text:
    EARL G.
      v. COMMISSIONER OF CORRECTION
    (AC 27781)
    Harper, Robinson and Borden, Js.

      Argued January 9
    officially released April 8, 2008

      PaulR. Kraus, special public defender, for the appellant (petitioner).

      Margaret GaJfney Radionovas, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, and Robin D. Krawczyk, senior assistant state’s attorney, for the appellee (respondent).

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

   Opinion

HARPER, J.

The petitioner, Earl G., appeals following the denial of certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying certification to appeal and improperly rejected his claim that his trial counsel, John L. Stawicki, had provided ineffective assistance. We dismiss the petitioner’s appeal.

In 2001, the petitioner was arrested in connection with an alleged sexual assault of a minor child. He subsequently was charged with two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), and one count of each of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), forcible sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), and attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-70 (a) (1) and 53a-49.

The petitioner was convicted, after a trial by jury, of sexual assault in the first degree and both counts of risk of injury to a child, and acquitted of attempt to commit sexual assault and forcible sexual assault in the first degree. This court affirmed the judgment of conviction on direct appeal. See State v. [G.], 83 Conn. App. 90, 848 A.2d 549, cert. denied, 270 Conn. 913, 853 A.2d 529 (2004).

The petitioner subsequently filed a petition for a writ of habeas corpus, in which he claimed that Stawicki had rendered ineffective assistance by failing to introduce certain physical evidence and testimony, which, he alleged, was exculpatory in nature. The habeas court rejected the petitioner’s claims and then denied his petition for certification to appeal. This appeal followed.

“We begin by setting forth the applicable standard of review. Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] 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. . . .

“We examine the petitioner’s underlying claim of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable. . . .

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [j]udicia! scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Bowens v. Commissioner of Correction, 104 Conn. App. 738, 740-42, 936 A.2d 653 (2007).

Our review of the record reveals that at the petitioner’s criminal trial, the state presented the testimony of the victim, the victim’s mother, the apprehending officer and Elaine Yordan, a physician who had examined the victim after the sexual assault had occurred. The state produced no physical evidence of sexual assault.

At the habeas trial, the court heard testimony that Stawicki was aware of rape kit results, as well as medical records related to the victim’s treatment immediately following the sexual assault and later treatment with her personal physician. Despite the fact that none of these documents detailed physical evidence of sexual assault, Stawicki did not introduce them into evidence. Stawicki also did not present the testimony of a physician who had examined the victim on the day of the sexual assault or of the victim’s personal physician. This inaction on the part of Stawicki comprised the basis of the claim of ineffective assistance of counsel. The petitioner now challenges the habeas court’s rejection of this claim. We disagree.

Stawicki, in testifying at the habeas trial, elucidated his rationale for not introducing the aforementioned evidence during the following examination by the petitioner’s habeas counsel:

“Q. Okay. Was there a reason that this evidence was not offered?
“A. Yes.
“Q. And what would that be?
“A. Actually, there’s—there’s several factors. One, Dr. Yordan’s testimony basically underlined . . . our defense in that Dr. Yordan stated that she had—that there was no physical evidence of a sexual assault. . . .
* * *
“A. The more that you introduce, the more it appears that there’s something there. I thought that we had a very clean defense up to that point. We have a doctor that says there’s no evidence of sexual abuse. Why rub it in the jury’s eyes about all these complaints because the jury can start thinking, well, maybe the girl was going through all of this, that is why she pushed it this far.
“Q. Okay. So, you didn’t feel that it was important to introduce physical evidence that showed no signs of any force or physical assault from one of the actual days she was alleging assault?
“A. It was enough to have the doctor say that there was nothing there.
“Q. Okay.
“A. And the state, as the jury is told, has the burden of proof. And at that point, if the state doesn’t put it in, I don’t want more in front of the jury. Then, I’m just able to say the state produced no evidence.”

Upon considering his testimony, the court concluded that Stawicki’s decision not to introduce the contested evidence amounted to a sound tactical device, explaining that the contested evidence “strongly suggests to the court that [that evidence] could well have served to support the victim’s claims in the minds of the jurors.” On the basis of Stawicki’s tactical concerns related to this evidence, we agree with the court that his representation did not fall below an objective standard of reasonableness. See Vidro v. Commissioner of Correction, 105 Conn. App. 362, 368-69, 938 A.2d 607 (2008) (trial counsel's decision not to introduce alleged exculpatory evidence affirmed as sound legal strategy); Adorno v. Commissioner of Correction, 66 Conn. App. 179, 186, 783 A.2d 1202 (“presentation of testimonial evidence is a matter of trial strategy” [internal quotation marks omitted]), cert. denied, 258 Conn. 943, 786 A.2d 428 (2001).

In light of the foregoing conclusions, the petitioner has not demonstrated that the issues raised with regard to the court’s denial of his petition for a writ of habeas corpus are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. Thus, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner claims that the habeas court’s finding that Yordan examined the victim on the day of the sexual assault is clearly erroneous. We agree. The parties do not dispute that Yordan actually examined the victim more than three months later. Although the petitioner attaches great significance to this finding, we conclude that the strategy proffered by Stawicki, and deemed valid by the habeas court, was reasonable regardless of any error.


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    STEVEN SCHWARTZ v. FAMILY DENTAL GROUP, P.C., ET AL.
    (AC 27880)
    DiPentima, McLachlan and Stoughton, Js.
    Argued January 22
    officially released April 8, 2008

      Barbara M. Schellenberg, with whom was Stuart M. Katz, for the appellants (defendants).

      Edward Maum Sheehy, with whom, on the brief, was Suzannah K. Nigro, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

The defendants, Family Dental Group, P.C., Peter Munk and Family Dental Group-Clinton Associates, appeal from the judgment of the trial court granting the application by the plaintiff, Steven Schwartz, for injunctive relief to restore his partnership status. The dispositive issues on appeal are whether § 12 (a) (i) in the partnership agreement is enforceable, and, if so, whether such provision permits termination of one of the partner’s association with the partnership “without cause,” as long as ninety days notice is given. We conclude that the provision is enforceable and that the language of the parties’ contract is unambiguous and permits termination “without cause.” Accordingly, we reverse the judgment of the trial corut.

The following facts as found by the corut are not disputed. On July 31, 1991, the plaintiff, Ken Epstein, Munk and Epstein’s father, Gerald Epstein, entered into a partnership agreement. All four were dentists by profession. Under the partnership agreement, they formed Family Dental Group-Clinton Associates, located at 468 Clinton Avenue in Bridgeport.

In its memorandum of decision, the court made the following factual findings. “Neither of the Epsteins practiced at this location at any time subsequent to the formation of the partnership. Initially the Epsteins held a 50 percent interest in the practice, while [the plaintiff] and Munk each held a 25 percent interest. Upon Gerald Epstein’s death or retirement in 1995 or 1996, [the plaintiff] approached Munk about securing additional shares of the practice. An agreement was reached whereby the ownership interest was changed to one third each for Munk, [the plaintiff] and Ken Epstein.

“The final draft of the agreement contained the following pertinent terms: The partnership was to continue until the year 2051, unless the partners agreed to an early dissolution. The partners were looking to form an entity which would survive upon their death. The partners were to devote full professional time and attention to the partnership during the first five years of its inception. The two practicing partners, [the plaintiff] and Munk, were to receive 35 percent of their collections. Additionally, any profit beyond expenses would be put into a profit pool of which the first 20 percent would be divided equally between all three partners and the remaining, if any, would be divided equally between [the plaintiff] and Munk.

“From its formation until the present, the partnership has been successful, with increasing profits every year except in the year 2005. During the first five years, [the plaintiff] and Munk both maintained a full-time schedule. ... In 1997, [the plaintiff] decided to reduce his workload, decreasing his hours on Wednesdays and Thursdays, and eliminating Fridays.” Since the formation of the partnership, Munk maintained a consistent, full-time work schedule.

“Around 1997, when Munk became aware of [the plaintiffs] change in schedule, he became upset and ceased communicating with [the plaintiff]. According to Munk’s testimony, [the plaintiff] was also to blame for their breakdown in communication. Munk was dissatisfied with [the plaintiffs] management style, the way he conducted his practice, his refusal to accept [health maintenance organizations], take emergencies and work on Saturdays. He was also unhappy with [the plaintiffs] appearance, the condition of his work space, and the amount of vacation time he took. He expressed his dissatisfaction to Ken Epstein through letters he wrote to him over the course of several years; however, he did not approach [the plaintiff] directly with his concerns. Despite Munk’s unhappiness with him, [the plaintiff] was able to function normally in the office and interact appropriately with the remaining staff. Ken Epstein often acted as the mediator between Munk and [the plaintiff].

“Munk was also dissatisfied with both his compensation and [the plaintiffs] refusal to expand the facilities. Munk wanted to change the agreement to alter his compensation or alternatively terminate [the plaintiff] as a partner. At a meeting held in 1999, a proposal was made to allocate the 20 percent of profit in proportion to the collections of the practicing partners. Alternatively, Munk suggested that he should receive a management fee for his managerial duties. [The plaintiff] did not accept either proposal and insisted that the parties submit to mediation pursuant to the agreement. The mediation resulted in an award of a management fee for Munk in the amount of two thirds of 1 percent of the gross revenue.

“On October 28, 2002, Epstein and Munk offered to buy out [the plaintiffs] shares of the practice, or alternatively, to keep him as a graduated partner while eliminating his management responsibilities and his share of the profits. Epstein and Munk sent [the plaintiff] an offer letter for a buyout, which [the plaintiff] refused.

“On February 26, 2003, a special meeting of the partners was held. At the meeting, Ken Epstein and Munk voted to terminate [the plaintiff] from the practice.” Munk and Epstein terminated the plaintiffs association with the partnership “without cause” and provided him with ninety days notice pursuant to § 12 (a) (i) in the partnership agreement. As a result of the termination, the plaintiff filed a ten count complaint against the defendants. At trial, the plaintiff pursued only the first count of the complaint, in which he sought equitable relief pursuant to General Statutes §§ 34-339 and 34-362 (b) and restoration of his partnership status.

The court granted the plaintiffs request for injunctive relief and enjoined the defendants from terminating his association with the partnership. The court found that “the partnership’s termination date implie[d] that a reduction in workload was contemplated. Under § 1 of the agreement, the partnership will terminate on December 31,2051, unless the parties agree to an extension in writing, or agree to terminate at an earlier time.” The court concluded, stating that “this term in the contract implie[d] that there naturally would be a reduction in the number of hours a partner would devote to the practice over the years.” The court did not find persuasive “the defendants’ argument that § 12 (a) (i) of the agreement provides for termination without cause, as long as a ninety day notice is provided . . . .” Instead, the court found that “the provision, standing alone, is unenforceable. The court conclude [d] that no reasonable, educated person would sign an agreement whereby they could be stripped of their equitable interest in a business without a reasonable basis.” The court also found that “§ 12 (a) (i) of the agreement does not clearly state a majority of the partners can terminate another partner without any reasonable basis. Therefore, it is the court’s opinion that a reasonable basis for [the plaintiffs] termination must be provided.” The court concluded that because the defendants did not provide a reasonable basis for the plaintiffs termination and the reasons provided by the defendants were not sufficient to strip him of his equitable interest in the practice, the plaintiff was entitled to injunctive relief. This appeal followed.

On appeal, the defendants claim that the court improperly found in favor of the plaintiff. Specifically, the defendants claim that the court improperly concluded that § 12 (a) (i) of the parties’ partnership agreement (1) is unenforceable and (2) does not provide that a majority of the parties can terminate another partner without cause.

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual communications is a question of law .... subject to plenary review by this court.” (Citations omitted; internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000). “In giving meaning to the terms of a contract, the court should construe the agreement as a whole, and its relevant provisions are to be considered together. . . . The contract must be construed to give effect to the intent of the contracting parties. . . . This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained. . . . [Ijntent . . . is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” (Internal quotation marks omitted.) Phillips v. Phillips, 101 Conn. App. 65, 74, 922 A.2d 1100 (2007). “[Where] . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. ... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard.” (Internal quotation marks omitted.) Wolosoff v. Wolosoff, 91 Conn. App. 374, 381, 880 A.2d 977 (2005). Whether a contract is ambiguous is a question of law subject to plenary review. See Enviro Express, Inc. v. AIU Ins. Co., 279 Conn. 194, 200, 901 A.2d 666 (2006). Therefore, our review is plenary.

I

The defendants first claim that the court improperly concluded that § 12 (a) (i) of the parties’ partnership agreement is unenforceable. The court concluded that § 12 (a) (i) is unenforceable because “no reasonable, educated person would sign an agreement whereby they could be stripped of their equitable interest in a business without a reasonable basis. Simply put, it is something a reasonably prudent person would not do.” The defendants maintain that the court “ignores and contradicts well established Connecticut law” because Connecticut has a strong public policy favoring freedom of contract.

There is a strong public policy in Connecticut favoring freedom of contract: “It is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree. This freedom includes the right to contract for the assumption of known or unknown hazards and risks that may arise as a consequence of the execution of the contract. Accordingly, in private disputes, a court must enforce the contract as drafted by the parties and may not relieve a contracting party from anticipated or actual difficulties undertaken pursuant to the contract, unless the contract is voidable on grounds such as mistake, fraud or unconscionability.” (Emphasis added.) Holly Hill Holdings v. Lowman, 226 Conn. 748, 755-56, 628 A.2d 1298 (1993); see 1 Restatement (Second), Contracts §§ 154,159 (1981); 2 Restatement (Second), Contracts § 208 (1981). If a contract violates public policy, this would be a ground to not enforce the contract. Stamford Wrecking Co. v. United Stone America, Inc., 99 Conn. App. 1, 16, 912 A.2d 1044, cert. denied, 281 Conn. 917, 917 A.2d 999 (2007). A contract, or in this instance, a partnership agreement, however, does not violate public policy just because the contract was made unwisely. Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 505-506. “[C]ourts do not unmake bargains unwisely made. Absent other infirmities, bargains moved on calculated considerations, and whether provident or improvident, are entitled nevertheless to sanctions of the law. . . . Although parties might prefer to have the court decide the plain effect of their contract contrary to the agreement, it is not within its power to make a new and different agreement; contracts voluntarily and fairly made should be held valid and enforced in the courts.'" (Emphasis in original.) Id. Moreover, our Supreme Court has opined: “A provision of a partnership agreement does not violate public policy simply because it is susceptible of an application that is advantageous to one partner and disadvantageous to another.” Konover Development Corp. v. Zeller, 228 Conn. 206, 231, 635 A.2d 798 (1994).

In the present case, it is clear that the provision in § 12 (a) (i) does not violate public policy and is enforceable. This provision was entered into by sophisticated and highly educated professionals. Additionally, during the partnership agreement negotiations, both the plaintiff and Munk were represented by the same lawyer. Furthermore, § 34-362, under which the plaintiff sought relief, expressly contemplates that a partner may be “dissociated” from a partnership without resulting in a dissolution of the partnership.

Moreover, this provision, which the defendants argue is an involuntary termination clause, does not favor one partner over another because the majority of the parties voted to terminate the plaintiffs association with the partnership. If the circumstances were different, the plaintiff would have been able to rely on the same provision to terminate one of the other partners. Thus, this provision is not against public policy just because in the present case it was a disadvantage to the plaintiff. See Konover Development Corp. v. Zeller, supra, 228 Conn. 231. Therefore, § 12 (a) (i) is enforceable.

II

The defendants next claim that the court improperly concluded that § 12 (a) (i) of the parties’ partnership agreement does not provide that a majority of the partners can terminate another partner without cause. The defendants maintain that, as the provision is written, the language refers to “termination resulting from any possible circumstance, excluding death or total disability, except as otherwise modified by another provision in the agreement.” In opposition, the plaintiff argues that this provision is not a termination without cause provision; rather, it provides only the right of any partner to withdraw from the practice and voluntarily terminate his association in the event that a partner moved or relocated or for some other reason decided to terminate his association with the partnership. We disagree with the plaintiffs assertion.

“A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in the contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 498.

The defendants assert that the language in § 12 (a) (i) is clear and unambiguous and permits the partners to terminate another partner without cause. Under § 12 (a) (i), “[i]n the event that any [p]artner’s association with the [p]artnership is terminated for any reason other than death or total disability, either party shall give the other not less than ninety (90) days written notice . . . .” (Emphasis added.) The defendants argue that if the parties intended that § 12 (a) (i) would refer only to voluntary termination, they could have stated such intent. The defendants also refer to § 9 (a), which provides that “[a]ll decisions concerning the conduct of the [p] artnership business shall be made by a majority of the [p] artnership shares, except as otherwise expressly agreed to by the [p]artners.”

The language of § 12 (a) (i), specifically, that either party shall give the other ninety days notice, clearly indicates that this provision does not simply apply to voluntary withdrawal. The term used in the provision, “either party,” evidences the intent of the parties that this provision be a termination without cause provision. Furthermore, § 12 (a) (i) coupled with § 9 (a) permits the very action taken by the defendants: the majority of shares acting to terminate a partner without cause. Most significantly, the plaintiff himself testified that § 12 (a) (i) permitted termination for reasons other than death, disability and termination for cause. Thus, we conclude that the provision is enforceable and that it permits the termination of the plaintiffs association with the partnership in the manner taken by the defendants. Accordingly, we disagree with the conclusion of the trial court.

The judgment of the trial court is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges occurred.

       Gerald Epstein is now deceased.

       General Statutes § 34-339 provides: “(a) A partnership may maintain an action against, a partner for a breach of the partnership agreement, or for the violation of a duty to the partnership, causing harm to the partnership.
      “(b) A partner may maintain an action against the partnership or another partner for legal or equitable relief, with or without an accounting as to partnership business, to:
      “(1) Enforce the partner’s rights under the partnership agreement;
      “(2) Enforce the partner’s rights under sections 34-300 to 34-399, inclusive, including: (A) The partner’s rights under section 34-335, 34-336 or 34-337; (B) the partner’s right on dissociation to have the partner’s interest in the partnership purchased pursuant to section 34-362 or enforce any other right under sections 34-355 to 34-357, inclusive, or sections 34-362 to 34-366, inclusive; or (C) the partner’s right to compel a dissolution and winding up of the partnership business under section 34-372 or enforce any other right under sections 34-372 to 34-378, inclusive; or
      “(3) Enforce the rights and otherwise protect the interests of the partner, including rights and interests arising independently of the partnership relationship.
      “(c) The accrual of, and any time limitation on, a right of action for a remedy under this section is governed by other law. A right to an accounting upon a dissolution and winding up does not revive a claim barred by law.”

       General Statutes § 34-362 (b) provides: “The buyout price of a dissociated partner’s interest is the amount that would have been distributable to the dissociating partner under subsection (b) of section 34-378 if, on the date of dissociation, the assets of the partnership were sold at a price equal to the greater of the liquidation value or the value based on a sale of the entire business as a going concern without the dissociated partner and the partnership were wound up as of that date. Interest must be paid from the date of dissociation to the date of payment.”

       The parties, prior to trial, entered into an agreement to withdraw the remaining nine claims. The parties later memorialized that agreement in a written stipulation agreement dated January 8, 2007.

       Section 12 of the partnership agreement is entitled: “Other withdrawal from practice.” Section 12 (a) (i) states: “In the event that any [pjartner’s association with the [partnership is terminated for any reason other than death or total disability, either party shall give the other not less than ninety (90) days written notice of such termination and the [p]artnership shall have the first option to retire the interest of the departing [p]artner by paying the departing [p]artner deferred compensation at the ‘[formula [a]mount.’ ” (Emphasis added.)

       In opposition, the plaintiff maintains that the defendants’ claim must fail because it “unfairly dissects and magnifies one word, [unenforceable], out of a twelve page memorandum of decision. The trial court’s memorandum of decision, when read in its entirety, sets forth . . . that the court properly found that the defendants could not strip the plaintiff of his partnership interests and income without a reasonable basis.” In their reply brief, the defendants argue that the plaintiff “seeks to import ambiguity where there is none by arguing that despite the trial court’s statement that § 12 (a) (i) of the agreement is ‘unenforceable,’ the court did not really mean it would not enforce this provision.” The defendants assert that the plaintiff’s argument is unpersuasive because the “term ‘unenforceable’ is a commonly understood term and requires no clarification.”

       “Although it is well established that parties are free to contract for whatever terms on which they may agree ... it is equally well established that contracts that violate public policy are unenforceable. . . . [T]he question [of] whether a contract is against public policy is [a] question of law dependent on the circumstances of the particular case, over which an appellate court has unlimited review.” (Internal quotation marks omitted.) Stamford Wrecking Co. v. United Stone America, Inc., 99 Conn. App. 1, 16, 912 A.2d 1044, cert. denied, 281 Conn. 917, 917 A.2d 999 (2007).

       See footnote 3.

       The plaintiff maintains that the defendants’ reading of § 12 (a) (i) as a termination without cause provision is “unreasonable under the totality of the terms of the agreement. The partners were interested in creating a partnership for a term of years, until 2051. ... As shown by the provisions of the agreement, the parties intended to make this a long-term investment and did not intend in making this agreement to allow their other partners to be able to arbitrarily strip them of their interest in the partnership.” (Citations omitted.) With this in mind, a reading of the partnership agreement as a whole, specifically, § 12, indicates that the parties made a termination without cause provision. The clear unambiguous language used does not permit a court to import ambiguity where there is none. Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 498.

       The defendants also assert that this provision makes sense in light of the other provision in the agreement, specifically, § 12 (e) of the agreement, which, as the defendants argue, is modified to allow for a termination for cause.
      Section 12 (e) of the partnership agreement states as follows: “In the event that the termination hereunder is termination for cause, no prior notice shall be required and termination shall be considered immediate. Termination for cause shall be considered immediate. Termination for cause shall include, but not be limited to:
      “(1) A [p]artner’s loss of the right to practice dentistry;
      “(2) A [p]artner’s willful destruction of the [p]artnership property;
      “(3) A [p]artner’s conviction of a crime involving moral turpitude;
      “(4) A [p]artner’s breach of this [agreement or otherwise engaging in conduct harmful to the business of the [p]artnership.”

       The plaintiff argues that the intent of the parties should be taken from a reading of the partnership agreement in its entirety. With this in mind, a reading of the entire partnership agreement, particularly § 12, clearly evidences that § 12 (a) (i) contemplated termination of partners from the partnership without cause.

       The following occurred when the plaintiff was cross-examined:
      “Q. And if you go over to the next page [of the partnership agreement], there’s § 12 (e). It says that ‘in the event that the termination hereunder is termination for cause, no prior notice shall be required and termination shall be considered as immediate.’ Did you see that?
      “A. Yes.
      “Q. Is it fair to say it’s your understanding that if one of these cause events occurred no notice would need to be given and that someone would be terminated immediately?
      “A. Correct.
      “Q. Okay. And as for death and disability, § 11, which begins on page six, would seem to deal with what happens if someone dies or is disabled, right?
      “A. Correct; okay.
      “Q. Okay. So, that § 12 (a) is—which requires a ninety day written notice—
      “A. Mum-humm.
      “Q.—period would be limited to circumstances other than death, disability and termination for cause.
      “A. Correct.”

       Our Supreme Court recently enforced a contract provision that specifically permitted “without cause” termination of a physician from his health maintenance organization network of health care providers. The court found that “the trial court correctly determined that the defendant properly terminated the plaintiffs membership pursuant to the agreement’s without cause provision. This provision is plain and unambiguous, and permits the defendant to terminate the agreement upon [ninety] days’ written notice for any reason . . . .” (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 14, 938 A.2d 578 (2008).


author: PER CURIAM.

text:
    BOBBY PETERSON v. COMMISSIONER OF CORRECTION
    (AC 28154)
    Harper, Lavine and Pellegrino, Js.
    Argued February 4
    officially released April 8, 2008

      Laljeebhai R. Patel, special public defender, for the appellant (petitioner).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anne F. Mahoney, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Bobby Peterson, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that his habeas counsel did not provide ineffective assistance. We affirm the judgment of the habeas court.

The following procedural history is relevant to the issues on appeal. The petitioner was arrested on May 5,1990, and charged in four separate informations with numerous sexual assaults. During the course of his criminal trial, after one of his victims had testified, the petitioner entered a plea of nolo contendere to two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) and fourteen counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). The petitioner was sentenced to fifty years in prison, suspended after thirty-eight years, with five years of probation. The petitioner did not file a direct appeal but filed a petition for a writ of habeas corpus in 1996, in which he alleged the ineffective assistance of trial counsel. The court, W. Sullivan, J., denied the petition, and this court upheld the judgment. See Peterson v. Commissioner of Correction, 51 Conn. App. 903, 723 A.2d 363 (1998). The petitioner filed another petition for a writ of habeas corpus and filed the present amended petition in July, 2005, in which he again alleged the ineffective assistance of trial counsel and the ineffective assistance of habeas counsel. The court, Hon. Frank S. Meadow, judge trial referee, dismissed the first count of the petition alleging ineffective assistance of trial counsel as a successive petition and an abuse of the writ of habeas corpus. The second count, alleging ineffective assistance of habeas counsel, was tried to the court, Hon. Anthony V. DeMayo, judge trial referee, who denied the petition but granted the petition for certification to appeal.

The Strickland-Hill standard is the appellate standard of review for ineffective assistance of counsel claims that result in guilty pleas. “In Strickland v. Washington, 466 U.S. 668, [687] 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable.” (Internal quotation marks omitted.) Henderson v. Commissioner of Correction, 104 Conn. App. 557, 571, 935 A.2d 162 (2007), cert. denied, 285 Conn. 911, 935 A.2d 1089 (2008).

“In the usual ineffective assistance of counsel case, a habeas petitioner must show that his counsel was ineffective and such ineffectiveness prejudiced the petitioner in that but for the ineffective assistance there would have been no conviction. . . . That standard has been modified for ineffectiveness claims that result from guilty pleas. See Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). In such cases, to satisfy the prejudice requirement, the [petitioner] must show that there is a reasonable probability that, but for counsel’s errors he would not have pleaded guilty and would have insisted on going to trial.” (Citation omitted; internal quotation marks omitted.) Pagan v. Commissioner of Correction, 104 Conn. App. 531, 533, 935 A.2d 175 (2007).

On the basis of our review of the extensive record, the court’s memorandum of decision and the briefs of the parties, we conclude that Judge DeMayo properly denied the petitioner’s amended petition for a writ of habeas corpus.

The judgment is affirmed.

       The judgment of dismissal as to count one is not at issue in this appeal.

       In his memorandum of decision as to the claim of ineffective assistance of habeas counsel, Judge DeMayo found that the claims against trial counsel were not substantiated and that habeas counsel could not be faulted for failing to develop a claim against trial counsel. The court stated: “In substance, if trial counsel were not ineffective, habeas counsel’s efforts were of no moment.”


text:
    MICHAEL JOHNSON v. COMMISSIONER OF CORRECTION
    (AC 27093)
    Bishop, Gruendel and Harper, Js.
    Argued February 11
    officially released April 8, 2008

      Kevin E. Dehghani, special public defender, for the appellant (petitioner).

      AdamE. Mattei, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Michael Johnson, appeals following the denial of his petition for certification to appeal from the judgment dismissing his petition for a writ of habeas corpus. We dismiss the appeal.

The petitioner was involved in a shooting incident on July 29, 1995. He thereafter was charged in two separate informations with murder in violation of General Statutes § 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), attempt to commit robbery in the first degree in violation of General Statutes § § 53a-134 (a) (2) and 53a-49 and possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (b). On December 21, 1995, the trial court held a probable cause hearing, at the conclusion of which it found probable cause to believe that the petitioner had committed murder. The petitioner subsequently pleaded guilty to all charges pursuant to the Alford doctrine. After a thorough canvass, the court accepted the pleas and sentenced the petitioner to a total effective term of twenty-five years incarceration.

Approximately ten years later, this habeas action followed. In his amended petition for a writ of habeas corpus, the petitioner alleged thirteen grounds of ineffective assistance of trial counsel. Following a trial, the habeas court concluded that the petitioner had not satisfied his burden of proving deficient performance on the part of his counsel. See Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Johnson v. Commissioner of Correction, 218 Conn. 403, 424, 589 A.2d 1214 (1991). Moreover, the habeas court agreed with the trial court that the petitioner’s pleas were intelligent and voluntary. Accordingly, it dismissed the petition for a writ of habeas corpus. The court subsequently denied the petition for certification to appeal.

On our careful review of the record, including the trial court’s plea canvass of the petitioner and the briefs of the parties, we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal. We cannot conclude that the issues presented in this appeal 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. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The appeal is dismissed.

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

       Specifically, the petitioner alleged in the amended petition that his trial counsel failed to (1) conduct an adequate investigation; (2) obtain witness statements and interview witnesses; (3) investigate and inform him that Todd Gently, who bought marijuana from the petitioner in the July, 1995 shooting incident, originally identified the petitioner’s brother as the shooter; (4) investigate and inform him that a fingerprint on the murder weapon was that of the petitioner’s brother; (5) inform him of the amount of prison time that his plea required; (6) inform him that pleading guilty to the murder charge foreclosed his eligibility for parole; (7) negotiate a more favorable plea bargain; (8) advise him of options other than plea bargaining; (9) advise him of his pleas’ implications on appellate review; (10) advise him of the likelihood that a court would impose the maximum sentence after a guilty verdict; (11) advise him that pleading guilty barred him from sentence review; (12) inform him that pleading guilty precluded appellate review; and (13) advise him of the procedure for withdrawing his plea


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. BENJAMIN BOSQUE
    (AC 27511)
    Bishop, Graendel and Beach, Js.
    Argued February 4
    officially released April 8, 2008

      Daniel J. Krisch, special public defender, with whom were Brendon P. Levesque and, on the brief, Sumy Rhee, legal intern, for the appellant (defendant).

      AdamE. Mattei, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Joseph T. Corradino, senior assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Benjamin Bosque, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4), burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and four counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). On appeal, the defendant claims that the trial court committed plain error when it instructed the jury on accomplice testimony. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the early morning of November 5, 2004, the defendant; his brother, Fernando Bosque; and Roberto Figueroa invaded a Bridgeport apartment, a residence shared by four college students. A friend of one of the students was visiting as well. The defendant rang the doorbell, and when one of the students answered the door, the defendant put a gun to his head and pushed him inside. Fernando Bosque and Figueroa followed the defendant into the apartment. At gunpoint, the defendant and his accomplices forced the students into one room, threatening and physically assaulting them. The defendant and his accomplices ransacked the apartment for valuables, taking items such as home electronics, jewelry, cellular telephones, cash and automated teller machine cards. The intruders also forced the students to reveal the personal identification numbers associated with their automated teller machine cards. During the home invasion, the defendant sexually assaulted one of the students. After leaving the apartment, the defendant and his accomplices took the stolen items to the home of the defendant’s mother and proceeded to a bank where they withdrew money from the students’ bank accounts.

The defendant eventually was arrested and charged with several offenses. He was tried before the jury and found guilty. The defendant was sentenced to a term of sixty years imprisonment, execution suspended after forty years, and thirty-five years of probation. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the defendant claims that the court committed plain error when it instructed the jury on accomplice testimony. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . The conditions of character and interest most inconsistent with a credible witness, very frequently, but not always, attend an accomplice when he [or she] testifies. When those conditions exist, it is the duty of the judge to specially caution the jury .... In reviewing a challenge to a portion of the jury instructions, the proper test is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Marra, 222 Conn. 506, 525-26, 610 A.2d 1113 (1992).

At trial, Figueroa, one of the defendant’s accomplices, testified against the defendant in accordance with a plea agreement with the state. The plea agreement promised favorable treatment in exchange for Figueroa’s testimony against the defendant. At the time Figueroa testified, he had not yet been sentenced. Regarding accomplice testimony, the court instructed the jury as follows: “In weighing the testimony of an accomplice who is a self-confessed criminal, you must consider that fact. All else being equal, it may be that you would not believe a person who committed a crime such as this involving moral wrong as readily as you would believe a person of good character. The amount of moral wrong involved in the participation of a witness of a crime should be weighed and in weighing the testimony of an accomplice who has not yet been sentenced, you should keep in mind that he may in his own mind be looking for or hoping for some favorable treatment in the sentence and disposition of his own case, and, therefore, he may have such an interest in the outcome of this case so that his testimony may have been colored by that fact. ... On the other hand, there are many offenses that are of such a character that only persons capable of giving useful testimony are those who are themselves in the crime. Each accomplice's testimony is an admission by him against his own natural interest in not incriminating himself, and, therefore, it may itself be evidence of his . . . testimony’s reliability. It is up to you, the jury, to decide what credibility you wish to give to a witness who has admitted his involvement in the criminal wrongdoing.” (Emphasis added.)

The defendant argues that by first admonishing the jury as to the caution with which it should weigh an accomplice’s testimony and by then telling the jury that each accomplice’s admission is an admission against his own natural interest not to incriminate himself such that his testimony may be reliable, the court improperly bolstered Figueroa’s credibility and rendered its cautionary instruction meaningless, thereby confusing the jury. The defendant contends that this claimed impropriety by the court rose to the level of plain error.

Our review of the defendant’s claim is controlled by the decision of our Supreme Court in State v. Marra, supra, 222 Conn. 506. In Marra, the defendant and two of his associates were involved in the murder of the victim. The victim’s body was never found, and the only evidence connecting the defendant to the murder came from the testimony of the defendant’s accomplices. The court instructed the jury on accomplice testimony, and the defendant objected to the very same portion of the instruction that is the subject of this appeal. The Marra court found that “[i]n its charge the court explicitly cautioned the jury that the testimony of the accomplice witnesses may have been colored by their potentially compelling interests in seeking favorable treatment for themselves from the state. Although the challenged portion of the trial court’s accomplice instructions may have been inappropriate under the circumstances of this case, we conclude that it did not so dilute the overall instructions so as to result in any injustice to the defendant and did not constitute plain error.” Id., 526.

In the present case, the circumstances of which are similar to the circumstances of Marra, the court gave virtually the same accomplice testimony instruction to the jury. Although the section of the challenged jury instruction may have been inappropriate, an examination of the totality of the court’s instruction reveals that the charge extensively cautioned the jurors to consider the potential motivations and biases of accomplice testimony such that it did not result in any injustice to the defendant and did not constitute plain error.

The judgment is affirmed.

In this opinion the other judges concurred.

      In addition, pursuant to the conviction of sexual assault, the court ordered the defendant to submit a DNA sample and register as a sex offender.

       Our Supreme Court has consistently held that “where it is warranted by the evidence, it is the court’s duty to caution the jury to scrutinize carefully the testimony if the jury finds that the witness intentionally assisted in the commission, or if he assisted or aided or abetted in the commission, of the offense with which the defendant is charged.” (Emphasis in original; internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 562, 747 A.2d 487 (2000).

       The defendant also argues that there are compelling reasons to omit this language from an accomplice testimony instruction, namely, because Figueroa, like many accomplices who testily against a fellow accomplice, did so pursuant to a plea agreement that promised him favorable treatment. Therefore, it was actually in Figueroa’s “natural interest” to incriminate himself in order to secure the favorable treatment that he had been promised. Because this case is controlled by State v. Marra, supra, 222 Conn. 506, we need not address this argument. Even if it can be said that it was in Figueroa’s natural interest to incriminate himself, such that the court’s instruction was inappropriate, it does not rise to the level of plain error because, as a whole, the court extensively cautioned the jury that an accomplice’s testimony may be motivated by the promise of future favorable treatment in the accomplice’s favor.


author: DiPENTIMA, J.

text:
    SALLY A. CROALL, ADMINISTRATRIX (ESTATE OF KARL B. KOHLER) v. KARL S. KOHLER
    (AC 27643)
    DiPentima, McLachlan and Gruendel, Js.

      Argued January 22
    officially released April 8, 2008

      William J. Nulsen, for the appellant (plaintiff).

      William V. Gambardella, for the appellee (defendant).
   Opinion

DiPENTIMA, J.

The plaintiff, Sally A. Croall, administratrix of the estate of Karl B. Kohler, appeals from the judgment of the trial court awarding the defendant, Karl S. Kohler, a setoff against its judgment in favor of the plaintiff. Specifically, the plaintiff claims that there was insufficient evidence to support the court’s determination of the amount of the setoff. We affirm the judgment of the trial court.

The following facts are undisputed. The decedent, Karl B. Kohler, had six children, including the parties to this litigation. In 1996, while residing in Madison, the decedent was diagnosed with dementia and, sometime thereafter, with Alzheimer’s disease. The decedent’s health deteriorated following his diagnoses, and the defendant assumed the responsibility of caring for him, which gradually increased in correlation with the decedent’s needs. During the two years following his father’s diagnoses, the defendant eventually visited his father on a daily basis, taking him to doctor’s appointments, taking him shopping, maintaining his house and paying his bills. As a result of his attention to his father’s needs, the defendant suffered setbacks in his career and lost substantial income. Finally, in September, 1998, the defendant, with the assistance of his siblings, moved his father from his home in Madison to an assisted living facility and acquired a power of attorney to conduct his father’s personal affairs. Pursuant to the power of attorney, the defendant used his expertise as a financial services professional to distribute some of his father’s assets to other family members in order to minimize certain tax consequences. The defendant also appropriated for his use $106,000 as compensation and reimbursement for the services that he had rendered for his father. The decedent died testate on July 26, 2000, leaving his estate to his six adult children in equal shares.

On February 5, 2004, the plaintiff filed a complaint seeking, inter alia, reimbursement to the decedent’s estate for the money that the defendant had “unlawfully appropriated” for his personal use. At a hearing on March 31,2006, the parties stipulated that the defendant had used $106,000 of his father’s assets for the defendant’s benefit and that, as a setoff to the plaintiffs claim, the defendant was entitled to keep as compensation the value of the services that he had rendered to his father from 1996 until his death in 2000. On April 10, 2006, the court issued a memorandum of decision rendering judgment in favor of the plaintiff but reducing her claim of $106,000 by awarding certain setoffs to the defendant. Specifically, the court awarded $500 per month as compensation for the year 1996, $1000 per month as compensation for the year 1997, $2000 per month as compensation for the first nine months of 1998 and $7500 as reimbursement for costs incurred to store the decedent’s personal effects, for a total setoff of $43,500. Accordingly, the court rendered judgment in favor of the plaintiff in the amount of $62,500. This appeal followed.

The plaintiff claims that there was no evidence produced at the hearing to support the court’s calculation of the setoff. We disagree.

We first set forth our standard of review for a claim of this nature. “In Connecticut, a setoff may be legal or equitable in nature. . . . When the statutes governing legal setoff do not apply, a party may be entitled to equitable setoff, nonetheless, only to enforce the simple but clear natural equity in a given case.” (Citations omitted; internal quotation marks omitted.) OCI Mortgage Corp. v. Marchese, 255 Conn. 448, 463-64, 774 A.2d 940 (2001). In this case, there is no statute governing the defendant’s claim for a setoff. The defendant, therefore, claims an equitable setoff.

We will reverse atrial court’s exercise of its equitable powers “only if it appears that the trial court’s decision is unreasonable or creates an injustice. . . . [Equitable power must be exercised equitably . . . [but] [t]he determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Winters, 225 Conn. 146, 161-62, 622 A.2d 536 (1993). “In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) Franklin Credit Management Corp. v. Nicholas, 73 Conn. App. 830, 838, 812 A.2d 51 (2002), cert. denied, 262 Conn. 937, 815 A.2d 136 (2003). “An equitable award may be found to be error only if it is based on factual findings that are clearly erroneous . . . .” (Citations omitted; internal quotation marks omitted.) Colonial Bank & Trust Co. v. Matoff, 18 Conn. App. 20, 30, 556 A.2d 619 (1989).

The plaintiff argues that the court received no evidence to support its finding that the value of the services rendered by the defendant was as set forth in the memorandum of decision. Our review of the record, however, reveals that during the hearing, several family members of the decedent, including the parties, testified regarding the nature and extent of the services rendered by the defendant. Three witnesses, including the defendant, the defendant’s brother and the decedent’s sister, gave uncontroverted testimony that the value of the services rendered by the defendant equaled or exceeded $106,000. The court could have credited this testimony and awarded the defendant a setoff in the entire amount of the plaintiffs claim. We are not convinced that, in light of such testimony, the court’s award of a lesser amount is unreasonable or creates an injustice, regardless of how it calculated that lesser amount. Accordingly, we cannot conclude that the court’s findings with respect to the value of the defendant’s services were clearly erroneous or that the court abused its discretion by awarding a setoff in the amount of $36,000 as compensation for the services rendered to the decedent.

The judgment is affirmed.

In this opinion the other judges concurred.

       In his brief, the defendant claims that he was entitled to a greater setoff than the court awarded him. Because the defendant failed to file a cross appeal in this matter, however, we decline to review his claim. See Practice Book § 61-8; Statewide Grievance Committee v. Burton, 88 Conn. App. 523, 524 n.2, 871 A.2d 380 (2005), aff'd, 282 Conn. 1, 917 A.2d 966 (2007).

       The plaintiff challenges both the $36,000 awarded by the court as compensation and the $7500 awarded by the court as reimbursement. The plaintiff, however, failed to brief her claim with respect to the $7500 reimbursement. Accordingly, the plaintiff has abandoned that claim. See Rosier v. Rosier, 103 Conn. App. 338, 340 n.2, 928 A.2d 1228, cert. denied, 284 Conn. 932, 934 A2d 247 (2007).


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. GILBERT I.

    (AC 28134)
    Flynn, C. J., and Bishop and Beach, Js.

      Argued January 22
    officially released April 8, 2008

      Joseph Visone, special public defender, for the appellant (defendant).

      Kathryn Ward Bare, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Catherine Brannelly Austin, senior assistant state’s attorney, for the appellee (state).

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

   Opinion

BEACH, J.

The defendant, Gilbert L, appeals from the judgment of conviction, rendered following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), and risk of injury to a child in violation of General Statutes §§ 53-21 (a) (1) and (2). On appeal, the defendant claims that (1) the trial court improperly admitted opinion testimony by the state’s expert witness, (2) the court improperly permitted the state to introduce evidence of the defendant’s prior misconduct and (3) he was deprived of a fair trial as a result of prosecutorial impropriety. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. While the victim was approximately eight and nine years old, she periodically was sexually assaulted in her home by her former stepfather, the defendant. According to the victim’s testimony, she was assaulted on multiple occasions during this period.

The victim did not tell anybody about the assaults until she was approximately fourteen years old, at which point she told her stepmother, her father and her mother. The victim also provided a written statement to the Waterbury police department. The defendant was arrested shortly thereafter and charged with sexual assault in the first degree and risk of injury to a child.

The defendant’s case was tried to the jury in June, 2006. Following a guilty verdict by the juiy on all counts charged, the defendant was sentenced on August 25, 2006, to a total effective term of twenty-five years incarceration and ten years probation. This appeal followed.

I

The defendant first claims that his “right to confront the witnesses against him was violated when the state’s expert witness was allowed to testify beyond the permissible scope of testimony normally allowed for experts.” Specifically, the defendant challenges the court’s admission of hearsay testimony in the form of “unnamed statistical studies of delayed reporting of abuse [and] anecdotal evidence” provided by the state’s sexual abuse expert, Diane Edell. We do not agree.

The defendant did not preserve his claim at trial but seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The record is adequate for review, but the defendant’s claim, fails under the second prong of Golding because the claimed error is evidentiary in nature and is not of constitutional magnitude.

“It is well established that every evidentiary ruling that denies a defendant a line of inquiry is not a violation of his constitutional rights. The defendant’s right to confront witnesses against him is not absolute, but must bow to other legitimate interests in the criminal trial process. . . . Accordingly, [t]he defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right. . . . Thus, [o]nce identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed. . . . We previously have stated that the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” (Citations omitted; internal quotation marks omitted.) State v. Gerald W., 103 Conn. App. 784, 797-98, 931 A.2d 383, cert. denied, 284 Conn. 933, 935 A.2d 152 (2007); see also State v. Kulmac, 230 Conn. 43, 55, 644 A.2d 887 (1994).

The essence of the defendant’s argument is that without proper examination of Edell concerning her reliance on outside sources cited in her testimony, Edell’s testimony was impermissible hearsay in violation of the confrontation clause. The concerns of the defendant, however, namely, the trustworthiness and reliability of the testimony, are addressed by the rules of evidence concerning expert testimony rather than the confrontation clause. See George v. Ericson, 250 Conn. 312, 321, 736 A.2d 889 (1999) (“an expert’s opinion is not rendered inadmissible merely because the opinion is based on inadmissible hearsay, so long as the opinion is based on trustworthy information and the expert had sufficient experience to evaluate that information so as to come to a conclusion which the trial court might well hold worthy of consideration by the jury” [internal quotation marks omitted]); see also Conn. Code Evid. § 7-4. Experts commonly rely on statistical studies and other sources. As stated in In re Barbara J., 215 Conn. 31, 574 A.2d 203 (1990), “[w]hen the expert witness has consulted numerous sources, and uses that information, together with his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise.” (Internal quotation marks omitted.) Id., 43.

Furthermore, the defendant had the opportunity to cross-examine Edell as to her reliance on the outside sources but did not do so. See State v. Singh, 59 Conn. App. 638, 652, 757 A.2d 1175 (2000) (“reliance on information provided by others does not violate the confrontation clause where the expert is available for cross-examination concerning the nature and reasonableness of his reliance”), rev’d on other grounds, 259 Conn. 693, 793 A.2d 226 (2002). Simply put, outside sources are used to show the basis of the expert’s opinion rather than for extrinsic substantive proof. See George v. Ericson, supra, 250 Conn. 324-25. Because the court’s admission of Edell’s expert testimony did not implicate a fundamental constitutional right, we decline to review the defendant’s unpreserved evidentiary claim.

II

The defendant next claims that the court improperly permitted the state to introduce evidence of his prior misconduct. Specifically, the defendant claims that he was prejudiced by the victim’s testimony referencing his prior misconduct with the victim’s baby-sitter.

The defendant did not preserve his evidentiary claim for our review. Our review of the record discloses that the defendant did not raise a specific prior misconduct objection to any part of the victim’s testimony but, rather, objected to the testimony in question as “nonresponsive.” “Appellate review of evidentiary rulings is limited to the specific legal ground raised by the objection of counsel at trial. ... A specific objection is necessary to alert the trial court to purported error while there is time to correct it without ordering a retrial and to permit the opposing party to argue against the objection at trial.” (Citations omitted.) State v. Goodrum, 39 Conn. App. 526, 543, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995); see also United Technologies Corp. v. East Windsor, 262 Conn. 11, 30, 807 A.2d 955 (2002). The defendant does not assert that he is entitled to any extraordinary means of review of his unpreserved evidentiary claim, and we will not afford it review.

We also note that even if we were to afford review of the defendant’s claim, it would not help the defendant. The testimony to which he takes exception, specifically that “[the defendant] did something and mom kicked [the baby-sitter] out,” perhaps could lead to vague speculation but is not a clear expression of prior misconduct on the part of the defendant. (Emphasis added.) See, e.g., State v. Boykin, 74 Conn. App. 679, 687, 813 A.2d 143 (“[s]imply stated, the remark’s lack of specificity leads us to conclude that the remark did not unfairly prejudice the defendant in the eyes of the jury”), cert. denied, 263 Conn. 901, 819 A.2d 837 (2003).

Ill

The defendant last claims that he was deprived of a fair trial as a result of prosecutorial impropriety, namely, that he “was prejudiced by the state’s closing argument, which shows a pattern of pandering to the emotions and sympathies of the jury.” We are not persuaded.

Before we examine the challenged remarks, we set forth our standard of review. “Prosecutorial [impropriety] claims invoke a two step analysis. First, the reviewing court must determine whether the challenged conduct did, in fact, constitute [an impropriety]. Second, if [an impropriety] occurred, the reviewing court must then determine if the defendant has demonstrated substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the [impropriety] so infected the trial with unfairness as to make the conviction a denial of due process.” (Citation omitted; internal quotation marks omitted.) State v. Pedro S., 87 Conn. App. 183, 187, 865 A.2d 1177, cert. denied, 273 Conn. 924, 871 A.2d 1033 (2005).

“Because the claimed prosecutorial [impropriety] occurred during closing arguments, we advance the following legal principles. [P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [an impropriety] has occurred, the reviewing court must give due deference to the fact that [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) State v. Farr, 98 Conn. App. 93, 106, 908 A.2d 556 (2006).

As noted, the first step in our analysis is to determine whether any of these statements were improper. In his brief, the defendant cites several statements made by the prosecutor in closing argument that he claims were appeals to the emotions and sympathy of the jury, such as, “[r]emember when they’re first bom,” and, “[y]ou held that little baby in your arms, and before you [knew] it, that little baby was out of your arms, and that little baby was grabbing on to your ankles, and they’re trying to crawl up your legs to be able to walk with you.” The state argues that the comments in question, “when read in context, did nothing more than speak to the jurors’ common sense and everyday life experiences with children.” We conclude that there was no impropriety on the part of the prosecutor.

Although a prosecutor may not appeal excessively and gratuitously to the emotions of the jury; State v. Warholic, 278 Conn. 354, 376, 897 A.2d 569 (2006); he or she may properly appeal to a jury’s common sense and everyday experience. Id., 365. Here, the state’s closing argument appealed to the common sense notion that children mature quickly, and that, consequently, the jury should keep in mind the age and experience of the victim at the time the abuse occurred, as opposed to her appearance and maturity level at trial almost eight years later. Although the prosecutor’s emphasis on that point could have been delivered more succinctly, we recognize that “[t]he occasional use of rhetorical devices is simply fair argument.” (Internal quotation marks omitted.) State v. Schiavo, 93 Conn. App. 290, 304, 888 A.2d 1115, cert. denied, 277 Conn. 923, 895 A.2d 797 (2006); see also State v. Williams, 102 Conn. App. 168, 190-93, 926 A.2d 7, cert. denied, 284 Conn. 906, 931 A.2d 267 (2007); State v. Chasse, 51 Conn. App. 345, 361, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). Accordingly, we conclude that the prosecutor’s closing arguments were not improper, and, therefore, could not have prejudiced the defendant and deprived him of his right to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the conduct that gave rise to the risk of injury charges allegedly occurred between 1999 and 2001. Although General Statutes § 53-21 was amended during that time, there is no dispute that the conduct in which the defendant allegedly had engaged was prohibited under all of the revisions of the statute applicable during that time period. In the interest of simplicity, we refer to the current revision of § 53-21 as the revision of the statute under which the defendant was charged.

       “Under Golding, a defendant may prevail on unpreserved claims only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.” (Internal quotation marks omitted.) State v. Hill, 102 Conn. App. 584, 588 n.3, 925 A.2d 1220, cert. denied, 284 Conn. 914, 931 A.2d 933 (2007).

       The outside sources were statistical studies regarding delayed reporting of sexual abuse claims and a conversation with an employee of Saint Francis Hospital and Medical Center about the frequent lack of physical evidence in sexual abuse claims.

       The following colloquy occurred during the victim’s testimony:
      “[The Prosecutor]: How long did [the baby-sitter] work with you?
      “[The Witness]: Watch us? A couple—like, I think it was a year and a couple months until she and [the defendant] did something and mom kicked her out.
      “[Defense Counsel]: Objection. Nonresponsive.”

       Despite the defendant’s failure to object to these statements at trial, his claim is reviewable in light of State v. Fauci, 282 Conn. 23, 33, 917 A.2d 978 (2007). “Once prosecutorial impropriety has been alleged ... it is unnecessary for a defendant to seek to prevail under State v. Golding, supra, [213 Conn. 239-40] and it is unnecessary for an appellate court to review the defendant’s claim under Golding.” State v. Fauci, supra, 33.

       The excerpt of the closing argument in question is as follows:
      “[The Prosecutor]: Good afternoon, ladies and gentlemen. Have you ever heard the maxim, epjoy your kids while they’re young, they grow up so fast? It didn’t really mean anything until you had kids of your own, until you touched those kids, and then you realized they do grow up fast, and you give—gives you an appreciation to enjoy them.
      “Remember when they’re first bom, you all have children and some of you have nieces and nephews? You held that little baby in your arms, and before you [knew] it, that little baby was out of your arms, and that little baby was grabbing onto your ankles, and they’re trying to crawl up your legs to be able to walk with you. And then they get to be two and three years old, and they’re off on their own. They’re running down store aisles, they’re behind you, they’re in front of you, they’re around you. And then the stage comes when they’re five years old and they’re going off to kindergarten. They’ve got that backpack on their back, the brand new lunch box, and they’re probably just about this high at that time, and maybe you have to stoop down to have your picture taken with them because they’re just that little. And then first grade comes and off they go, their full day of school. Again, the big backpack that’s weighing them back, and they’re maybe about this big at that point, and you send them off for their day by themselves, and that’s your first break with them. And then second and third grade come along, and usually with those grades come soccer, T-ball, Girl Scouts, Brownies, Cub Scouts. They’re still there and they’re still your baby. Fourth grade comes, halfway through their grammar school career. They’re probably about this big. You’re probably letting them all go off to the bus at that time by themselves. Then we have fifth, sixth, seventh grade, they’re hitting middle school. A lot of activities start, we’ve come to that. They’re probably about this big now when they get to those grades. And then they enter high school, and they really think they’re old at that stage, but you know they’re still your baby. And maybe when they’re at high school age, they’re probably level with you at that point, and they’re going off to finish their four years of formal education. Some will be starting their careers at the end of those four years. Other of them might have the opportunity to go on off to college. But that’s what you have. You have those years with your children and then off they go.
      “Now, I want you to just to think about that child, that baby in your arms and that child going off at the end of its high school career, and I want you to take a few steps back because you met [the victim] when she was a freshman in high school, when she was just starting off on that high school career, when [the victim’s] about this tall. But step back in time. On—on September 9,2004, [the victim] was thirteen years old, so she was that much younger when she first talked with her stepmom and dad and her mother about what [the defendant] did to her.”


author: LAVINE, J.

text:
    OSWALL TORRES v. RICHARD S. KUNZE, JR., ET AL.
    (AC 28440)
    Harper, Lavine and Beach, Js.

      Argued January 15
    officially released April 8, 2008

      Sebastian C. Ciarcia, for the appellant (plaintiff).

      Michael T. McCormack, with whom were Elizabeth K. Adams and, on the brief, Natalie G. Noyes, for the appellee (defendant Geico Indemnity Company).
   Opinion

LAVINE, J.

This appeal concerns the applicability of General Statutes § 52-362d (d), which addresses liens against property for unpaid child support, to the settlement proceeds of a personal injury action. The plaintiff, Oswall Torres, appeals from the trial court’s summary judgment, rendered in favor of the defendant Geico Indemnity Company (Geico). The court granted Geico’s motion for summary judgment after concluding that there was no genuine issue of material fact and that Geico was entitled to judgment as a matter of law because it was statutorily obhgated, pursuant to § 52-362d (d), to withhold settlement proceeds from the plaintiff, a child support obhgor. On appeal, the plaintiff claims that because Geico entered a settlement agreement with him before it received notice of his arrearages, the court improperly concluded that § 52-362d (d) was controlling. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. In April, 2003, the plaintiff sustained injuries in a motor vehicle accident involving the defendant Richard S. Kunze, Jr., who was insured by Geico. On March 28, 2005, the parties entered a settlement agreement under which the plaintiff executed a general release, and Geico agreed to pay the plaintiff $13,000 on behalf of Kunze. Unbeknownst to Geico, the plaintiff was a delinquent child support obhgor who owed $3304 in arrearages.

Fourteen days after the release was executed, Debbie Beaudu, a claims examiner for Geico, contacted the child support hen network (network), as required by Geico’s company policy, to determine whether there were any outstanding liens on the settlement proceeds to be disbursed to the plaintiff. The network informed Beaudu that the state had placed a $3304 lien for overdue child support payments against settlement proceeds owed to the plaintiff. By a letter of April 11, 2005, Beaudu notified the plaintiffs counsel that Geico would not issue payment until the plaintiff had resolved his child support lien with the state. Subsequently, Beaudu telephoned the bureau of child support enforcement, a IV-D agency, whose personnel confirmed the state’s lien against the settlement proceeds. On May 9, 2005, an investigator for the bureau sent notices to withhold insurance assets to Geico and the plaintiff.

In June, 2005, the plaintiff initiated the present action, alleging, as against Geico, claims for breach of contract, unfair trade practices and unfair insurance practices for Geico’s failure to pay him the proceeds in accordance with the settlement agreement. On August 16, 2005, the plaintiff filed a motion for summary judgment, which the court, Wiese, J., denied, finding “the record disclose [d] that the state of Connecticut, bureau of child support enforcement, acting pursuant to § 52-362d (d), has instructed [Geico] to withhold the plaintiffs proceeds.” On November 3, 2006, Geico filed a motion for summaiy judgment. On December 18, 2006, the court, Dunnell, J., granted this motion, concluding that Geico was entitled to judgment as a matter of law because it had been statutorily obligated to withhold the plaintiffs settlement proceeds.

The plaintiff subsequently filed the present appeal, claiming that the court should not have granted Geico’s summary judgment motion because Geico breached the settlement agreement and violated General Statutes § 52-195c when it failed to tender settlement proceeds to him within thirty days of the March 28, 2005 agreement. The plaintiff argues that because Geico learned of his arrearages through its initiative rather than by the method described in § 52-362d (d), which involves a IV-D agency, its withholding of settlement proceeds was improper. We do not agree.

As a preliminary matter, we set forth the applicable standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant [a] defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) ATC Partnership v. Coats North America Consolidated, Inc., 284 Conn. 537, 544, 935 A.2d 115 (2007).

In addition, because this appeal involves statutory interpretation, we employ our well settled principles of statutory construction. “The meaning of a statute shall, in the first instance, be ascertained from 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, extra-textual evidence of the meaning of the statute shall not be considered.” General Statutes § l-2z. “Statutes are to be construed consistently with other relevant statutes, because we presume that the legislature intended to create a coherent body of law.” (Internal quotation marks omitted.) In re Bruce R., 234 Conn. 194, 207, 662 A.2d 107 (1995). “A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. Thus, it is not proper to confine interpretation to the one section to be construed.” (Internal quotation marks omitted.) Id.

In this case, the court concluded that § 52-362d (d) was controlling. This statute provides in relevant part that “[w]henever an order of the Superior Court or a family support magistrate of this state, or an order of another state that has been registered in this state, for support of a minor child or children is issued and such payments have been ordered through the IV-D agency, and the obligor against whom such support order was issued owes overdue support under such order in the amount of five hundred dollars or more, the IV-D agency, as defined in subdivision (12) of subsection (b) of section 46b-231, or Support Enforcement Services of the Superior Court may notify (1) any state or local agency with authority to distribute benefits to such obligor including, but not limited to, unemployment compensation and workers’ compensation, (2) any person having or expecting to have custody or control of or authority to distribute any amounts due such obligor under any judgment or settlement, (3) any financial institution holding assets of such obligor, and (4) any public or private entity administering a public or private retirement fund in which such obligor has an interest that such obligor owes overdue support in a IV-D support case. Upon receipt of such notice, such agency, person, institution or entity shall withhold delivery or distribution of any such benefits, amounts, assets or funds until receipt of further notice from the TV-D agency.” (Emphasis added.) General Statutes § 52-362d (d).

The plaintiff urges that § 52-195c, not § 52-362d (d), should control because the particular notification provisions of § 52-362d (d), which the plaintiff asserts are needed to trigger withholding, were never triggered. Conceding that § 52-362d (d) required Geico to withhold proceeds from him once it was notified of the overdue child support payments, the plaintiff nonetheless insists that Geico’s withholding improperly preceded the IVD agency’s notification to Geico. According to the plaintiff, because Geico was not required to obtain information about his delinquency status, it was barred from withholding payment even after acquiring such information.

The plaintiffs assertion that § 52-362d (d) requires an insurer to withhold settlement proceeds only upon receipt of notice from a IV-D agency does not comport with the plain language of the statute. Section 52-362d (d) requires that a party notified of a claimant’s child support arrearages withhold payment to that claimant. Although the statute provides that a IV-D agency may notify any person having authority to distribute amounts to a support obligor to withhold distribution of such amounts, it does not prohibit payors from acquiring this information through alternative means. The plain and unambiguous text of § 52-362d (d) thus undermines the plaintiffs claim.

The plaintiffs contention that Geico was bound to honor the settlement agreement because the formation of the agreement preceded the bureau’s notification is unavailing. Geico demonstrated that as soon as it became aware of the plaintiffs status as a child support obligor, it was required by § 52-362d (d) to withhold the plaintiffs settlement proceeds. Moreover, because § 52-362d (d) was adopted before the date of the plaintiffs accident, before the date he brought suit and before the date of the settlement, the provisions for the state’s lien to recover overdue child support payments as provided in § 52-362d (d) were readily available to the plaintiff and his counsel. See State v. Moreland, 47 Conn. Sup. 583, 586, 817 A.2d 767 (2003).

Finally, it is clear from examining the statute in context that “Connecticut child support enforcement legislation clearly evinces a strong state policy of ensuring that minor children receive the support to which they are entitled. See, e.g. . . . General Statutes §§ 52-362b, 52-362c and 52-362f (child support can be withheld from paychecks of parents or from unemployment compensation); General Statutes § 52-362e (unpaid support obligations can be deducted from federal and state income tax refunds); General Statutes § 52-362d (a) (lien may be placed on ‘any property, real or personal’ of obligor who owes $500 or more of child support); General Statutes § 52-362d (b) (delinquencies of parentobligor in excess of $1000 may be reported to consumer reporting agencies); General Statutes § 52-362d (c) (lottery winnings of delinquent parent will be reduced by amount of child support owed); General Statutes § 52-362i (court may order parent-obligor to provide cash deposit to be held in escrow by Connecticut child support enforcement bureau) . . . .” (Citations omitted.) In re Bruce R., supra, 234 Conn. 209-10. These statutoiy provisions form a consistent body of law clearly demonstrating the legislature’s desire to ensure that child support obligors pay arrearages from sums owed to them. “[I]t is hard to imagine a more compelling state interest than the support of its children.” (Internal quotation marks omitted.) Jarmon v. Commissioner of Social Services, 47 Conn. Sup. 492, 503, 807 A.2d 1109 (2002). For the foregoing reasons, we conclude that the court properly granted Geico’s motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff brought this action against Richard S. Kunze, Jr., Kimberly Bazzano-Kunze and Geico Indemnity Company.

       Established in 1999 by the state of Rhode Island, the child support lien network combines data from delinquent child support obligor records into a database for the purpose of intercepting insurance settlements owed to delinquent child support obligors. When a potential payee is found to be an obligor, insurance company personnel forward the claim information to the network, which notifies the state’s child support enforcement authorities. The state then takes action to intercept the settlement proceeds prior to disbursement to the claimant. See www.childsupportliens.com.

       General Statutes § 46b-231 (b) (12) provides that “IV-D agency” means the bureau of child support enforcement -within the department of social services, created by General Statutes § 17b-179 and authorized to administer the child support program mandated by Title IV-D of the Social Security Act.

       General Statutes § 52-195c (a) provides in relevant part: “When an action to recover damages has been settled, any settling defendant shall tender all sums due from such settling defendant to any settling plaintiff or such plaintiffs agent not later than thirty days after receipt by the person or office designated in writing to the settling plaintiff or such plaintiffs agent by the settling defendant at the time of settlement of a duly executed release and a withdrawal discontinuing any court action, if any such action is pending, that are tendered by such settling plaintiff or plaintiffs agent and are executed by or on behalf of the settling plaintiff. . . .”