recounted by our Supreme Court in the petitioner’s direct appeal, “[o]n the morning of June 11, 1987, Dean Allen, the son of the murder victim, James Allen, had become involved in a fight with Harvey Ward on Eastern Circle in New Haven. Later in the day, Ward telephoned the [petitioner], who did not reside on Eastern Circle, to come to the area. The [petitioner], Ward and two other individuals arrived at Eastern Circle and found a fight taking place between Dean Allen and Derrick Gillian. The victim was attempting to break up the fight when the [petitioner] displayed a gun, which he fired several times into the air. The victim told the [petitioner] to put the gun away and, as the victim stepped toward him, the [petitioner] leveled the gun and fired one shot striking the victim in the heart. The victim died as a result of this wound.” State v. Niblack, 220 Conn. 270, 274, 596 A.2d 407 (1991).

The petitioner thereafter was charged with murder in violation of General Statutes § 53a-54a, escape from custody in violation of General Statutes § 53a-171 and kidnapping in violation of General Statutes §§ 53a-92 (a) (2) (B) and 53a-8. Prior to trial, the petitioner pleaded guilty, pursuant to the Alford doctrine, to the charges of murder and escape from custody. In accordance with the terms of his plea agreement, the petitioner was sentenced to fifty years incarceration. He subsequently appealed directly from the judgments of conviction, which our Supreme Court affirmed. Id., 270.

In 1996, the petitioner filed a petition for a writ of habeas corpus predicated on the alleged ineffective assistance of trial counsel. In that petition, he alleged that counsel failed (1) to communicate in a manner so that the petitioner understood the consequences of his plea agreement, (2) to research the effect of the petitioner’s plea agreement on his right to appeal and (3) to advise him of the option of entering a conditional plea of nolo contendere. Following a trial, the habeas court rejected those claims and denied the petition. The petitioner then filed a petition for certification to appeal to this court, which the habeas court denied.

In appealing from that judgment to this court, the petitioner claimed that the habeas court improperly determined that he had defaulted procedurally and that his guilty plea was knowing, intelligent and voluntary. In the introductory paragraph of the opinion dismissing that appeal, this court noted that the petitioner in his principal appellate brief “failed to address whether the habeas court abused its discretion in denying his petition for certification to appeal.” Niblack v. Commissioner of Correction, 80 Conn. App. 292, 293, 834 A.2d 779 (2003), cert. denied, 267 Conn. 916, 841 A.2d 219 (2004). Although we next stated that we “therefore dismiss the appeal”; id.; our discussion did not end there. Rather, this court proceeded to detail “the relevant facts found by the habeas court in its well researched and well reasoned memorandum of decision.” Id., 294. We next outlined the specific legal conclusions reached by the court underlying its denial of the petition for a writ of habeas corpus, stating: “[T]he habeas court concluded that the petitioner had failed to sustain his burden to demonstrate both the cause of his failure to challenge the constitutionality of his guilty plea at trial and on appeal, and the prejudice that resulted therefrom. More specifically, the court found that at the petitioner’s sentencing, his attorney had indicated to the trial court that the evidence the state would present at trial was overwhelming, although the petitioner claimed the shooting at issue was in self-defense. Furthermore, on direct appeal, the petitioner had attacked the probable cause hearing on three grounds, all of which were of an evidentiary nature. The court concluded, as a matter of law, that the petitioner had failed to demonstrate that there was a reasonable probability that he would prevail on any of his probable cause claims. With respect to the petitioner’s claim that his attorney had failed to advise him of his option to enter a conditional plea of nolo contendere, the court credited the testimony of his attorney, i.e., that the plea agreement with the state precluded the petitioner from entering a conditional plea. The court also concluded that the petitioner had failed to show cause and prejudice as a result of the procedural default and denied the petition for a writ of habeas corpus.” Id., 296-98.

Our analysis then returned to the issue of the petitioner’s failure to address the court’s denial of his petition for certification to appeal in his principal brief. Although the petitioner addressed this issue in his reply brief, we explained that “an appellant may not raise an issue for the first time in a reply brief. ... An appellant’s claim must be framed in the original brief so that it can be responded to by the appellee in its brief, and so that we can have the full benefit of that written argument.” (Citations omitted; internal quotation marks omitted.) Id., 298. We then stated that we would not consider that portion of the petitioner’s reply brief. Id.

Admittedly, our prior opinion contains a cursory analysis. It nevertheless remains that this court, in resolving the appeal before it, articulated two distinct conclusions with respect to the petitioner’s appeal. As we stated in the final paragraph of our opinion: “We conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right, and, further, that he has failed to sustain his threshold burden of persuasion that the court’s denial of his petition for certification to appeal was a clear abuse of discretion or that an injustice has been done.” (Emphasis added.) Id. We thus dismissed the appeal and our Supreme Court thereafter denied the petition for certification to appeal therefrom. Niblack v. Commissioner of Correction, 267 Conn. 916, 841 A.2d 219 (2004).

On December 1, 2005, the petitioner commenced a second habeas action. It contained one count alleging ineffective assistance of habeas appellate counsel stemming from counsel’s failure to address the habeas court’s denial of his petition for certification to appeal in his principal brief. On May 1, 2009, the petitioner moved for summary judgment, and the respondent, the commissioner of correction, on June 4, 2009, filed a cross motion for summary judgment. The court heard argument on the matter on June 26, 2009, at the conclusion of which it rendered an oral decision denying the petition for a writ of habeas corpus. The court subsequently denied the petition for certification to appeal to this court, and this appeal followed.

As a threshold matter, the petitioner claims that the court abused its discretion in denying the petition for certification to appeal. To prevail, he must demonstrate “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). For two reasons, we conclude that the petitioner has not met that substantial burden.

First and foremost is this court’s decision in the petitioner’s prior habeas appeal. It bears repeating that the court held that “the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right . . . .” Niblack v. Commissioner of Correction, supra, 80 Conn. App. 298. Although the petitioner would have us treat that distinct determination as mere surplusage, we decline to do so. In resolving that appeal, this court expressly credited the “well researched and well reasoned memorandum of decision” of the habeas court. Id., 294. We then set forth the legal reasoning underlying that court’s rejection of the merits of the petitioner’s claims before ultimately concluding that the petitioner had not established a constitutional violation. Tellingly, the petitioner’s subsequent petition to our Supreme Court for certification to appeal contained two “[questions [presented for [r]eview: (1) Did the Appellate Court abuse its discretion by finding that [the] [petitioner’s state and federal constitutional rights were not violated? (2) Did the Appellate Court err in dismissing [the] [petitioner’s appeal since the denial of his petition for certification was not argued in his main brief but rather in the reply brief?” That petition plainly evinces an understanding that this court’s holding in Niblack v. Commissioner of Correction, supra, 292, was twofold.

Even if this court had not already held that the petitioner in his prior habeas appeal failed to make a substantial showing that he was denied a state or federal constitutional right, the petitioner still could not prevail. We carefully have reviewed the entire record, which includes numerous transcripts from both habeas proceedings, and the briefs before us. That review convinces us that the petitioner would not have prevailed on appeal if his counsel had addressed the denial of certification issue in his principal appellate brief. Accordingly, we conclude that the petitioner has not satisfied his burden of demonstrating “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Simms v. Warden, supra, 230 Conn. 616.

The appeal is dismissed.

In this opinion the other judges concurred.

       “Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt . . . but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 558 n.2, 941 A.2d 248 (2008).

       We note that the record before us contains a copy of the appellate brief filed by the respondent, the commissioner of correction, in the petitioner’s prior habeas appeal. In that brief, the respondent did in fact brief the issue of whether the habeas court abused its discretion in denying the petitioner’s petition for certification to appeal, a point emphasized by the respondent in this appeal.

       A copy of that petition for certification to appeal was submitted to the habeas court in this case by the respondent in support of her motion for summary judgment.