author: McLACHLAN, J. LAVINE, J.,

text:
    BERNADETTA KACZYNSKI v. DARIUSZ KACZYNSKI
    (AC 28077)
    McLachlan, Lavine and West, Js.
    Argued March 12
    officially released July 29, 2008

      William F. Gallagher, with whom was Jacqueline F. Barbara, for the appellant (defendant).

      Richard C. Stewart, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

The defendant, Dariusz Kaczynski, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Bemadetta Kaczynski. On appeal, the defendant claims that the court improperly (1) found that the evidence was replete with fraudulent deeds without applying the required standard of proof to these findings, (2) made an alimony award that was not supported by evidence and the applicable law and (3) entered financial orders that unreasonably and disproportionately favor the plaintiff. While it would appear, without deciding the issue, that the financial orders are within the broad discretion appropriately exercisable by the court in dissolution of marriage actions, because the court did not enunciate the required standard of proof, we reverse the judgment of the trial court.

The record discloses the following relevant information. The plaintiff and the defendant, who were married on July 17, 1993, have three minor children: a son bom on February 15,1996, and twin daughters bom on March 11, 1999. At the time of the marital dissolution hearing in June, 2006, the plaintiff was thirty-nine years of age and the defendant was forty-two. The plaintiff was bom and educated in Poland. She had attended college in Warsaw, Poland, for four years, and had attended Housatonic Community College in Bridgeport. She worked as a housecleaner until her first child was bom. At the time of the dissolution hearing she had been working, full-time, as an accounting assistant for one year, earning $428 per week.

The defendant, at the time of the dissolution hearing, had worked for Sikorsky Aircraft Corporation for nineteen years, earning a salary of about $60,000 (gross) a year. In its memorandum of decision, the court found that the defendant was very skillful and had obtained a significant amount of income from self-employment, such as lawn maintenance and carpentry. The defendant had been hospitalized for depression and at the time of the dissolution hearing was being treated with medication and therapy.

The plaintiff filed an amended complaint on May 9, 2006, seeking dissolution of the marriage and adding causes of action alleging that the defendant had engaged in fraudulent transfers of marital property with members of his family; however, she did not seek to add any additional parties as defendants. On July 3, 2006, the court rendered judgment dissolving the parties’ marriage on the ground of irretrievable breakdown, finding that the defendant caused the breakdown of the marriage. Although the court stated that the “evidence is replete with fraudulent transfers, false tax returns and property deeds devoid of truth,” the court did not order a remedy to correct these fraudulent acts. Instead, the court issued several orders. The court ordered the defendant to pay child support to the plaintiff in the amount of $237 per week and to pay the plaintiff alimony in the amount of $250 per week for seven years. Additionally, the court ordered the defendant to provide the current insurance coverage for the children and to pay 60 percent of the children’s unreimbursed medical and dental expenses.

With respect to the parties’ assets, the court found that the defendant “in complicity with his sisters sought to take financial advantage of the [plaintiff] by deceitfully clever means.” The court considered the value of the assets that the defendant transferred to his sisters “as part of the marital assets” in making its financial orders but did not create a constructive trust for these assets. The court ordered the defendant to transfer to the plaintiff by quitclaim deed the jointly owned residence located at 31 Winfield Drive in Shelton.

The court also issued orders concerning the parties’ personal property. Those orders included a provision that the defendant’s pension plan and 401 (k) plan be divided equally. The court distributed the parties’ automobiles. The defendant was to have the 1987 Ford pickup truck, the 1992 BMW and the 2006 Infiniti. The plaintiff was awarded the 1999 Honda. The court ordered that the plaintiff retain the household furnishings used by the plaintiff and the children and that the defendant retain any furniture that he had recently purchased. Additionally, the court ordered the defendant to contribute $25,000 to the plaintiff for attorney’s fees.

On July 12, 2006, the defendant filed a motion to reargue, which the court subsequently granted. On September 14, 2006, the court modified its July 3, 2006 judgment. The court ordered that the plaintiff pay 58 percent of the children’s unreimbursed medical and dental expenses and that the defendant pay 42 percent. The court also ordered that instead of the defendant’s maintaining a $150,000 life insurance policy, he must maintain at least $81,000 in life insurance. The court vacated the household furnishings award and determined that the distribution of the furnishings would be arbitrated by attorney Stanley Goldstein. Last, the court stated that “the court’s orders in this case would be clearly undermined absent the award of attorney fees. Failure to award at least $25,000 in attorney fees will result in other necessary financial awards being affected.” This appeal followed.

At the outset, we note that “[t]he issues involving financial orders are entirely interwoven. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other. . . . Furthermore, trial courts are endowed with broad discretion to distribute property in connection with a dissolution of marriage.” (Citation omitted; internal quotation marks omitted.) Greco v. Greco, 275 Conn. 348, 354, 880 A.2d 872 (2005).

“The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Chyung v. Chyung, 86 Conn. App. 665, 667-68, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005). Although this is a deferential standard, there are cases in which the trial court abused its broad discretion by misapplying the law. See Ehrenk ranz v. Ehrenkranz, 2 Conn. App. 416, 420, 479 A.2d 826 (1984).

The defendant first claims that the court improperly found that the evidence was replete with fraudulent transfers, fraudulent tax returns and fraudulent deeds under circumstances where the court failed to articulate the applicable standard of proof for finding fraud. Particularly, the defendant argues that the court did not explicitly state or otherwise implicitly indicate whether the plaintiff had established by clear and convincing evidence that he had engaged in fraudulent transfers of property. According to the defendant, because the court did not articulate the standard of proof it used in finding fraudulent transfers, the court should not have considered those transfers in its valuation of the marital property.

“The party seeking to set aside a conveyance as fraudulent bears the burden of proving either: (1) that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligations; or (2) that the conveyance was made with a fraudulent intent in which the grantee participated. . . . If the fraudulent conveyance claim is joined with a marriage dissolution action . . . the court is not concerned with whether the transfer renders the transferor insolvent or unable to meet his or her obligations. In such a situation, the issue is whether the conveyance removed property from the marital estate that would otherwise have been subject to claims of equitable distribution.” (Citation omitted; internal quotation marks omitted.) Jacobowitz v. Jacobowitz, 102 Conn. App. 332, 340-41, 925 A.2d 424 (2007).

“A fraudulent conveyance must be proven by clear and convincing evidence . . . and whether the trial court has applied a lesser standard of proof is reviewable on appeal.” (Internal quotation marks omitted.) Tessitore v. Tessitore, 31 Conn. App. 40, 43, 623 A.2d 496 (1993). In cases in which the trial court fails to state the standard of proof that it used, we assume that the usual civil preponderance of the evidence standard was used. Id. In cases in which the trial court has failed to state explicitly the standard of proof but the memorandum of decision implies that the court applied the proper standard of proof, we need not reverse the decision. Patrocinio v. Yalanis, 4 Conn. App. 33, 36, 492 A.2d 215 (1985). With this in mind, we address the court’s consideration of the fraudulent transfers in fashioning its financial and property awards.

In its memorandum of decision, the court stated: “After six days of trial, the court is satisfied that the [defendant] in complicity with his sisters sought to take financial advantage of the [plaintiff] by deceitfully clever means. Unfortunately, the [defendant] has artfully disguised his assets so that a substantial portion of his equitable estate has been reduced.” The plaintiff did not join the defendant’s “sisters or his parents [as] parties to this action, so this judgment may appear lopsided, but a close look at [the defendant’s] machinations will make the result transparent.” (Emphasis added.) Accordingly, the court detailed the “nefarious dealings” of the defendant. The court found that the defendant’s mother conveyed a one-half interest in her home located at 95 Park Avenue in Shelton to the defendant and her two daughters. The defendant conveyed his interest in this property to his two sisters when his marriage to the plaintiff disintegrated.

With regard to two other substantial assets, the court reached a similar conclusion. The court found that title to a piece of property located at 1351 Huntington Turnpike in Trumbull was also suspect. The defendant had purchased the property eight years earlier in his name. Before the dissolution action, he transferred half of the property to his niece. Subsequently, the property was sold for $349,000. Although the defendant claimed that it was not his property, the court was not convinced by his claim. Finally, the court took notice of a $163,000 withdrawal from the parties’joint savings account. The defendant gave $100,000 to his sister and used $52,305.94 to purchase the Infinity automobile.

After reciting its findings, the court stated that the “evidence is replete with fraudulent transfers, false tax returns and property deeds that are devoid of truth.” Yet, the court did not create a constructive trust or order that the property or assets at issue be reconveyed to the plaintiff. See Patrocinio v. Yalanis, supra, 4 Conn. App. 33; cf. Dietter v. Dietter, 54 Conn. App. 481, 485-86, 737 A.2d 926, cert. denied, 252 Conn. 906, 743 A.2d 617 (1999). Rather, the court noted the “nefarious dealings” of the defendant and his family and stated that the “judgment may appear lopsided, but a close look at the [defendant’s] machinations will make the result transparent.”

The defendant argues that because the court fashioned its financial awards and property awards by taking into consideration the claimed “fraudulent conduct” of the defendant, the court abused its discretion. The defendant argues that although the court found that the transfers of the property were fraudulent, there is nothing in the record to support the conclusion that the court applied the proper standard of proof. As the defendant argues in his brief, “[a]t no point in either its original memorandum of decision, its oral comments at the conclusion of arguments on the defendant’s post-trial motion or in its supplemental memorandum of decision did the trial court state that it had found fraud proven by clear and convincing evidence.”

In opposition, the plaintiff argues that there was no need to prove fraud because the court had discretion to convey and transfer the properties and moneys of the defendant. Moreover, the plaintiff carefully discusses each of the “nefarious” transactions, arguing that the clear and convincing standard does not apply. For example, the plaintiff claims that the $100,000 check that the defendant made out to his sister did not require the court to apply the higher standard of proof; rather, the court had to determine the credibility of the defendant and his sisters. She discussed each suspect transaction in turn, arguing that the court did not need to apply the higher clear and convincing standard of proof. The dissent seems persuaded by this argument. Yet, neither the dissent nor the plaintiff provides us with case law, nor can we find any, that supports this argument.

Although we agree that the court’s findings are amply supported by the evidence, the court did not indicate what burden of proof it applied when it concluded that the defendant had engaged in fraudulent transfers. The court had to state explicitly, or implicitly, in its decision that the finding of a fraudulent conveyance was made by clear and convincing evidence. See Tessitore v. Tessitore, supra, 31 Conn. App. 43. The court did not articulate that it applied this standard, nor did it implicitly indicate that it was applying a standard higher than that of a mere preponderance of the evidence. Cf. Patrocinio v. Yalanis, supra, 4 Conn. App. 36. Thus, the court’s finding of fraud cannot stand. Although the dissent construes the language of the court during the hearing on the motion to reargue to indicate implicitly that the court had “utilized the clear and convincing standard,” our reading of the full transcript of the hearing on that motion leaves us with the impression that the court equivocated and elected not to make the finding that it found fraud by clear and convincing evidence. Reading pages thirty-five through thirty-seven of the transcript does not leave us with the impression that the court found the higher standard by implication. Our case law makes it clear that a finding of fraud by clear and convincing evidence can be made implicitly and need not be made by express language. That finding, however, cannot be made from the context of the opinion or hearing, but must be made by actual words. See, e.g., Patrocinio v. Yalanis, supra, 36 (court, in its decision on claims of fraudulent conveyance stated that “any claim of fraud requires a very high standard of proof and that this standard was higher than a mere preponderance of the evidence” [internal quotation marks omitted]).

Our Supreme Court has held that it is proper for a trial court to consider and to include the value of property that has been conveyed fraudulently when it determines financial and property awards after there is first a finding of fraud. Watson v. Watson, 221 Conn. 698, 607 A.2d 383 (1992). In Watson, the plaintiff claimed that the value of the family home should have been included in the marital estate because the defendant fraudulently had transferred the property to his children. Id., 708. The trial court found by clear and convincing evidence that the property had been transferred without substantial consideration and with fraudulent intent, which satisfied the elements under General Statutes (Rev. to 1987) § 52-552. Thus, there was a finding of fraud. The trial court, however, found that the plaintiff did not satisfy the tests for setting aside a conveyance. Therefore, the court did not consider the value of the property when it fashioned its awards. Id., 708-709. Our Supreme Court agreed with the plaintiff and determined that the value of the family home should have been included in the marital assets. Id., 709.

In Miller v. Miller, 22 Conn. App. 310, 577 A.2d 297 (1990), the defendant and his brother each owned a one-half interest in two separate corporations along with the realty where the stores owned by the corporations were located. The defendant was involved in a dissolution of marriage action when he transferred his interest in each of the properties to his brother without consideration. After the trial court concluded that the interests had been conveyed fraudulently, it set aside only one of the transfers, yet ordered that the defendant pay to the plaintiff the amount of his interest in the second.property, which had not been set aside. The defendant appealed, and this court upheld the trial court’s remedy. Id., 315.

In Greco v. Greco, supra, 275 Conn. 348, our Supreme Court affirmed this court’s judgment that the trial court abused its discretion when it distributed marital property disproportionately. In Greco, the trial court found that the plaintiff had not proved the existence of a fraudulent conveyance, yet, ordered a vastly disproportionate property distribution. Id. This court concluded that this was an abuse of the trial court’s discretion. Id. The plaintiff appealed to our Supreme Court, claiming that the trial court’s disproportionate award was justified by relying on allegations of fraud. Id., 357. Our Supreme Court rejected the plaintiffs claim, stating that “[case law] does not support her claim that the court could properly consider the value of the transferred stock and real estate as part of the marital [property], in light of the fact that the trial court explicitly found that the conveyance at issue . . . was not fraudulent.” (Emphasis in original; internal quotation marks omitted.) Id., 358-59.

Here, the defendant argues, the court improperly considered the value of the allegedly fraudulently transferred property because it did not explicitly or implicitly find fraud by clear and convincing evidence. We agree with the defendant. In the cases that have permitted a trial court to consider the value of property that has been fraudulently transferred even if the transfer has not been set aside, the court first found a fraudulent transfer by the proper standard of proof. See id., 348; Watson v. Watson, supra, 221 Conn. 706; Miller v. Miller, supra, 22 Conn. App. 312-13.

Because the court did not articulate the appropriate standard for a fraudulent transfer, the court could not properly have considered the value of these allegedly fraudulent transfers when it fashioned its financial and property awards.

In a dissolution of marriage case, the judgment must be viewed as a carefully crafted mosaic, each element of which may be dependent on the other. See Ehrenkranz v. Ehrenkranz, supra, 2 Conn. App. 424. Therefore, we conclude that the court abused its discretion by considering the value of the property and money involved in the allegedly fraudulent transfers when it fashioned its award. The case must be remanded for a new hearing.

The judgment is reversed and the case is remanded for a new trial.

In this opinion WEST, J., concurred.

LAVINE, J.,

dissenting. I respectfully dissent from the majority opinion and would affirm the judgment of the trial court. Although the trial court in its memorandum of decision did not articulate explicitly the standard of proof it applied to the claims of fraudulent conveyance alleged by the plaintiff, Bemadetta Kaczynski, it did so in the context of the hearing on the motion to reargue filed by the defendant, Dariusz Kaczynski. Because the colloquy between the court and counsel for the defendant, Jacqueline F. Barbara, makes it clear implicitly that the court applied the “clear and convincing standard,” and that Barbara understood that to be the prevailing standard, I would affirm the judgment of the trial court.

Following a six day trial, the court rendered its judgment on July 3, 2006. On July 12, 2006, the defendant filed a motion to reargue. Section eight of the motion to reargue addressed the court’s order regarding the marital home at 31 Winfield Drive, Shelton, and is six pages in length. The first paragraph of section eight states: “The [cjourt states in its findings that the [defendant artfully disguised his assets, that the evidence is replete with fraudulent transfers, false tax returns and property deeds that are devoid of truth. Additionally, the [c]ourt found that the [defendant was the sole cause for the breakdown of the marriage. There were sixty-nine exhibits that were entered during the six day trial. None of the exhibits supports the [c]ourt’s findings that the [defendant disguised assets or that he is the sole cause for the breakdown of the marriage.” The defendant took issue with the court’s findings on the ground that they were not supported by the evidence. At no time did the defendant claim that the court had applied the wrong standard in reaching its decision that fraudulent transfers had occurred. Moreover, with respect to the real property, the court did not order any remedies for fraud, e.g., rescission or reconveyance but, rather, considered the property transferred by the defendant to be part of the marital assets.

Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 478 A.2d 257 (1984), has informed my analysis of the issue. “The litigants and the factfinder must know at the onset of the trial what standard of proof is to be applied. . . . In the event that the memorandum of the trial court is silent as to the standard of proof used, it will be assumed that the one ordinarily applied in most civil cases, that of a fair preponderance of the evidence, was used. . . . If the trial court neither states nor implies that it is applying the proper standard of proof, it is impossible for an appellate court to determine whether the trial court, had it applied the required standard of proof, would still have rendered judgment as it did. . . . Whether the trial court has held a party to a less exacting standard than that which the law requires is a question of law, and, as such, is reviewable.” (Citations omitted; emphasis added.) Id., 297. The court’s memorandum of decision in this case is particularly harsh in tone and language with respect to the defendant, which supports the inference that the court’s findings were made on the basis of clear and convincing evidence.

On August 16, 2006, the court held a hearing on the defendant’s motion to reargue. Throughout her argument, Barbara stated that there was insufficient evidence that the defendant fraudulently conveyed certain real property. The following colloquy took place between counsel for the defendant and the court.

“[The Defendant’s Counsel]: There is no evidence in this case, not one iota of clear and convincing, okay. That’s the first basis. . . . [T]he party seeking to set aside a conveyance as fraudulent bears the burden of proving that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligations. That’s not the case here, Your Honor. It’s not the case. You’ve got to first prove that. Now, the question becomes—
“The Court: Did he get something from his sisters?
“[The Defendant’s Counsel]: He didn’t get anything, Your Honor, from his sisters. Even if—even if he did—
“The Court: Come on, [counsel].
* * *
“[The Defendant’s Counsel]: But fraud is a very serious allegation; that’s why it’s clear and convincing. You’ve got to prove it. . . . And if the facts, Your Honor, don’t support it, it’s clearly erroneous. . . .
“The Court: The court’s got a job to do, and that’s how I saw it.” (Emphasis added.)

Moreover, it is no secret to practicing lawyers that fraud must be proven by clear and convincing evidence. In fact, the transcript of the hearing on the motion to reargue makes it perfectly clear that Barbara was aware of the standard when she challenged the court’s findings. Barbara stated that fraud was a serious allegation that had to be proven by clear and convincing evidence. The court stated that that was how it “saw it.” As noted in footnote 2 of this opinion, the defendant never came out and asked the court to articulate the standard of proof that it applied. This court often has noted that an appellant may not choose one course of action at trial and take another turn on appeal if the trial court’s decision is not to its liking. See Larobina v. McDonald, 274 Conn. 394, 402, 876 A.2d 522 (2005). “In the absence of an articulation, we presume that the trial court acted properly.” (Internal quotation marks omitted.) Champagne v. Champagne, 85 Conn. App. 872, 879, 859 A.2d 942 (2004); see also State v. Rosario, 39 Conn. App. 550, 560, 665 A.2d 152 (1995) (“[w]e are entitled to presume that the issuing judge properly considered all the facts submitted for his consideration”), rev’d on other grounds, 238 Conn. 380, 680 A.2d 237 (1996).

In sum, the defendant’s counsel argued to the court that there was no clear and convincing evidence of fraudulent conveyances, implicitly indicating that she recognized that this was the standard the court had in fact used. The court disagreed with the argument, responding, “that’s how I saw it.” All language is contextual. The language the court used in responding to Barbara’s arguments makes it clear, implicitly, that the court had utilized the clear and convincing standard. See Patrocinio v. Yalanis, 4 Conn. App. 33, 36, 492 A.2d 215 (1985). Moreover, as the majority notes, “the court’s findings are amply supported by the evidence.” In my opinion, it elevates form over substance in this equitable proceeding to remand this case for another hearing because the court failed in its memorandum of decision to state explicitly the standard of proof applied, especially in the absence of a motion for articulation.

For the foregoing reasons, I respectfully dissent.

       Because our resolution of the first issue requires us to order a new trial, we do not address the other issues raised by the defendant.

       The court ordered that the defendant maintain a term life insurance policy in an amount not less than $150,000, naming the plaintiff as his beneficiary until his alimony and child support obligations terminate.

       Furthermore, the court ordered: “The [defendant] is the owner of the 2006 Infiniti [automobile] free and clear of all encumbrances. Within thirty (30) days of the judgment, the [defendant] shall either sell the Infiniti or encumber it with a loan of $40,000, and pay the $40,000 to [the plaintiff] to enable her to purchase an appropriate vehicle for her and the children’s use. The [plaintiff] shall transfer possession of the [Honda] Odyssey automobile to the [defendant] upon receipt of the $40,000 from [the defendant]. The [defendant] shall retain the 1987 Ford F150 and the 1992 BMW motor vehicles. The parties will each be responsible for all expenses, insurance, repairs and costs associated with their respective automobiles.”

       The plaintiff asserted, in her amended complaint, that the defendant partook in transfers of property “without substantial consideration and removed the property from the marital estate that would otherwise have been subject to the claims of equitable distribution.” In her prayer for relief, she cited the fraudulent conveyance statute, General Statutes § 52-552, requesting that the court “consider as part of the marital estate, the properties and monjeys] conveyed or transferred by the defendant without consideration whether or not the [cjourt sets aside these conveyances as fraudulent. . . .” General Statutes § 52-552, however, was repealed by Public Acts 1991, No. 91-297, and the legislature has enacted General Statutes § 52-552a, the Uniform Fraudulent Transfer Act. We conclude that although the plaintiff incorrectly cited this act in her complaint, the complaint gave reasonable notice of the claim she was making. See generally Gaudino v. East Hartford, 87 Conn. App. 353, 359 n.3, 865 A.2d 470 (2005) (stating: “They were on notice that the defendant believed something was missing from the complaint. A review of the complaint and the governing law would have revealed the use of the incorrect statute.”).

       The court found that the defendant’s assertion that the $100,000 he ■withdrew was repayment for a seventeen year old loan to his sister was not credible.

       It should be noted that in a typical dissolution of marriage case, the court has very broad discretion when ordering its awards. General Statutes § 46b-81 (a) provides in relevant part that the court “[a]t the time of entering a decree annulling or dissolving a marriage or for legal separation . . . may assign to either the husband or wife all or any part of the estate of the other. . . .” Moreover, “[a] fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.” (Internal quotation marks omitted.) Finan v. Finan, 100 Conn. App. 297, 300, 918 A.2d 910 (2007), rev’d on other grounds, 287 Conn. 491, 949 A.2d 468 (2008). In the present case, Ihe court properly applied the statutory criteria.

       The transcript contained the following colloquy:
      “The Court: But if they don’t prove fraud—they may prove it, they may prove—they may not have to.
      “[The Defendant’s Counsel]: Why? That was the basis of the court’s decision.
      “The Court: Well, that’s why some appellate court may well say that they didn’t have to. Okay.
      “[The Defendant’s Counsel]: The basis of the court’s decision is the reason why we’re giving the plaintiff 98 percent—•
      “The Court: Court may well say it would be in the—the court may well say that the alternative is just as satisfactory.
      “The Court: Did he get something from his sisters?

        “[The Defendant’s Counsel]: He didn’t get anything, Your Honor, from his sisters. Even if—even if he did—
      “The Court: Come on, [counsel].
      “[The Defendant’s Counsel]: Your Honor, just let me explain. The reason why this case took six days, okay, is because of speculation, conjecture and maybes. And I recall specifically the court’s comments that it doesn’t see it, let’s move this case along. That’s why this case took six days. Okay. Every allegation 1hat the plaintiff brought up, every maybe, maybe there’s an account here, you got to prove it, there are no maybes. That’s why this case took six days.
      “But fraud is a very serious allegation; that’s why it’s clear and convincing. You’ve got to prove it. Now, after you prove it, do you bring those people in or do you redistribute the assets differently. But you’ve got to prove it first. And if the facts, Your Honor, don’t support it, it’s clearly erroneous. That’s what Greco [ v. Greco, supra, 275 Conn. 359-60] found—clearly erroneous, abuse [of] discretion and reversed all financial orders. That’s what we’re left with in this case. Thank you.
      “The Court: The court’s got a job to do, and that’s how I saw it.”

       Our Supreme Court stated: “[T]he trial court in a dissolution action may properly consider as part of the marital estate property that has been fraudulently transferred even though for some reason the trial court has chosen not to set aside the transfer. Such an outcome prevents a party to a dissolution action from inequitably benefiting from his fraudulent transfer of real property by reducing the assets that would otherwise be included in the marital estate and available for assignment pursuant to General Statutes § 46b-81.” Watson v. Watson, supra, 221 Conn. 709.

       We are aware of cases in which if the dissolution of the marriage itself is not challenged on appeal, that portion of the judgment is affirmed. We have elected to reverse the dissolution of marriage. Dissolving the marriage would, in the event of the death of one of the parties, prevent the other party from being a surviving spouse for the purposes of inheritance and rights to participate in qualified benefit plans.

       Section eight of the motion to reargue is entitled: “Real Estate: The [defendant] shall quitclaim 31 Winfield Drive, Shelton, CT to the [plaintiff] within [thirty] days of [¡Judgment.”

       The fact that the defendant did not question the standard of proof used by the court in his motion to reargue leads me to question whether the issue has been preserved for appellate review. “[0]ur Supreme Court has made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial. . . . This same principle requires parties to raise an objection, if possible, when there is still an opportunity for the trial court to correct the proposed error. . . . When we speak of correcting the claimed error, we mean when it is possible during that trial, not by ordering a new trial.” (Internal quotation marks omitted.) Macy v. Lucas, 72 Conn. App. 142, 158, 804 A.2d 971, cert. denied, 262 Conn. 905, 810 A.2d 272 (2002). “[W]e will not decide an appeal on an issue that was not raised before the trial court. ... To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Histen v. Histen, 98 Conn. App. 729, 737, 911 A.2d 348 (2006). I note that the defendant failed to ask the trial court to articulate the standard of proof it used in deciding the claims at issue. See Practice Book § 66-5.

       Examples of the court’s language include, but are not limited to, the following excerpts from its memorandum of decision: “While the [defendant] would like to present the financial aspects as another straightforward wage earner case, the evidence belies and refutes this. After six days of trial, the court is satisfied that the [defendant] in complicity with his sisters sought to take financial advantage of the [plaintiff] by deceitfully clever means. Unfortunately, the [defendant] has artfully disguised his assets so that a substantial portion of his equitable estate has been reduced. The [plaintiff] has not made [the defendant’s] sisters or his parents parties to this action, so this judgment may appear lopsided, but a close look at [the defendant’s] machinations will make the result transparent. The nefarious dealings start with the 95 Park Avenue, Shelton, property. . . . The other transactions are less transparent. The court finds that the defendant and his two sisters lack credibility. ... A review of all of the testimony shows an obvious manipulation of [the defendant’s] assets with the connivance and assistance of his family. The evidence is replete with fraudulent transfers, false tax returns and property deeds that are devoid of truth.”

       At the conclusion of the hearing on the defendant’s motion to reargue, the court ordered the plaintiff to file a memorandum of law. In her memorandum of law, the plaintiff argued that there was clear and convincing evidence that the defendant conveyed certain property fraudulently.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ROBERT A. LEGNANI
    (AC 26840)
    DiPentima, McLachlan and West, Js.

      Argued February 5
    officially released July 29, 2008

      Moira L. Buckley, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Kevin Murphy, senior assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Robert A. Legnani, appeals from the judgments of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), three counts of criminal possession of a pistol in violation of General Statutes § 53a-217c (a) (1), criminal use of a firearm in violation of General Statutes § 53a-216, possession of a weapon in a motor vehicle in violation of General Statutes § 29-38 and possession of marijuana in violation of General Statutes § 2la-279 (c). On appeal, the defendant claims that (1) the state presented insufficient evidence to support the counts of criminal possession of a pistol, criminal use of a firearm and possession of a weapon in a motor vehicle, (2) the trial court improperly concluded that the verdict in docket number CR04-0022869-T was not tainted by juror misconduct, after conducting an insufficient inquiry, (3) the court improperly denied his motion to suppress certain identification testimony, (4) the court improperly failed to hold a Porter hearing and (5) the court improperly consolidated the two informations for trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On the night of May 1, 2004, the victim, Jerry Sweeney, attended a party in Southington with his friend, Trevon Scott. Scott had been invited to the party, which was a birthday party for Chris Dellaventura, Tom Folak and Christine Casertano, and he invited Sweeney. The defendant also attended the Southington party that evening.

Sweeney’s antisocial behavior, after drinking continuously during the course of the evening, incited a group of male partygoers to chase both him and Scott from the party premises. Casertano, who was returning to the party after having accompanied the defendant to his home, observed Sweeney and Scott fleeing from the angry crowd. She and some friends drove to their aid, picked them up and brought them to her home. Once at Casertano’s house, Sweeney continued to drink and became more obnoxious and belligerent. The defendant was not at Casertano’s house while this was occurring. When Sweeney started to become belligerent and uncontrollable, Casertano called the defendant to ask if he would drive Sweeney home. The defendant agreed to do so. Casertano, upset with Sweeney because of his previous behavior at the party and his present behavior at her house, asked him to leave. On his way out of the house, Sweeney threw his vodka drink in her face. He then began yelling obscenities and calling her various insulting names while standing on her front lawn. He also threatened to have the Diablos, a motorcycle gang, “do things” to her.

A few minutes after Sweeney had thrown his drink in her face, Casertano received a telephone call from the defendant. She informed him of Sweeney’s recent behavior, and he asked to be provided with the direction in which Sweeney was headed. Although unable to provide the requested information, while still on the telephone, she saw the defendant in his van drive by her house.

After leaving Casertano’s house, and while wandering the streets on foot in an attempt to find a way home from the unfamiliar neighborhood, Sweeney noticed a van behind him proceeding very slowly. Soon thereafter, he noticed that the van was no longer behind him but, instead, was approaching him from the front. Sweeney then jumped into the bushes to hide for a short period of time before continuing on. Soon after he began to walk again, he noticed the same van, which stopped in front of him. The driver shouted to Sweeney, asking him if he knew “Chrissy,” to which Sweeney responded that he did know her. Then the driver pointed what appeared to be a cap gun at Sweeney, who then heard a “click” and a loud noise and immediately felt pain in his stomach. Subsequently, police officers responded to the scene where they found Sweeney lying in the road bleeding from a gunshot wound to the stomach. They quickly got him into an ambulance, which transported him to a hospital.

Meanwhile, after returning to his house, the defendant placed another call to Casertano to inform her that everything was taken care of and not to call him anymore that night. Subsequently, Casertano did call the defendant, expressing concern about Sweeney’s returning to carry out his threats regarding the motorcycle gang. The defendant offered to stay with Casertano for the night, but she told him that it was not necessary, as Scott was going to stay over.

During the police investigation, Officer Lewis Palmieri spoke with Sweeney while he was still in the hospital. Sweeney told the officer that the person who shot him was a white male who was driving a gray van. Sweeney further described the van as being customized with tinted windows and a brow, a piece of plastic that extends over the windshield to prevent glare from the sun. After speaking with Sweeney, police officers drove past the defendant’s house because his name had come up in their conversation with Casertano. After seeing a gray van, which matched the description given by Sweeney, in the defendant’s driveway, the police officers put together an array of photographs, which included the defendant and eight other white males. When the detectives showed the array to Sweeney, he identified the defendant as the man who had shot him.

Shortly thereafter, detectives executed a search warrant on the defendant’s home and seized several items: a Makarov pistol, a Colt .45 caliber pistol, a .30/.30 rifle, an SKS rifle, a twelve gauge shotgun, a Makarov pistol magazine, nine millimeter Makarov cartridges and less than four ounces of marijuana. The defendant was arrested, tried and convicted of the several crimes, as previously indicated. On August 10, 2005, the defendant was sentenced to a total effective term of twenty-five years incarceration, suspended after twelve years, with five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the state presented insufficient evidence to support his conviction of the charges of criminal possession of a pistol, criminal use of a firearm and possession of a weapon in a motor vehicle. Specifically, he argues that the state presented insufficient evidence of the barrel length of the firearm used to shoot the victim.

Our standard of review for a sufficiency of evidence claim is well established. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Farnum, 275 Conn. 26, 32, 878 A.2d 1095 (2005).

The defendant argues that for the jury to find him guilty of criminal possession of a pistol, criminal use of a firearm and possession of a weapon in a motor vehicle, it had to find that the state had proved beyond a reasonable doubt that he had possessed or had used a pistol or a revolver. Citing General Statutes § 29-27, the defendant points out that a pistol and a revolver are both defined as firearms with a barrel length of less than twelve inches. The defendant also notes that the firearm used to shoot Sweeney never was recovered and that Sweeney was unable to describe the firearm in great detail. Therefore, the defendant argues, the state failed to prove that the weapon used was a pistol, as defined by the statute, and hence, failed to prove an essential element of the crimes. We do not agree with the defendant.

“Direct numerical evidence is not required to establish the length of the barrel of a handgun in question.” State v. Miles, 97 Conn. App. 236, 242, 903 A.2d 675 (2006). In State v. Williams, 231 Conn. 235, 645 A.2d 999 (1994), overruled in part on other grounds by State v. Murray, 254 Conn. 472, 487, 757 A.2d 578 (2000) (en banc), our Supreme Court concluded that the state had presented sufficient evidence of the barrel length when several witnesses had stated that the defendant had pulled a “small handgun” out of his “waist length jacket.” (Internal quotation marks omitted.) Id., 252. Furthermore, in State v. Miles, supra, 242, this court concluded that the state had presented sufficient evidence of the length of the barrel because the victim had testified that he had seen the defendant with a handgun and had further described it as a silver handgun.

In the present case, we conclude that the jury reasonably could have found, on the basis of the evidence introduced at trial, that the firearm used to shoot Sweeney had a barrel length of less than twelve inches. At trial, Sweeney testified that the object pointed at him by the defendant was a gun, although he initially thought it might have been a cap gun. The state presented evidence that the defendant, at one point, had owned another Makarov pistol, in addition to the one recovered from his home. Evidence was also presented that the bullet casings found at the scene of the shooting had not been fired from the Makarov pistol seized from the defendant’s home but had been fired from another Makarov pistol. Sweeney’s description of the firearm as looking like a cap gun was similar to the witnesses’ testimony in Williams, in which they described the defendant’s gun as a “small handgun.” As the court noted in Williams, “it is extremely unlikely that anyone would describe as ‘small’ a handgun that had a barrel of one foot or longer.” State v. Williams, supra, 231 Conn. 252. Similarly, in the present case, it is unlikely that anyone would describe as a “cap gun” a firearm with a barrel length longer than one foot. Additionally, there was evidence that the defendant possessed nine millimeter Makarov ammunition, which was similar to the nine millimeter Makarov casings found at the scene, that the defendant had owned another Makarov pistol and that the bullet casings found at the scene had been fired by another Makarov pistol. It was, therefore, reasonable for the jury to infer from all of this evidence that the missing Makarov pistol was the “cap gun” the victim described as having been used by the defendant in this shooting. As a result, we conclude that the state presented sufficient evidence of the barrel length of the firearm used to shoot Sweeney.

II

Second, the defendant claims that the court, after conducting an insufficient inquiry, improperly concluded that the verdict in CR04-0022869-T was not tainted by juror misconduct.

The following facts and procedural history are relevant to our disposition of the defendant’s claim. On August 23, 2006, after sentencing had taken place, the defendant’s appellate counsel filed with the trial court a postsentencing motion for an evidentiary hearing regarding potential juror misconduct. To support his motion, the defendant attached an affidavit of a juror, T, in which the affiant stated: (1) T and at least one other juror initially voted “not guilty” on the attempt to commit murder charge, (2) all of the jurors eventually agreed to find the defendant not guilty of the attempt to commit murder charge, (3) T did not believe that the state had proven the defendant guilty of the assault charge, (4) T agreed to vote “guilty” on that charge only after another juror threatened to change his vote on the attempt to commit murder charge to guilty and (5) T changed his vote because he did not want a hung juiy on the attempt to commit murder charge, thereby exposing the defendant to another trial for that more serious offense. On January 19, 2007, the court held an evidentiary hearing on the defendant’s motion alleging jury misconduct. The court allowed the state and the defendant to submit potential questions for T with the caveat that the court would decide what questions would be asked and would conduct the inquiry. On that same date, the court conducted a limited inquiry of T, which mainly focused on T’s recollection and awareness of the instructions on legal principles that had been given to the jurors prior to their deliberations. The court asked T questions such as, “Do you recall that I spent a fairly lengthy period of time giving the jurors instructions as to how they were to deliberate the case once it was turned over to them?” and, “[D]o you recall that I instructed the jury that the jurors must listen to the opinions of the other jurors in making deliberations, but ... at the end, you make up your own mind?”

On March 2, 2007, the court issued a memorandum of decision denying the defendant’s jury misconduct claim. The court held: “Connecticut courts have consistently found that the expressions and arguments of jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations in arriving at a verdict are to be considered immaterial in claims of juror misconduct. To do otherwise would violate the sanctity of the juror process. This court feels that this process was concisely measured by the Connecticut Supreme Court in Aillon v. State, 168 Conn. 541, 550, 363 A.2d 49 (1975), when it held: ‘That rule has been aptly described as applying the parol evidence rule to a jury’s verdict, so that their outward verdict as finally and formally made, and not their prior and private intentions, is taken as exclusively constituting the act.’ ” The court, therefore, found there was no jury misconduct.

“Any assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations [or the possibility] of jury [bias or] misconduct will necessarily be fact specific. . . . We [therefore] have limited our role, on appeal, to a consideration of whether the trial court’s review of alleged [or possible] jury misconduct can fairly be characterized as an abuse of its discretion. . . . Although we recognize that trial [c]ourts face a delicate and complex task whenever they undertake to investigate [the possibility] of juror misconduct or bias . . . we nevertheless have reserved the right to find an abuse of discretion in the highly unusual case in which such an abuse has occurred. . . . Ultimately, however, [t]o succeed on a claim of [juror] bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact. . . .

“[W]hen . . . the trial court is in no way responsible for the [possible] juror misconduct [or bias], the defendant bears the burden of proving that the misconduct [or bias] actually occurred and resulted in actual prejudice.” (Citation omitted; internal quotation marks omitted.) State v. Sinvil, 90 Conn. App. 226, 240-41, 876 A.2d 1237, cert. denied, 275 Conn. 924, 883 A.2d 1251 (2005).

In the present case, the defendant argues that the court did not conduct a sufficient examination of T to ascertain whether juror misconduct occurred. The defendant notes that the court did not ask the juror if he recalled the court’s instruction prohibiting consideration of punishment or the consequences of their verdict. We do not find the defendant’s arguments persuasive.

The defendant, in essence, wanted the court to inquire more deeply into the alleged juror misconduct. The court basically asked T whether he recalled the relevant instructions given by the court prior to deliberation. Because T responded affirmatively to the court’s questions, the court did not feel the need to proceed any further. To have proceeded further would have been an abuse of discretion. “That the verdict may have been the result of compromise, or a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” (Internal quotation marks omitted.) State v. Grant, 103 Conn. App. 456, 464, 928 A.2d 1247, cert. denied, 284 Conn. 925, 933 A.2d 725 (2007). Furthermore, “[i]t is well established that evidence as to the expressions and arguments of the jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations generally, in arriving at their verdict is excludable in postverdict proceedings as immaterial. . . . [An] affidavit to avoid the verdict may not be received to show any matter which does essentially inhere in the verdict itself, as that the juror did not assent to the verdict; that he misunderstood the instructions of the court; the statements of the witnesses or the pleadings in the case; that he was unduly influenced by the statements or otherwise of his fellow jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror’s breast.” (Citation omitted; internal quotation marks omitted.) State v. Gary, 273 Conn. 393, 415, 869 A.2d 1236 (2005). T’s having been unduly influenced by the statements of a fellow juror relates to T’s motives and mental operations and therefore was irrelevant in the postverdict proceeding and should not have been inquired into by the court.

The court could have inquired more deeply into any extraneous influence on the jurors. In Aillon v. State, supra, 168 Conn. 550, our Supreme Court stated that jurors could testify “regarding the failure to obey certain essential formalities of juror conduct, i.e., irregularities and misconduct extraneous to the mental operations of the jury.” (Emphasis added.) Additionally, the court could have inquired more deeply into any allegations of racial bias if they had been present. The conduct at issue in the present case involved discussion among jurors, which was relevant only to their motives and mental operations in reaching a verdict. The court’s inquiry was tailored properly to ascertaining this fact. Therefore, the conduct did not involve any extraneous influence on the jurors or allegations of racial bias, and the court did not abuse its discretion by conducting a limited, but sufficient, inquiry.

III

Third, the defendant claims that the court improperly denied his motion to suppress certain identification testimony. We disagree.

On February 10, 2005, the defendant filed a motion to suppress, inter alia, evidence pertaining to Sweeney’s photographic identification of the defendant as the individual who had shot him. In response, the court held a suppression hearing. At the suppression hearing, Palmieri testified regarding the identification procedure. He stated that he had arranged an array comprised of eight photographs of white males who were similar in appearance to the defendant. He then brought the array to Sweeney in the hospital, asked if he recognized anybody and also informed Sweeney that “there could be someone in there that you might recognize, and there may not be.” Palmieri also testified that Sweeney was very certain of his identification of the defendant as the assailant, as was evidenced by his immediately pointing to the defendant’s photograph and his physical reaction upon viewing the photograph. After identifying the defendant’s photograph, Sweeney began to shake and cry. Sweeney also testified that he was 100 percent certain that he was identifying the man who had shot him. He, too, noted that he had begun to cry upon viewing the photograph of the defendant. On September 21, 2005, the court issued a memorandum of decision in which it denied the defendant’s motion to suppress. The court found that “the credible facts establish that the photo array procedure was proper both in its substantive quality as well as the way it was presented to the witness.” Furthermore, the court found that “there is nothing in the record to establish any suggestiveness in the photo array or the way it was displayed to the victim.”

As a preliminary matter, we set forth the legal principles that guide our resolution of the defendant’s claim. “We will reverse the trial court’s ruling [on evidence] only where there is an abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court’s ruling. . . . Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error.” (Internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 548, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

The defendant argues that the identification procedure was unnecessarily suggestive and that the identification was unreliable. First, he argues that the manner in which the photographic array was assembled was suggestive because the detectives did not tell Sweeney that the defendant may not be included in it, and the police had no description of a suspect on which they could build the photographic array. Additionally, the defendant argues that his photograph was emphasized because no one else who had attended the party on the evening in question was included in the array. Second, the defendant argues that the identification was unreliable for several reasons: Sweeney lacked the opportunity to view his assailant because the shooting happened so quickly, Sweeney’s intoxication compromised his ability to observe that night and Sweeney was under the effects of morphine at the time that he made the identification.

“[B]ecause the issue of the reliability of an identification involves the constitutional rights of an accused ... we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable. . . . [T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect.” (Internal quotation marks omitted.) Id., 547-48. Nevertheless, “[i]f the procedures used to identify the defendant were not unnecessarily suggestive, we need not independently analyze whether the identification was reliable.” State v. Boscarino, 204 Conn. 714, 726, 529 A.2d 1260 (1987). “An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification.” (Internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 156, 665 A.2d 63 (1995).

In the present case, we conclude that the identification procedure was not unnecessarily suggestive. First, the defendant argues that the identification procedure was unnecessarily suggestive because the detectives did not tell Sweeney explicitly that the defendant may not be included in the array. Palmieii testified at the suppression hearing, however, that he instructed Sweeney that there may or may not be someone in there that you recognize, an instruction that serves a purpose similar to that of an instruction that the assailant may not be in the array. Furthermore, although our Supreme Court has approved the idea of “an affirmative warning to witnesses that the perpetrator may or may not be among the choices in the identification procedure”; State v. Ledbetter, supra, 275 Conn. 574; the court has not mandated that warning as a matter of law.

Next, the defendant argues that the identification procedure was unnecessarily suggestive because the detectives had no description of a suspect from which they could build a photographic array. In State v. White, 229 Conn. 125, 163, 640 A.2d 572 (1994), as in the present case, the defendant was urging the court “to hold that it is unnecessarily suggestive for the police to assemble a photographic array from street information without first obtaining a description or other information about the suspect from the victim. [The defendant] claims that doing so is tantamount to telling the victim that the police have developed a suspect through other information and that the suspect is included in the array.” Our Supreme Court rejected this argument, however, stating that the procedure is not invalidated “unless the police expressly indicate that a suspect is included in the array.” Id. In the present case, as in White, the police did not indicate expressly that a suspect was included in the array. Therefore, the compiling of a photographic array without a description did not render the identification procedure unnecessarily suggestive in this case.

Finally, the defendant argues that the detectives emphasized the defendant’s photograph because no one included in the array, other than the defendant, had attended the party on the evening in question. The defendant did not present any proof that the lack of other partygoers in the photographic array rendered the identification procedure suggestive. First of all, Sweeney testified that he did not know the defendant’s name and, to the best of his knowledge, had not met him prior to identifying him in the photographic array. Second, Sweeney testified that he “recognized [the defendant] as the man who shot [him].” Sweeney never mentioned that he had recognized the defendant from having seen him at the party or even that he had been aware that the defendant had been at the party.

We conclude that the identification procedure in the present case was not unnecessarily suggestive, as it did not give rise to a very substantial likelihood of irreparable misidentification.

IV

Fourth, the defendant claims that the court improperly failed to hold a Porter hearing. Specifically, the defendant requested a Porter hearing to determine whether the testimony of the state’s expert firearm and tool mark examiner, Edward Jachimowicz, regarding his comparison between a Makarov magazine recovered from the defendant’s home and fired cartridges found at the scene of the shooting, was relevant and supported by a valid methodology.

On February 10, 2005, the defendant filed a motion for a Porter hearing. The state opposed the defendant’s motion, arguing that the evidence fell within the general category of firearm and tool mark identification, which routinely has been held admissible. In response, the court held an evidentiary hearing. At the hearing, the state called James Stephenson, a forensic expert employed by the state department of public safety in the forensic science laboratory, even though Jachimowicz actually had performed the relevant tool marking tests. The defendant did not call any witnesses. Stephenson testified that firearm and tool mark identification has been an accepted forensic identification procedure for more than one century. Stephenson explained that tool mark examining involves “looking at those striated marks found upon the surfaces or contoured surfaces of an object that’s come into contact with a tool. And this is how we’re able to make our conclusion as to correspondence to a specific tool.” When asked about magazine markings left on cartridge casings, Stephenson explained that a magazine mark is a class mark, which they would examine for the purpose of matching a particular cartridge case to a magazine or to a particular firearm. Stephenson also testified that it was rare for him to testify about magazine markings because a magazine marking rarely comes into consideration when doing firearms identification on the basis of cartridge cases. Usually, the identification of a bullet is done through the ballistics process, and the expert will focus on the barrel markings, making magazine markings on casings unnecessary. Several times during the cross-examination of Stephenson, defense counsel attempted to inquire into the specific methodology used by Jachimowicz. The court precluded defense counsel from delving too deeply into the specific methodology used, sustaining the state’s objection that the specific methodology used pertains to the weight of the evidence and not to the request for a Porter hearing.

On September 19, 2005, the court issued a memorandum of decision denying the defendant’s motion for a Porter hearing. The court held that it “need not conduct a. Porter type hearing in this case because the scientific principles of ballistics and firearms analysis are very well established and can be admitted on a mere showing [of] relevance.” The court then found the evidence to be both reliable and relevant. Jachimowicz testified at trial regarding his findings with respect to some of the items seized. First, he testified that the markings on two casings found at the scene of the shooting indicated that they had, at some point, been loaded into the magazine of the Makarov pistol seized from the defendant’s house. Second, Jachimowicz concluded that the bullet casings found at the scene of the shooting had not been fired from the Makarov pistol seized from the defendant’s home. His examination of the casings, however, revealed class characteristics, which were consistent with the shells’ having been fired from another Makarov pistol. The state also presented evidence that the defendant, at one point, had owned another Makarov pistol. This fact was established through the testimony of two of the defendant’s coworkers, who testified that each of them had sold the defendant a Makarov pistol. Furthermore, the state presented evidence, through a police inventory report from 1997, indicating that the defendant was found at that time to have owned a Makarov pistol with a serial number that did not match the serial number of the Makarov pistol seized from the defendant’s home in the most recent search. During Jachimowicz’ testimony at trial, the defendant renewed his request for a Porter hearing, arguing that the court had not allowed a substantive hearing on the methodology and procedures as they applied to magazine marks. The court, however, denied the defendant’s renewed motion.

“It is axiomatic that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. In this regard, the trial court is vested with wide discretion in determining the admissibility of evidence. . . . Accordingly, [t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Because a trial court’s ruling under Porter involves the admissibility of evidence, we review that ruling on appeal for an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Sorabella, 277 Conn. 155, 214, 891 A.2d 897, cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006).

The defendant argues that Jachimowicz’ testimony regarding the matching of cartridges to magazines exclusively on the basis of magazine marks should have been subjected to Porter scrutiny because it is not generally accepted in the scientific community. Furthermore, the defendant argues that when a subjective methodology is applied, as it was in the present case, the court must determine whether the principles underlying the particular procedure were applied properly to the facts of the case. Additionally, the defendant argues that even if the methodology used in this case was generally accepted, it was subjective, and, therefore, the court had to determine whether it was applied in a reliable manner. Finally, the defendant argues that the lack of recorded methodology and Jachimowicz’ failure to record the type of tests he had performed rendered his testimony “incapable of assisting the jury in any meaningful way because [it] could not independently assess whether his methods were reliable and, thus, his ultimate conclusions valid.”

The state argues, and we agree, that the defendant failed to establish that the tool mark identification evidence involved an “innovative scientific technique” and, therefore, that Porter does not even apply. In State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), our Supreme Court held that “scientific evidence should be subjected to a flexible test, with differing factors that are applied on a case-by-case basis, to determine the reliability of the scientific evidence.” State v. Reid, 254 Conn. 540, 545, 757 A.2d 482 (2000). The court, however, did not define what constituted “scientific evidence,” thereby allowing the courts to maintain some flexibility in applying the test. As a result, a court’s initial inquiry should be “whether the [evidence] at issue ... is the type of evidence contemplated by Porter.” (Internal quotation marks omitted.) State v. Griffin, 273 Conn. 266, 276, 869 A.2d 640 (2005). In Porter, our Supreme Court noted that “some scientific principles have become so well established that an explicit . . . analysis [under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)] is not necessary for admission of evidence thereunder. . . . Evidence derived from such principles would clearly withstand a Daubert analysis, and thus may be admitted simply on a showing of relevance.” (Citation omitted; internal quotation marks omitted.) State v. Porter, supra, 85 n.30.

In the present case, the court found that it did not have to conduct a Porter hearing because the scientific principles of ballistics and firearms analysis are well established. Furthermore, the court held that “[t]ool marking is clearly a science and technology that can be measured, photographed, calibrated and enlarged.” As a result, the court found the evidence both reliable and relevant. In his brief, the defendant attempts to distinguish the process of tool mark identification that involves magazine marks from the general field of tool mark and firearm identification. The court did not abuse its discretion in concluding that the tool marking identification involving magazine marks is rehable and relevant as a part of the broader field of tool mark and firearm identification. There was ample evidence in the record to justify the court’s conclusion. On cross-examination, Stephenson stated that “[t]here’s only one method used, scientific method that we’ve all practiced and used within the field of firearms and tool mark identification, and that’s the comparison of two sets or more of random marks placed upon the contoured surfaces to compare those to find an agreement, a sufficient agreement between those two surfaces to make an individualization.” Furthermore, he stated that “[w]e all follow the same basic theory that an individual tool mark can be specified to an individual tool once we find that pattern agreement upon those surfaces of those two surfaces after we’ve made a conclusion of looking at those for the relative spatial relationship, size and number and quantity of those striae that are upon those surfaces.” Finally, Stephenson testified that “[t]he firearm is a subcategory of tool mark identification. The firearm now becomes a tool. The objects that come—that they come in contact with are the unknown or what you’re trying to identify back to the tool, i.e., the bullet to the barrel, the cartridge casing to the magazine, the cartridge case to the firearm, the breach, the extractor, the ejector, the firing pin. Those all become tools that come in contact with those surfaces. And it’s all based on an identification of those unique patterns of striated or impressed marks upon those surfaces.” Stephenson’s testimony reveals that identifying marks made on the magazine by the cartridge casings is merely a subset of the science of firearm and tool mark identification, which has been well established and admissible evidence under prior case law. See State v. Miles, supra, 97 Conn. App. 239 (firearm and tool mark examiner testified that bullet recovered from victim had been fired from gun recovered near scene of shooting); State v. Miller, 95 Conn. App. 362, 367, 896 A.2d 844 (firearm and tool mark examiner testified that two bullets recovered were fired from same firearm, that bullet fragments recovered were consistent with being fired from same type of firearm as those two bullets and that four, nine millimeter cartridges were fired from same firearm), cert. denied, 279 Conn. 907, 901 A.2d 1228 (2006). Because identifying the magazine markings is a subset of the well established and admissible science and practice of firearm and tool mark identification, the court did not have to subject evidence related thereto to a Porter hearing. As a result, we conclude that the court did not abuse its discretion in refusing to hold a Porter hearing.

V

Finally, the defendant claims that the court improperly consolidated the two informations for trial. We disagree.

The following factual and procedural history is relevant to the disposition of the defendant’s claim. In docket number CR04-0022869-T, the defendant was charged with attempt to commit murder, assault in the first degree, criminal possession of a pistol, criminal use of a firearm and illegal possession of a weapon in a motor vehicle. In docket number CR04-0023326-T, the defendant was charged with two counts of criminal possession of a pistol and possession of marijuana. The state filed a motion to consolidate the two informations for trial, and the defendant filed a motion objecting to consolidation. In support of his motion, the defendant argued that consolidating the two informations for trial would prejudice him significantly at trial. After considering the arguments and other relevant factors, the court granted the state’s motion, and the two informations were consolidated for trial.

General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.” See also Practice Book § 41-19. “In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . . The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions. . . . [Bjecause joinder foster[s] economy and expedition of judicial administration ... we consistently have recognized a clear presumption in favor of joinder and against severance . . . and, therefore, absent an abuse of discretion, we will not second guess the considered judgment of the trial court as to joinder or severance of two or more charges. . . .

“A court’s discretion regarding joinder, however, is not unfettered. The determination to try a defendant jointly on charges arising from separate cases may only be reached if consistent with the defendant’s right to a fair trial.” (Citations omitted; internal quotation marks omitted.) State v. Bell, 93 Conn. App. 650, 654-55, 891 A.2d 9, cert. denied, 277 Conn. 933, 896 A.2d 101 (2006).

In State v. Boscarino, supra, 204 Conn. 714, our Supreme Court identified several factors that a trial court should consider in making its determination of whether severance is required. “These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Internal quotation marks omitted.) State v. Ellis, 270 Conn. 337, 375, 852 A.2d 676 (2004). In the present case, the charges involved discrete, easily distinguishable factual scenarios. The events involving the assault were readily distinguishable from those involving the search of the defendant’s home, and, therefore, the jury would not have been confused by the consolidation of the two factual scenarios. Furthermore, the defendant conceded in his brief that the crimes were not brutal or shocking and that the trial was not lengthy. There were no Boscarino factors present that would have led the court to refuse to consolidate the two informations.

The defendant makes other arguments, however. He argues that consolidation prejudiced him for two reasons. First, the number of charges introduced at trial would have caused the jury to assume the defendant must have done something wrong. Second, the fact that the jury was aware that the defendant possessed several firearms illegally would have caused the jury to assume that he was a violent individual and was, therefore, more likely to be the shooter. Additionally, the defendant argues that the evidence from the search of his home, including the several firearms, ammunition and marijuana, was not relevant and would not have been admissible in the case involving the shooting. Finally, the defendant argues that the court never instructed the jury on the relevance of such evidence or limited its consideration of it.

We do not find these arguments persuasive. First, the state argues, and we agree, that the defendant’s possession of several firearms is evidence that would have been admissible in the case involving the assault due to the state’s need to demonstrate the defendant’s prior possession of at least two Makarov pistols. Additionally, the evidence regarding the seizure of the Makarov ammunition was relevant to and admissible in the case involving the assault. The state used the ammunition recovered from the defendant’s home, in addition to the victim’s identification of the defendant, to connect the defendant to the scene of the shooting. “Where evidence of one incident can be admitted at the trial of the other, separate trials would provide the defendant no significant benefit.” (Internal quotation marks omitted.) State v. McKenzie-Adams, 281 Conn. 486, 520, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007). In the present case, a significant portion of the evidence seized from the defendant’s home, which led to the charges in the second information, would have been admissible in the case involving the assault. Therefore, separate trials for each information would not have provided the defendant with any benefit.

Additionally, the defendant argues that evidence of his illegal possession of firearms would have led the jury to believe that he was a violent person. The jury, however, returned a verdict of not guilty with respect to the attempt to commit murder charge from the first information. This not guilty verdict with respect to the most serious charge demonstrates that the jury was able to consider the charges separately. See State v. Rodriguez, 91 Conn. App. 112, 120-21, 881 A.2d 371 (“Although the jury found the defendant guilty of all the counts of burglary, attempt to commit burglary, larceny and criminal trespass that it considered, it found the defendant not guilty of one count of breach of the peace in the second degree. That acquittal demonstrated that the jury was able to consider each count separately and, therefore, was not confused or prejudiced against the defendant.”), cert. denied, 276 Conn. 909, 886 A.2d 423 (2005); State v. Atkinson, 235 Conn. 748, 766, 670 A.2d 276 (1996) (“[m]oreover, by returning a verdict of not guilty on the charge of possession of a weapon in a correctional institution . . . the juiy evidently was able to separate the two cases and did not blindly condemn the defendant on his participation in the murder”). Because it has not been shown that separate trials would have benefited the defendant and it appears that the jury considered the charges separately, we conclude that the court did not abuse its discretion in consolidating the two informations for trial.

Finally, the defendant argues that the court neither instructed the jury that most of the evidence seized pursuant to the warrant was relevant only to the firearms case nor limited their consideration of it. As the state pointed out in its brief, however, the defendant did not ask for such a charge from the court. Nevertheless, the court did make certain statements during the charge, which served to negate any prejudice that may have resulted from the consolidation of these cases. First, the court stated that “[y]ou must not consider the information as any evidence whatsoever of the guilt of the defendant or draw an [inference] of guilt because he has been charged with a crime.” Additionally, the court stated that “[i]t is your duty to consider each charge or count separately.” The court also made it clear numerous times that to obtain a conviction of any crime charged, the state had the burden of proving beyond a reasonable doubt every material element of that crime.

The judgments are affirmed.

In this opinion the other judges concurred.

       There were two informations involved in this case. In docket number CR04-0022869-T, the defendant was acquitted of attempt to commit murder but convicted of assault in the first degree, criminal possession of a pistol, criminal use of a firearm and illegal possession of a weapon in a motor vehicle. In docket number CR04-0023326-T, the defendant was convicted of two counts of criminal possession of a pistol and possession of marijuana. Pursuant to the state’s motion, the two informations were consolidated for trial.

        State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).

       To protect the privacy of the juror, we refer to him by initial. See State v. Newsome, 238 Conn. 588, 624 n.12, 682 A.2d 972 (1996).

       Prior to oral arguments in this court, the defendant had not filed an amended appeal challenging the court’s denial of his postjudgment motion alleging juror misconduct, as is required by Practice Book § 61-9. Section 61-9 provides in relevant part: “Should the trial court, subsequent to the filing of the appeal, make a decision which the appellant desires to have reviewed, the appellant shall file an amended appeal form in the trial court within twenty days from the issuance of notice of the decision provided for in Section 63-1. . . .”

        One day after oral argument, on February 6, 2008, this court issued an order for supplemental briefs, requiring the parties to address whether the juror misconduct claim was reviewable in light of the defendant’s failure to file an amended appeal from the court’s denial of his posijudgment motion alleging juror misconduct. On February 7,2008, the defendant filed a motion for leave to file an amended appeal out of time, to which the state did not object and which this court granted. Consequently, the order for supplemental briefs was vacated. The defendant then filed the amended appeal form on February 21, 2008. Therefore, because the defendant has now complied with our rules of practice, this juror misconduct claim is reviewable by this court.

       Practice Book § 42-33 provides: “Upon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined. Subject to these limitations, a juror’s testimony or affidavit shall be received when it concerns any misconduct which by law permits a jury to be impeached.” See also General Statutes § 51-245.

         See State v. Santiago, 245 Conn. 301, 340, 715 A.2d 1 (1998) (“we deem it appropriate in all future cases in which a defendant alleges that a juror has made racial epithets . . . that the trial court should conduct a more extensive inquiry”).


author: LAVINE, J.

text:
    MICHAEL SACZYNSKI, JR. v. MICHAEL SACZYNSKI, SR.
    (AC 28613)
    McLacMan, Lavine and Berdon, Js.
    Argued April 30
    officially released July 29, 2008

      Gregory J. Sachs, for the appellant (plaintiff).

      LorindaS. Coon, with whom was Patrick J. Flaherty, for the appellee (defendant).
   Opinion

LAVINE, J.

In this negligence action, the plaintiff, Michael Saczynski, Jr., appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant, Michael Saczynski, Sr. The plaintiff claims on appeal that the court (1) improperly bifurcated the trial and (2) inadequately charged the jury. We affirm the judgment of the trial court.

The record includes the following facts and procedural histoiy. In March, 2003, the plaintiff lived in Bran-ford in a home he owned jointly with his daughter. Adjoining the property was a premises owned by the defendant, who is the plaintiffs father. The two properties shared a driveway. On March 6, 2003, the plaintiff fractured his ankle as he slipped and fell on ice in the driveway of the defendant’s property. He subsequently brought this negligence action against the defendant.

At a pretrial hearing on February 8, 2007, the court, Lager, J., sua sponte, ordered the trial bifurcated on the issues of liability and damages. The court’s explanation of the issues to be determined at the liability trial was as follows: “The jury will first be asked to determine, upon presentation of evidence about these facts and these facts alone, the following issues: the status of the plaintiff on the premises . . . [wjhether or not there was a specific defective condition on the property . . . that is, an accumulation of snow and ice; whether or not the defendant had actual or constructive notice of that specific defective condition; whether or not the defendant breached a duty of care owed to the plaintiff in that regard, that is, whether there was negligence; and if the jury concludes that the defendant was negligent, the jury will also be asked to determine whether or not the plaintiff was negligent in the way in which he approached that area on the date in question.”

The court noted the objection of the defense counsel to the bifurcation order at the pretrial hearing. Prior to the evidentiary portion of the liability trial, the court noted the objection of the plaintiffs counsel to the bifurcation. At no time was the court asked to provide an explanation of why bifurcation was ordered. On February 20, 2007, at the completion of the trial on liability, the jury returned a verdict in favor of the defendant. The jury was not asked to answer special interrogatories. This appeal followed.

I

The plaintiff first claims that the court abused its discretion when it bifurcated the liability and damages aspects of the trial without explaining its reasons for doing so. We do not agree.

Pursuant to General Statutes § 52-205 and Practice Book § 15-1, a trial court may order that one or more issues that are joined be tried before the others. “Bifurcation may be appropriate in cases in which litigation of one issue may obviate the need to litigate another issue. . . . The bifurcation of trial proceedings lies solely within the discretion of the trial court.” (Internal quotation marks omitted.) Dumas v. Mena, 82 Conn. App. 61, 64, 842 A.2d 618 (2004). Accordingly, “appellate review is limited to a determination of whether this discretion has been abused.” Swenson v. Sawoska, 18 Conn. App. 597, 601, 559 A.2d 1153 (1989), aff'd, 215 Conn. 148, 575 A.2d 206 (1990). “In reviewing claims that the trial court abused its discretion the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness; the ultimate issue is whether the court could reasonably conclude as it did . . . .” (Internal quotation marks omitted.) In re Jose C., 11 Conn. App. 507, 508, 527 A.2d 1239 (1987). “The interests served by bifurcated trials are convenience, negation of prejudice and judicial efficiency.” See Reichhold v. Hartford Accident & Indemnity Co., 243 Conn. 401, 423, 703 A.2d 1132 (1997), on appeal after remand, 252 Conn. 774, 750 A.2d 1051 (2000).

The plaintiff asks us to conclude that the court’s bifurcation order constitutes an abuse of discretion because it served to insulate the jury from information about his injuries and lost earning capacity. From a tactical viewpoint, the plaintiffs argument is understandable. From a legal viewpoint, however, it fails. See Swenson v. Sawoska, supra, 18 Conn. App. 601. One party’s damages do not affect the question of whether another party is liable. See McKiernan v. Caldor, Inc., 183 Conn. 164, 166, 438 A.2d 865 (1981) (court determined it was not necessary to consider claimed error relating to damages when verdict had absolved defendants from liability). Given the interests served by bifurcation, we cannot conclude that the court abused its discretion. In light of the broad discretion reposed in the court, the fact that neither party requested bifurcation does not change our conclusion.

Additionally, the plaintiff has failed to argue that the bifurcation order likely affected the result of the trial. See Borkowski v. Borkowski, 228 Conn. 729, 747, 638 A.2d 1060 (1994). A party is entitled to relief from a court’s allegedly improper rulings “only if . . . those rulings were harmful.” Id. For the foregoing reasons, the plaintiffs first claim must fail.

II

The plaintiffs second claim is that the court, Cos-grove, J., improperly charged the jury on the issue of nondelegable duty. Because the general verdict rule applies to this claim, we decline to afford it review.

“[T]he general verdict rule is a rule of appellate jurisprudence designed to further the general principle that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated. . . . Under the general verdict rule, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall. ... A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury.” (Citations omitted; internal quotation marks omitted.) Morales v. Moore, 85 Conn. App. 208, 210, 855 A.2d 1041 (2004).

In the present case, the defendant’s answer denied the allegation of negligence set forth in the plaintiffs complaint. The defendant’s special defense alleged that the plaintiffs negligence contributed to his injuries. During the administration of its jury charge, the court instructed the jury on both the defendant’s denial of the allegations and his special defense of contributory negligence. Either of these theories could have supported the jury’s general verdict.

“We repeatedly have held that when a plaintiffs claim alleges a defect in the instruction that relates only to the theory of negligence, leaving the contributory negligence route untainted, the general verdict rule applies.” (Internal quotation marks omitted.) Id., 211. Neither party submitted interrogatories to the jury, which returned a general verdict in favor of the defendant. Without interrogatories, we are not able to determine whether the jury found in favor of the defendant because the plaintiff failed to prove the allegations of the complaint or because the defendant prevailed on his special defense. We therefore must presume that the jury found every issue in favor of the defendant. See id.

The plaintiffs claim relates only to the jury’s finding that the defendant was not negligent. As a result, it fails to undermine the presumed finding of contributory negligence. Application of the general verdict rule precludes our review of the plaintiffs second claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claims that the court inadequately charged the jury on the issue of control. The plaintiff neither requested a charge on this issue nor objected to the charge that was given. Accordingly, his claim is not reviewable. “[A] claim of error in a jury charge may be preserved either by making a specific request to charge or by excepting properly to the charge as given.” Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 23, 717 A.2d 77 (1998); see Practice Book § 16-20.