author: DRANGINIS, J.

text:
    JANCIS L. FULLER v. COMMISSIONER OF CORRECTION
    (AC 22084)
    Dranginis, Landau and Shea, Js.

      Argued September 23, 2002
    officially released February 11, 2003

      Jancis L. Fuller, pro se, the appellant (petitioner).

      Madeline A. Melchionne, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   Opinion

DRANGINIS, J.

The petitioner, Jancis L. Fuller, appeals from the habeas court’s dismissal of her petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that the conditions of her confinement at York Correctional Institution in Niantic did not constitute cruel and unusual punishment within the meaning of the eighth amendment to the United States constitution. We disagree with the petitioner and affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of the petitioner’s appeal. The petitioner was charged with the crimes of attempt to commit murder, attempt to commit assault in the first degree and carrying a pistol or revolver without a permit in connection with events occurring on June 29, 1995. After a jury trial, she was sentenced to a total effective term of thirty years incarceration. This court affirmed the judgment of conviction in State v. Fuller, 56 Conn. App. 592, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000).

On November 10, 1998, the petitioner filed a pro se petition for a writ of habeas corpus, alleging that the conditions of her confinement violated the eighth amendment. Specifically, she argued that the respondent commissioner of correction inflicted cruel and unusual punishment on her by failing to have a housing classification system that separated violent and nonviolent prisoners. The petitioner further argued that the respondent’s practice of confining two inmates in the same cell (double celling) resulted in a loss of her privacy, subjected her to malodorous and unhealthy conditions, and required her to live with numerous cell mates who made threatening comments. Finally, the petitioner argued that the respondent acted with “deliberate indifference” when he failed to take appropriate preventive measures to protect her from being physically assaulted by an allegedly violent cell mate. In response, the respondent asserted that he did not violate the petitioner’s eighth amendment right, because he was unaware of an obvious risk to her health or safety. Following a two day evidentiary hearing, the court dismissed the petition and later granted a petition for certification to appeal. This appeal followed.

At the outset, we set forth our standard of review. “The conclusions reached by the trial court in its decision to dismiss the habeas petition are matters of law, subject to plenary review .... Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 65 Conn. App. 172, 175, 782 A.2d 201 (2001).

The eighth amendment, which applies to the states through the due process clause of the fourteenth amendment to the United States constitution; see, e.g., Rhodes v. Chapman, 452 U.S. 337, 344-45, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981); “prohibits detention in a manner that constitutes cruel and unusual punishment.” Hunnicutt v. Commissioner of Correction, 67 Conn. App. 65, 66, 787 A.2d 22 (2001). “Cruel and unusual punishment refers to punishment that involves the unnecessary and wanton infliction of pain or is grossly disproportionate to the severity of the crime.” Santiago v. Commissioner of Correction, 39 Conn. App. 674, 683, 667 A.2d 304 (1995). Under the eighth amendment, “prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates . . . .” (Citation omitted; internal quotation marks omitted.) Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). The gravamen of the petitioner’s claim is that the respondent’s failure to house violent prisoners separately from nonviolent prisoners created conditions of her confinement that were so potentially dangerous as to constitute cruel and unusual punishment. The petitioner claims that the respondent failed to protect her from an assault at the hands of her cell mate, who she alleges has had multiple convictions for violent crimes.

Every injury suffered, however, at the hands of an inmate does not necessarily translate into constitutional liability for prison officials. See id., 834. In challenging the conditions of confinement, the prisoner must meet two requirements. First, the alleged deprivation of adequate conditions must be objectively, sufficiently serious; id.; such that the petitioner was denied “the minimal civilized measure of life’s necessities . . . .” (Citation omitted; internal quotation marks omitted.) Wilson v. Seller, 501 U.S. 294, 298, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991). Second, the official involved must have had a sufficiently culpable state of mind described as “ ‘deliberate indifference’ ” to inmate health or safety. Farmer v. Brennan, supra, 511 U.S. 834. In that context, subjective deliberate indifference means that “a prison official cannot be found liable under the [e]ighth [a]mendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety . . . .” Id., 837.

Applying those standards to the facts of the present case, we agree with the court’s conclusion that the petitioner failed to allege facts demonstrating either the objective or subjective components of a valid eighth amendment claim. Our review of the record indicates that much of the evidence that the petitioner presented merely showed that the respondent had knowledge of the facts surrounding her assault, but does not support the objective element of “serious harm.” The court, in its memorandum of decision, confirmed that fact. It stated that it was “unable to make a conclusive finding concerning what transpired in the petitioner’s cell on February 15, 1996.” Nonetheless, the court stated that it did not “discount the possibility that [the petitioner] was involved in a physical altercation with her cell mate which resulted in the minor injuries which she sustained on that date. ” (Emphasis added.) With respect to the subjective element, however, the issue is not whether the respondent had knowledge of the attack. Rather, the evidence must show that the respondent had actual knowledge of a substantial risk of serious harm facing the petitioner and disregarded that risk by failing to take reasonable measures to abate that risk. See id., 837.

Under Farmer, the respondent has no liability if he can show “that [he] did not know of the underlying facts indicating a sufficiently substantial danger and that [he was] therefore unaware of a danger, or that [he] knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.” Id., 844. In other words, “the [respondent] must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [he] must also draw the inference.” Id., 837.

In this case, the court properly concluded that the respondent was not deliberately indifferent because he did not actually draw the inference that the petitioner was exposed to a specific risk of serious harm. Other than the report of the 1996 assault, the petitioner provided documentation regarding two previous complaints she had lodged with the respondent, but she never alleged in those complaints that she specifically had informed the respondent of a risk of violence against her from her cell mates or other inmates.

Even if we assume that the petitioner could have proven that the respondent had actual knowledge of the risk, we find nothing in the record other than the respondent’s reasonable responses to guarantee the petitioner’s safety. For example, after the altercation between the petitioner and her cell mate, the respondent took immediate corrective steps and transferred the offending cell mate to another unit.

The petitioner’s claim that a housing classification system would have eliminated the risk of assault is unavailing. Nothing in the record suggests that the petitioner would benefit from such a system in light of the nature of the charges that underlie her incarceration. Moreover, the record discloses that the cell mate about whom she complained, although a repeat offender, was not a violent offender. The record, therefore, supports the court’s conclusion that the conditions of the petitioner’s confinement did not rise to the level of a deprivation of a basic human need. Without such evidence, the petitioner has failed to demonstrate that the respondent acted with deliberate indifference to her health and safety.

We next examine the petitioner’s implicit argument that the double celling of inmates in and of itself violates the eighth amendment. That argument is without merit.

The United States Supreme Court explained in Rhodes v. Chapman, supra, 452 U.S. 347-50, that double celling inmates in units built to house only one inmate, by itself, does not result in any deprivation of basic human needs. The petitioner has only alleged that double celling made her incarceration uncomfortable, and she has not connected it to other conditions affecting a prisoner’s quality of life, such as inadequate food, improper medical care or deprivation of exercise. Therefore, we agree with the court that the deprivation was not “sufficiently serious” to demonstrate that the conditions fell beneath “the minimal civilized measure of life’s necessities.” Id., 347. We have no doubt that sharing a cell with another inmate may sometimes be uncomfortable; however, as the Supreme Court has stated, “the [constitution does not mandate comfortable prisons . . . .” Id., 349. “To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Id., 347. Therefore, we reject that portion of the petitioner’s claim and conclude that she has not alleged sufficient facts to constitute an eighth amendment violation. The court, therefore, properly dismissed the petitioner’s habeas petition.

The judgment is affirmed.

In this opinion the other judges concurred.

      The eighth amendment to the United States constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

       In its memorandum of decision, the court noted that the cell mate had convictions for larceny, possession and sale of narcotics, and violation of probation. Her criminal conviction record did not show convictions for any crimes of violence.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KWEKU J. HANSON
    (AC 22841)
    Lavery, C. X, and Schaller and Flynn, Js.
    Argued January 15
    officially released January 16, 2003

      Kweku J. Hanson, pro se, the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Judy A. Stevens, assistant state’s attorney, for the appellee (state).

       January 16,2003, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

PER CURIAM.

The defendant, Kweku J. Hanson, was charged by information with assault in the third degree in violation of General Statutes § 53a-61 and failure to appear in the second degree in violation of General Statutes § 53a-173. The charges stemmed from a domestic incident that allegedly occurred on July 18, 2001, between the defendant and Nicole Thompson. As a result of the incident, the defendant and Thompson were charged with misdemeanor assault offenses.

On February 20, 2002, the state entered a nolle on the assault charge, which was accepted by the court. The defendant objected and requested a dismissal of the charge. The court denied the defendant’s motion to dismiss. The prosecutor did not make, or attempt to make, any representations that a material witness had died, disappeared or become disabled, or that material evidence had disappeared or had been destroyed, thereby requiring additional investigation. See General Statutes § 54-56b; Practice Book § 39-30.

The defendant argues, and the state concedes, that it was incorrect for the court to allow the nolle to enter over the defendant’s objection without obtaining from the state the representations mandated by § 54-56b. See State v. Herring, 209 Conn. 52, 54-55, 547 A.2d 6 (1988). The only issue before this court is the proper remedy. The defendant argues that this court, using its supervisory powers, should directly dismiss the nolled assault charge. The state contends that this case is controlled by Herring and, therefore, the appropriate remedy is to remand the matter to the trial court. We agree with the state.

In Herring, our Supreme Court concluded that it was plain error for the trial court to allow a nolle to enter over a defendant’s objection unless the state made the required representation as required by § 54-56b. In discussing the appropriate remedy, the court stated: “That being so, we find error and remand this matter to the trial court with instructions to allow the state the opportunity to make the requisite representations to allow the trial court to determine whether nolles should enter as to the charges in question. ... If the state is unable or unwilling to make the requisite representations, the defendant is entitled to a dismissal of the charges or an immediate trial." (Citation omitted; emphasis added.) Id., 58-59. We conclude, therefore, that the present case is controlled by Herring.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

       The court dismissed the charge of failure to appear on January 30, 2002.

       The defendant also claims that if this court, does not dismiss the assault charge, it should transfer the case “to a different geographical area court for disposition.” The defendant failed to provide meaningful analysis of that claim; therefore, we deem it abandoned. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Beverly, 72 Conn. App. 91, 102, 805 A.2d 95, cert. denied, 262 Conn. 910, 810 A.2d 275 (2002).


text:
    ANGELA D. RAYMOND v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 20400)
    Dranginis, Landau and Shea, Js.

      Submitted on briefs October 31, 2002
    officially released February 18, 2003

      Nancy Burton filed a brief for the appellant (plaintiff).

      Victor Perpetua, appellate attorney, and Mitchell W. Pearlman, general counsel, filed a brief for the appellee (named defendant).

      Thomas W. Beecher and Francis J. Collins filed a brief for the appellee (defendant zoning commission).
   Opinion

DRANGINIS, J.

This administrative appeal returns to this court upon receipt of a response to this court’s order for articulation in Raymond v. Freedom of Information Commission, 67 Conn. App. 15, 787 A.2d 56 (2001). The issue to be determined is whether the trial court properly concluded that the defendant Freedom of Information Commission (commission) was substantially justified in dismissing the complaint of the plaintiff, Angela D. Raymond, and therefore properly denied her request for attorney’s fees pursuant to General Statutes (Rev. to 1995) § 4-184a (b).

Certain facts and procedural history of this case were set out in detail in our prior opinion. See Raymond v. Freedom of Information Commission, supra, 67 Conn. App. 17-21. We summarize them here in addition to other facts found by the court as set forth in its memorandum of decision. The genesis of this dispute is the plaintiffs claim that the defendant zoning commission of the town of Brookfield (commission) held an illegal meeting on June 13, 1996, in violation of the Freedom of Information Act. See General Statutes (Rev. to 1995) § 1-7 et seq., now § 1-200 et seq.

The plaintiff, therefore, appealed to the commission, pursuant to General Statutes (Rev. to 1995) § l-21i (b) (1), now § 1-206 (b) (1), alleging that she was denied the right to attend the meeting. Section l-21i (b) (1) requires that notice of appeal shall be filed within thirty days after the denial of a right.

The plaintiff commenced her appeal by sending a facsimile of her complaint to the commission on Saturday, July 13, 1996. The commission office was closed that day, but the commission received the complaint on the next business day, Monday, July 15, 1996. A hearing on the complaint was held before a hearing officer on February 11, 1997. At that time, the town questioned whether the appeal was timely, claiming that the appeal was not filed until July 15, 1996, more than thirty days after June 13, 1996. The hearing officer found that the complaint was received by the commission on July 15, 1996, and thus was untimely. The hearing officer, therefore, dismissed the appeal for lack of jurisdiction.

The plaintiff filed a motion to open the hearing with the commission on May 28, 1997. At a special session held on June 6, 1997, the commission denied the plaintiffs motion and adopted the hearing officer’s proposed final decision as its final decision. The commission did not act on the plaintiffs motion to open. The plaintiff thereafter filed a petition for reconsideration, which the commission denied.

The plaintiff then filed an administrative appeal in the Superior Court, challenging the commission’s decision that her complaint had not been timely filed. The plaintiff relied on § l-21j-15 of the Regulations of Connecticut State Agencies, as it existed at the time she filed her complaint, regarding the computation of any period of time referred to in the rules. The essence of the regulation is that when the last day of a period of time falls on a day the commission is closed, the appeal is timely if filed by the end of the next business day.

The court sustained the plaintiffs appeal, pursuant to the applicable standard of review; see Bezzini v. Dept. of Social Services, 49 Conn. App. 432, 436, 715 A.2d 791 (1998); determining that the office of the commission was closed on Saturday, July 13, 1996, and that the appeal period did not expire until the close of business on Monday, July 15,1996. The court, however, denied the plaintiffs request for attorney’s fees because the issue had not been adequately briefed and because the commission had acted with substantial justification. Thereafter, the plaintiff appealed to this court.

In her appeal, the plaintiff claimed that the court improperly concluded that the commission acted with substantial justification and that the court, therefore, improperly denied her request for attorney’s fees and costs. Following oral argument to this court, we concluded that the trial court improperly had determined that the plaintiff had failed to brief adequately her request for attorney’s fees. See Raymond v. Freedom of Information Commission, supra, 67 Conn. App. 23. We remanded the case to the trial court to articulate “the facts and circumstances constituting substantial justification for the commission’s actions with respect to the denial of the plaintiffs request for reasonable fees and expenses . . . .’’Id., 23-24. That remand required a different judge to issue the articulation. The trial court, Schuman, J., responded to that order without articulating.

Pursuant to our supervisory powers; see Practice Book § 60-2; and on the basis of our further review of the court’s initial articulation and the court’s memorandum of decision, we sua sponte vacate our order for further articulation. We resolve the merits of this appeal on the basis of the court’s memorandum of decision in which the court stated the procedural history of the plaintiffs appeal to the commission. It is on those facts that we reverse the court’s judgment with respect to whether the commission had substantial justification to dismiss the plaintiffs appeal and remand the case to the trial court for an evidentiary hearing with regard to attorney’s fees due the plaintiff, if any, pursuant to § 4-184a (b).

“The decision to award attorney’s fees for unjustified agency actions is within the discretion of the trial court. See General Statutes § 4-184a (b); Labenski v. Goldberg, 41 Conn. App. 866, 871, 678 A.2d 496, cert. denied, 239 Conn. 910, 682 A.2d 1002 (1996). Thus, § 4-184a (b) provides that the court may, in its discretion, award reasonable fees to the prevailing party if the court determines that the agency acted without any substantial justification. . . . Accordingly, we review the trial court’s decision to award attorney’s fees for abuse of discretion. State v. Reddick, 224 Conn. 445, 467, 619 A.2d 453 (1993) (reversal warranted where an abuse of discretion is manifest or where injustice appears to have been done). Burinskas v. Dept. of Social Services, 240 Conn. 141, 154-55, 691 A.2d 586 (1997).

“Section 4-184a (b) authorizes a court to grant attorney’s fees if it determines that the action of the agency was undertaken without any substantial justification. We recently have concluded that substantial justification . . . connotes reasonableness or a reasonable basis in law or fact. [Id., 156]. Thus, we have construed § 4-184a (b) as requiring an action that is entirely unreasonable or without any reasonable basis in law or fact. . . . Connecticut Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 401, 709 A.2d 1116 (1998).” (Internal quotation marks omitted.) Nagy v. Employees’ Review Board, 249 Conn. 693, 708-709, 735 A.2d 297 (1999). “Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary [adjudication] for which fees and other expenses are sought.” (Emphasis in original; internal quotation marks omitted.) Labenski v. Goldberg, supra, 41 Conn. App. 872.

The court noted paragraphs three through eleven of the hearing officer’s report in its memorandum of decision. The hearing officer found that the plaintiffs complaint was received by the commission on July 15,1996. The hearing officer cited § 1-2 li (b) (1) for the rule that a complaint must be filed within thirty days after the denial of a right. The hearing officer also cited §§ 1-2 lj22 and l-21j-30 of the Regulations of Connecticut State Agencies. Section 1-21J-22 provides that a complaint is deemed to have been filed on the date it is received by the commission. Section 1-21J-30 provides that a hearing commences on the filing of a complaint. The hearing officer concluded that, reading §§ 1-21J-22 and l-21j-30 together, the operative date for the commencement of this contested case was the date on which the complaint was filed, i.e., July 15, 1996. The hearing officer further concluded that the complaint had been filed beyond the thirty day time period permitted by § l-21i (b) (1).

Although the hearing officer considered the regulations in adjudicating this contested case, the officer failed to consider all of the applicable regulations, as noted by the court, specifically the regulation controlling the computation of the first and last day of any time period. Regs., Conn. State Agencies § l-21j-15. Section 1-21j-15 provides that if the last day of the time period is a day when the commission is closed, the period shall run until the end of the next following business day.

In this case, the court found that the commission had adopted the proposed final decision of the hearing officer at its June 6, 1997 special session. On June 24, 1997, the plaintiff filed a petition for reconsideration with the commission on the basis of an error of fact and law. The plaintiff specifically brought § l-21j-15 of the regulations to the attention of the commission. The commission denied the plaintiffs petition for reconsideration.

“Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . [A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference.” (Internal quotation marks omitted.) Nagy v. Employees’ Review Board, supra, 249 Conn. 701.

“Regulations, like statutes, do not exist in a vacuum.” (Internal quotation marks omitted.) Smith v. Zoning Board of Appeals, 227 Conn. 71, 92, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994). Regulations, as well as statutes, must be read as a consistent whole; Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, 73 Conn. App. 442, 462, 807 A.2d 1089, cert. denied, 262 Conn. 928, 814 A.2d 379 (2002); to avoid an absurd or irrational result. See In re Valerie D., 223 Conn. 492, 534, 613 A.2d 748 (1992). We presume that when a regulatory violation is brought to the attention of the agency responsible for the violation that the agency will correct the violation. See Pamela B. v. Ment, 244 Conn. 296, 331, 709 A.2d 1089 (1998).

Here, the commission had no fewer than three opportunities to determine whether the plaintiffs complaint was timely filed. In the first instance, this court might have excused the hearing officer’s failure to refer to § 1-21J-15 of the regulations in the proposed final decision as an oversight. In the second, this court possibly may have overlooked the commission’s failure to consider all of the regulations under which it is to conduct its business because it relied on the hearing officer’s proposed final decision. But see Newtown v. Kenney, 234 Conn. 312, 320, 661 A.2d 589 (1995) (final decision maker). The commission struck out on its third opportunity, however, when it denied the plaintiffs petition for reconsideration. In her petition, the plaintiff noted the commission’s factual determination that it had received her complaint on July 15, 1996, quoted the text of § 1-21j-15 of the regulations and provided analysis as to why the commission improperly adopted the hearing officer’s proposed final decision.

We conclude that there was no substantial justification for the commission to ignore the fact that it found that the plaintiffs complaint had been received on July 15,1996, and one of the regulations by which it conducts its legislative function, to deny the petition for reconsideration and to fail to open the contested hearing. We therefore reverse the judgment with respect to the plaintiffs prayer for attorney’s fees and remand the case to the trial court for a hearing in that regard.

The order for further articulation is vacated, the judgment is reversed as to the dismissal of the plaintiffs request for attorney’s fees and the case is remanded for an evidentiary hearing on that request.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 4-184a (b) provides: “In any appeal by an aggrieved person of an agency decision taken in accordance with section 4-183 and in any appeal of the final judgment of the superior court under said section taken in accordance with section 51-197b, the court may, in its discretion, award to the prevailing party, other than the agency, reasonable fees and expenses in addition to other costs if the court determines that the action of the agency was undertaken without any substantial justification.”

       General Statutes (Rev. to 1995) § l-21i (b) (1), now § 1-206 (b) (1), provides in relevant part: “Any person . . . denied any other right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, l-20a and 1-21 to l-21k, inclusive, may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial . . . .”

       Section 1-21J-15 of the Regulations of Connecticut State Agencies (Rev. to 1995) provides in relevant part: “Computation of any period of time referred 1o in these rules begins with the first day following that on which the act which initiates such period of time occurs, and ends on the last day of the period so computed. This last day of that period is to be included unless it is a day on which the office of the eommission is closed, in which

        event the period shall run until the end of the next following business day. . . .” (Emphasis added.)

       With respect to the plaintiffs appeal to this court, the commission no longer contends that the plaintiffs complaint was not timely filed and has not appealed as to the merits of the trial court’s decision. The commission filed a brief in support of the court’s denial of the plaintiffs request for reargument as to attorney’s fees. See Raymond v. Freedom of Information Commission, supra, 67 Conn. 21 n.6.


author: SCHALLER, J.

text:
    ARB CONSTRUCTION, LLC v. PINNEY CONSTRUCTION CORPORATION
    (AC 22233)
    Lavery, C. J., and Schaller and West, Js.
    Argued October 23, 2002
    officially released February 18, 2003

      Glenn T. Terk, for the appellant (defendant).

      Margaret Fogerty Rattigan, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Pinney Construction Corporation, appeals from the judgment rendered by the trial court in a breach of contract action awarding $149,616 to the plaintiff, ARB Construction, LLC. On appeal, the defendant claims that the court improperly (1) concluded that the contract between the parties was clear and unambiguous, (2) concluded that the defendant did not meet its burden of proof on its counterclaim that the plaintiffs work was unskillful, negligent or unworkmanlike and (3) prevented the defendant from introducing a site plan into evidence. We affirm the judgment of the trial court.

The court made the following factual findings in its memorandum of decision. “[The plaintiff] is owned and operated by Andrew Burnham. [The defendant] is owned and operated by Craig Pinney. On May 25, 1999, [the defendant] contracted with Silver Cove Associates, LLC (Silver Cove), to reconstruct and provide new construction at Silver Cove’s shopping plaza located at 150-210 Silas Deane Highway, Wethersfield, Connecticut (the plaza). Thereafter, on June 10, 1999, [the defendant], as general contractor, entered into a one page written contract with [the plaintiff], as subcontractor, for [the plaintiff] to perform a host of site excavation and preparation tasks at the plaza. When Burnham and Pinney met on June 10, 1999, to draw the contract, they had available to them a set of plans for the plaza, substantially as approved by the Wethersfield planning and zoning commission, including an existing conditions plan, a site plan, a grading and utility plan, a landscape plan, an erosion and sedimentation control plan, a roadway plan and two pages of construction details. By the terms of the written contract [the plaintiff] was to be paid in the lump sum amount of $430,000, less a credit of $80,000 for an unrelated job, for a total of $350,000. [The plaintiff] was to undertake and compíete the following tasks in accordance with the site plan: reclaimed parking lot, bituminous curbing, cut/ repour front concrete curb at plaza, sidewalks, cuts and fills, drainage, sewer, gas trenching, water, sprinkler and hydrant, electrical trenching with pipe included, remove and replace light poles, demolition/excavation rear loading docks and foundations, demolition masonry at overhead doors in rear, demolition bank building and landscaping.”

The plaintiff subsequently commenced work on the project. The plaintiff entered into a contract with Empire Paving, Inc. (Empire), to perform both the reclaiming and paving of the parking lot. The plaintiff was to be responsible for payment to Empire for the reclamation costs, and the defendant was to be responsible for the paving costs. The court found that the plaintiff contracted with Empire on behalf of the defendant only as a convenience.

The court concluded that paving was not included in the contract between the parties because the contract was clear and unambiguous that only a reclaimed parking lot was required. Furthermore, the court determined that the term “reclaimed parking lot” did not encompass paving. This appeal followed.

I

The defendant’s first claim on appeal is that the court improperly determined that the contract was clear and unambiguous as to the inclusion of paving. The defendant argues that the contract term “reclaimed parking lot” was an ambiguous term that required paving to be done, and, therefore, the plaintiff was responsible under the contract for the paving of the parking lot. We do not agree.

The defendant’s claim raises a mixed issue of fact and law. “A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” (Internal quotation marks omitted.) Putnam Park Associates v. Fahnestock & Co., 73 Conn. App. 1, 8, 807 A.2d 991 (2002). Where a technical or special meaning is intended by the language of the contract, that meaning, and not the language’s ordinary usage, shall be employed. See New England Petroleum Corp. v. Groppo, 214 Conn. 444, 450, 572 A.2d 970 (1990).

“Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. . . . Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Citation omitted; internal quotation marks omitted.) Putnam Park Associates v. Fahnestock & Co., supra, 73 Conn. App. 8. “When . . . the trial court draws conclusions of law ... we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Murphy, Inc. v. Remodeling, Etc., Inc., 62 Conn. App. 517, 522, 772 A.2d 154, cert. denied, 256 Conn. 916, 773 A.2d 945 (2001). Our standard of review, therefore, is plenary. See Aubin v. Miller, 64 Conn. App. 781, 790, 781 A.2d 396 (2001).

“Contract language is unambiguous when it has a definite and precise meaning about which there is no reasonable basis for a difference of opinion.” (Internal quotation marks omitted.) Christian v. Gouldin, 72 Conn. App. 14, 20, 804 A.2d 865 (2002). “A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Internal quotation marks omitted.) Mallozzi v. Nationwide Mutual Ins. Co., 72 Conn. App. 620, 628, 806 A.2d 97, cert. denied, 262 Conn. 915, 811 A.2d 1292 (2002). “[A] presumption that the language used is definitive arises when, as in the present case, the contract at issue is between sophisticated parties and is commercial in nature.” United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 670, 791 A.2d 546 (2002).

Here, the court engaged in a two step process in construing the contract. First, the court concluded that the contract was clear and unambiguous because paving was not expressly listed as a task to be performed on the contract. The plaintiff, therefore, was responsible for only a reclaimed parking lot. We agree with the court. The contract clearly lists the jobs to be performed, and paving is not listed. The contract is clear’ and unambiguous that only a reclaimed parking lot was required.

Because the contract clearly and unambiguously required a reclaimed parking lot, the court then proceeded to construe the contract according to that term. See Putnam Park Associates v. Fahnestock & Co., supra, 73 Conn. App. 8. That required the court to define reclaimed parking lot as it is used in the construction field. The court made the following factual finding in its memorandum of decision: “Reclaiming a parking lot means digging up the existing asphalt surface, including asphalt curbing and islands, and digging up the subsurface base to a depth of several inches. All the material is simultaneously dug up and ground up by a milling machine and deposited evenly over the compacted subsurface area. Depending upon the desired finished grade, the operator may then skim off some surface inches of the reclaimed material for use elsewhere or he or she may not. What remains of the parking lot is graded and rolled. That completes the reclaiming of the parking lot. . . . The reclaiming of a parking lot is entirely separate from the paving of a parking lot. . . . A reclaimed parking lot may remain in a reclaimed condition without any paving.”

The court’s determination of the special meaning of the term “reclaimed parking lot” is based on a finding of fact. We review the court’s finding of fact using the clearly erroneous standard. Id., 11. “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.) Id., 12.

The court’s definition of “reclaimed parking lot” is not clearly erroneous. Burnham testified that a reclaimed parking lot is “when you grind it up to a material that’s less than three inches in diameter.” That requires the use of a machine that “turns the pavement up” and “fluffs it.” The parking lot could be left in that condition without paving. The plaintiff’s expert, John R. Cullina, defined reclaiming as “a method of pulverizing or scarifying or removing the material with a machine that would place the material pulverized right behind the machine, fluffed up ... . And what it does is, it allows you to use this material for other . . . various uses.” The defendant’s expert, Deborah Brown, testified that reclaiming a parking lot included grinding up the old pavement and that this could be rolled over before paving to compact it and that it would then be overlaid with asphalt. Furthermore, Gary Zimmitti, the owner of Technical Excavation, stated that reclaiming includes pulverizing the old pavement, removing unsuitable reclaimed material, grading the reclaimed material and that then pavement would be laid down. Pinney defined reclaiming as pulverizing the old pavement, fluffing that material up and then rolling over that material. Finally, Douglas Burnham, a plaintiffs witness, testified that a reclaimed parking lot is one that is pulverized and that this material can be left in that state or paved over. On the basis of that evidence, we conclude that the court’s definition of “reclaimed parking lot” is not clearly erroneous.

The court made a legal deteimination that the contract clearly and unambiguously required only a “reclaimed parking lot” and not paving. It further made a factual conclusion as to the technical and special definition of “reclaimed parking lot” that did not include paving to give the contract effect according to that term. Accordingly, we conclude that the court did not improperly determine that the contract was clear and unambiguous and did not include paving.

II

The defendant next claims that the court improperly concluded that the defendant did not meet its burden of proof on its counterclaim that the plaintiffs work was unskillful, negligent or unworkmanlike. We disagree.

The defendant alleged in the second count of its counterclaim that the plaintiff was responsible for paving under the contract and that the plaintiffs failure to pave the parking lot rendered its work under the contract unskillful, negligent or unworkmanlike. In support of its claim on appeal, the defendant argues that due to the court’s improperly concluding that paving was not included in the contract, the court disregarded evidence of the paving and repair work that had to be completed by Zimmitti, another contractor.

A challenge to the court’s factual finding is reviewed under the clearly erroneous standard. Id., 11. Because we have concluded that the court properly determined that paving was not included in the contract, the defendant’s argument is without merit. The fact that the plaintiff was not responsible for paving prohibits a finding that the defendant satisfied its burden of proof on the second count of its counterclaim, which alleged that the plaintiff negligently had performed under the contract because of its failure to pave.

III

The defendant’s final claim on appeal is that the court improperly excluded from evidence a site plan, exhibit N for identification (exhibit N). The defendant argues that the court abused its discretion in excluding that exhibit because it limited the defendant’s cross-examination of Andrew Burnham regarding a single difference between exhibit N and site plans already in evidence. The defendant’s claim, however, is misplaced. The issue presented by the court’s evidentiary ruling is whether the court properly excluded evidence pursuant to its inherent power to sanction parties for failure to comply with its orders. We conclude that the court did not improperly exclude exhibit N.

The following additional facts are necessary for our resolution of the defendant’s claim. The defendant wanted to offer into evidence exhibit N. That exhibit consisted of site plans that the defendant allegedly had provided to the plaintiff, which, in turn, it allegedly provided to Empire to prepare an estimate for paving at the plaza. Already in evidence was another set of site plans, which differed from exhibit N in only one respect. The plaintiff had requested that certain documents be produced beginning in October, 2000, including any site plans. On February 14, 2001, the plaintiff filed a supplemental memorandum of law in support of its motion for default for the defendant’s failure to respond to the plaintiffs requests for production. In that memorandum of law, the plaintiff reiterated its request for any plans relating to the plaza. On April 3, 2001, the court, Graham, J., granted the plaintiffs motion for default for the defendant’s failure to respond to discovery requests, giving the defendant five weeks for full compliance. On May 25, 2001, the plaintiff filed a motion for noncompliance and request for entry of default. On June 1, 2001, the court, Graham, J., ordered sanctions against the defendant and precluded the introduction of evidence produced thereafter in support of the defendant’s counterclaim.

After the first day of trial on June 1, 2001, the defendant contacted Empire and requested any site plans it possessed. Empire did have site plans and forwarded them to the defendant. These became exhibit N for identification. Those plans had not been disclosed to the plaintiff until they were offered on the second day of trial on June 6, 2001. The defendant offered exhibit N as a full exhibit during the cross-examination of Andrew Burnham, but the plaintiff objected, arguing that the exhibit had not been produced during discovery and was in violation of the June 1, 2001 pretrial order.

In its ruling on the evidence, the court stated: “[M]y ruling is that that document will be precluded because it has not been produced in a timely fashion with regard to discovery . . . .” The defendant then offered the exhibit again through Frank Machado, a paving estimator for Empire who admitted that those were the plans the plaintiff had provided to him. The court sustained the plaintiffs objection to that offer as well.

“We have long recognized that, apart from a specific rule of practice authorizing a sanction, the trial court has the inherent power to provide for the imposition of reasonable sanctions, to compel the observance of its rules. . . . Our trial courts have the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct, even in the absence of a specific rule or order of the court that is claimed to have been violated.” (Citations omitted; internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 9-10, 776 A.2d 1115 (2001).

“In order for a trial court’s order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear. In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court’s intended meaning. This requirement poses a legal question that we will review de novo. Second, the record must establish that the order was in fact violated. This requirement poses a question of fact that we will review using a clearly erroneous standard of review. Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion.” Id., 17-18.

Our review of the record demonstrates that the court’s imposition of a sanction excluding the introduction of exhibit N, which was not produced at any time during discovery, was proper. First, the order that the defendant had to comply with was reasonably clear. Clearly, the defendant was on notice from October, 2000, until June 1, 2001, that the plaintiff desired plans relating to the plaza. On April 3, 2001, the court ordered full compliance within five weeks. The defendant does not argue that it was unaware of the order or the requests for the plans, but rather that it did not have the plans in its possession. There is no indication that the order to comply fully with the plaintiffs discovery request was unclear in any way.

Second, the record demonstrates that the April 3, 2001 pretrial order was violated by the defendant. The court had evidence of the pretrial order for full compliance with the plaintiffs request for plans relating to the plaza, the failure of the defendant to produce the evidence in question at that time, the failure of the defendant to make any attempt to contact Empire during discovery concerning the existence of the plans and the production of exhibit N only on the second day of trial. That evidence supports the court’s conclusion that the discovery order was violated by the defendant when it failed to timely produce the requested plans, and, therefore, the court’s conclusion is not clearly erroneous.

Finally, the court did not abuse its discretion in imposing the sanction of precluding the evidence from trial because the sanction was proportional to the violation. The defendant only contacted Empire after the first day of trial to inquire whether it had site plans instead of during the months of discovery prior to trial during which the defendant had the knowledge of the court’s pretrial order for full compliance and the plaintiffs request for any existing site plans. The production of exhibit N on the second day of trial was unreasonably late. Accordingly, the court did not improperly impose the exclusionary sanction on the defendant for violating the full compliance pretrial order.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant refers in its brief to several pieces of evidence that allegedly demonstrate that the intent of the parties was to include paving under the term “reclaimed parking lot.” Our ultimate conclusion, however, which is that the court properly determined that the contract was clear and unambiguous, makes analysis of those arguments unnecessary. “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) Putnam Park Associates v. Fahnestock & Co., 73 Conn. App. 1, 8, 807 A.2d 991 (2002). Because we conclude that the court was not clearly erroneous in its definition of “reclaimed parking lot,” the contract must be construed to exclude paving, and, therefore, arguments of a contrary intent are irrelevant.
      The defendant also argues that the court improperly failed to consider exhibit B in its construction of the contract. Exhibit B consisted of a contemporaneous writing between the parties of a list of the items in the contract with a price estimate for each. The defendant argues that this exhibit would aid the court in resolving ambiguities in the contract. There is no indication in the record that the court failed to consider this exhibit when reaching its legal conclusions. In fact, exhibit B was a full exhibit to which the court had access in construing the contract.

       The defendant argues that the word “reclaimed” should be given its ordinary dictionary meaning. From the testimony at trial, however, it is apparent that “reclaimed” has a technical meaning in the construction field.

       Even if we were to conclude that the contract or the term “reclaimed parking lot” was ambiguous, the court’s judgment still would be affirmed. “When there is ambiguity, we must construe contractual terms against the drafter.” (Internal quotation marks omitted.) Rund v. Melillo, 63 Conn. App. 216, 222, 772 A.2d 774 (2001). The evidence demonstrates that Pinney, on behalf of the defendant, drafted the contract, and, therefore, the meaning of “reclaimed parking lot” would be construed in favor of the plaintiff.

       Although we do not address the issue, we note that cross-examination is an absolute right afforded to the parties in a civil case. Dubreuil v. Witt, 65 Conn. App. 35, 40-41, 781 A.2d 503 (2001). “Our standard of review of a claim that the court improperly limited the cross-examination of a witness is one of abuse of discretion. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . .
      “In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Citations omitted; internal quotation marks omitted.) Id., 41^42.
      Here, the defendant provided no analysis or argument in its brief or at trial detailing how the exclusion of exhibit N prevented it from adequately cross-examining Andrew Burnham, nor is that evident from our review of the record. The defendant simply asserts that it wanted to explore the difference between the two site plans, but the defendant failed to indicate at trial or on appeal what that difference was or how it was important to its cross-examination of Andrew Burnham.
      “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis.” (Internal quotation marks omitted.) McEnerney v. United States Surgical Corp., 72 Conn. App. 611, 620 n.9, 805 A.2d 816, cert. denied, 262 Conn. 916, 811 A.2d 1292 (2002). Therefore, any possible review of the defendant's claim of infringement on the right to cross-examination would not be undertaken, given the inadequate briefing supplied by the defendant.

       In its appellate brief, the defendant asserts that exhibit N was “the set of site work plans that Andrew Burnham provide to Empire Paving so that Empire Paving could prepare an estimate for paving for [the plaza].” The evidence produced at trial, however, casts serious doubt on that assertion. The defendant asked the plaintiff to obtain an estimate for the paving at the plaza in April, 1999. The plaintiff contacted Empire to perform an estimate, and Empire provided its estimate on April 13, 1999. That estimate was relayed from the plaintiff to the defendant on April 29, 1999.
      The plaintiff asserted at trial that it did not receive any plans until May, 1999, and that Empire provided its estimate simply by visiting the site. The defendant stated that it provided the plaintiff with either the April 15 or April 27, 1999 version of the plans. Empire, on the other hand, stated that the plaintiff provided it with plans to perform its estimate when it visited the site. Exhibit N consisted of revised, though not approved, plans through April 27,1999. If those were the plans that the defendant gave to the plaintiff, then it would be impossible for Empire to have them when it provided its estimate to the plaintiff on April 13, 1999. Therefore, any argument that the plaintiff had possession or knowledge of those plans is weakened by the lack of evidence in the record that the plaintiff in fact gave those plans to Empire.

       The defendant argues on appeal that the court, improperly based its evidentiary ruling on the June 1, 2001 pretrial order. The court, however, stated in its ruling that it was “not . . . changing in any way the order entered by [the court:] last Friday.” In addition, after reviewing the pretrial order', the court stated that its ruling was not in conflict with that order.

         Exclusion of designated matters from evidence is one example of a sanction a court may impose. See Practice Book § 13-14 (b) (4).


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. YOLANDA DUBOSE
    (AC 21999)
    Foti, Mihalakos and Hennessy, .Is.

      Argued October 29, 2002
    officially released February 18, 2003

      Gerald L. Harmon, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John M. Waddock,
      supervisory assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Yolanda Dubose, appeals from the judgment of conviction, rendered after a jury trial, of two counts of arson in the first degree in violation of General Statutes § 53a-lll (a) (3) and (4). On appeal, the defendant claims that (1) the trial court improperly instructed the jury as to the concept of proof beyond a reasonable doubt, (2) the court improperly charged the jury on the identification of the defendant, (3) the court improperly charged the jury regarding an element of the offense, (4) the state produced insufficient evidence to establish the requisite element of intent and (5) certain remarks made by the prosecutor during cross-examination of the defendant and during closing argument to the jury amounted to prosecutorial misconduct. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 19, 1995, the defendant, who at the time was an eighteen year old single mother, purchased property located at 115 Rosette Street in New Haven. The defendant moved into the home and, after living there for a short time, became progressively concerned with drug activity and crime in the neighborhood. There were also several instances in which the defendant’s residence had been broken into. Furthermore, the defendant became concerned with the property’s poor sewage and plumbing, as well as lead paint in the premises. After just one month of residing at 115 Rosette Street, the defendant allowed the homeowner’s insurance policy on the property to expire.

In February, 1996, the defendant visited the city of New Haven’s office of housing and neighborhood development (city) and applied for a rehabilitation loan. The city notified the defendant that she could not obtain such a loan without first securing insurance on the property. Thereafter, the defendant visited a local insurance carrier to secure the required insurance on the property. The defendant was particularly interested in the “loss of use” coverage contained within the insurance policy. After the defendant purchased the necessary insurance, the defendant returned to the city and provided the necessary documentation to a case manager to acquire the loan. The city, however, declined to grant the loan. Foreclosure proceedings commenced on June 24,1996, because the defendant failed to make her mortgage payments. Shortly thereafter, the defendant moved into a relative’s residence.

On September 6, 1996, at approximately 2:40 a.m., the New Haven fire department received an anonymous telephone call that there was a fire at the 115 Rosette Street residence. Firefighters responding to the scene found the doors locked and upon entry noticed a heavy smell of gasoline. Investigators later determined that the fire had been started intentionally.

Thereafter, two eyewitnesses, Ernest Harper and Keith Randolph, came forward with information regarding the incident. Harper and Randolph reported to police that between 12:45 a.m. and 3 a.m. on September 6, 1996, they witnessed the defendant park her blue vehicle on the one-way street along the side of the residence. The defendant then proceeded to open the trunk of the vehicle, remove a square container and enter the premises. A few minutes later, the defendant exited the property and just moments later, smoke and fire emerged from the house.

The state charged the defendant with arson in the first degree. The case was tried before a jury and on November 20, 2000, it returned a verdict of guilty. The court sentenced the defendant to a total effective prison term of twelve years, suspended after seven, with five years probation. This appeal followed. Additional facts will be provided as necessary.

I

The defendant first claims that she was deprived of a fair trial because the court improperly instructed the jury on the concept of proof beyond a reasonable doubt. Specifically, the defendant claims that the court improperly charged that (1) reasonable doubt is “proof by sufficient evidence to overcome the presumption of innocence on her part,” (2) “[i]t is not required that the state prove the defendant guilty beyond all possible doubt,” (3) “[t]he burden of proving her guilt beyond a reasonable doubt requires the state to produce sufficient evidence to create in your minds a strong and abiding conviction of the guilt of the defendant,” (4) “[a] reasonable doubt is not a captious or frivolous doubt, nor is it a doubt which is raised by the ingenuity of a juror and unwarranted by the evidence, nor is it a doubt prompted by sympathy for the defendant,” (5) “[a]bsolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty to authorize a conviction” and (6) “[b]ut for the safety and well being of society and the protection of life and property, the state is concerned with securing the conviction of people who have been proved by the evidence beyond a reasonable doubt to be guilty of committing a crime or crimes charged against that person.” We reject the defendant’s claims.

The defendant concedes that the issue was not preserved at trial because she failed to submit a requested jury charge and failed to object to the court’s instruction. She seeks review, however, under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review the claim under Golding because the record is adequate for our review, and a claim that challenges the propriety of jury instructions on the law of reasonable doubt is of constitutional magnitude. State v. Green, 62 Conn. App. 217, 242, 774 A.2d 157 (2001), aff'd, 261 Conn. 653, 804 A.2d 810 (2002); see State v. Solman, 67 Conn. App. 235, 239, 786 A.2d 1184 (2001), cert. denied, 259 Conn. 917, 791 A.2d 568 (2002).

“Our Supreme Court’s standard of review regarding claims of improper jury instruction is well established. [A] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Citation omitted; internal quotation marks omitted.) State v. Person, 60 Conn. App. 820, 825-26, 761 A.2d 269 (2000), cert. denied, 255 Conn. 926, 767 A.2d 100 (2001); see also State v. Lemoine, 256 Conn. 193, 202-203, 770 A.2d 491 (2001).

On the basis of our review of the charge in its entirety, we conclude that the court’s instructions did not mislead the jury. The court’s instructions were correct in law, adapted to the issues and sufficiently guided the jury on the law of reasonable doubt by providing clear and concise instructions. Furthermore, this court and our Supreme Court have upheld instructional language identical to the language complained of here. See, e.g., State v. Morant, 242 Conn. 666, 687 n.13, 701 A.2d 1 (1997) (upholding language that “[i]t is not required that the state prove the defendant guilty beyond all possible doubt”); State v. Mejia, 233 Conn. 215, 242 n.20, 658 A.2d 571 (1995) (upholding language that “but for the safety and well-being of society and the protection of life and property, the State is concerned in securing the conviction of persons who have been proven by the evidence beyond a reasonable doubt to be guilty of committing the crimes charged”); State v. Ross, 230 Conn. 183, 221, 646 A.2d 1318 (1994) (upholding language that “proof which leaves you with a strong and abiding conviction that the accused is guilty”), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); State v. Ryerson, 201 Conn. 333, 343 n.2, 514 A.2d 337 (1986) (upholding language that “[a]bsolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty to authorize a conviction”); State v. Boykin, 27 Conn. App. 558, 572, 609 A.2d 242 (upholding language that “reasonable doubt is not a captious or frivolous doubt nor is it a doubt raised by the ingenuity of counsel or by a juror and unwarranted by the evidence; nor is it a doubt prompted by sympathy for the defendant”), cert. denied, 223 Conn. 905, 610 A.2d 179 (1992); State v. Iovieno, 14 Conn. App. 710, 726 n.9, 543 A.2d 766 (upholding jury instruction containing language that “proof by sufficient evidence to overcome the presumption of innocence on his part”), cert. denied, 209 Conn. 805, 548 A.2d 440 (1988). Consequently, the defendant’s claim fails to satisfy the third prong of Golding because it fails to establish that a constitutional violation clearly existed and clearly deprived her of a fair trial.

II

The defendant argues that the court improperly instructed the jury on identification of the defendant. The defendant advances two arguments in support of her claim. She first argues that although the state’s two witnesses had criminal records and were not credible, the court refused to charge the jury as to the possibility of fabrication by those witnesses. The defendant next argues that the court failed to charge the jury on mistaken identity, a theory raised by the defendant.

With regard to the fabrication argument, we initially note that the defendant properly preserved that issue by way of her exception to the court’s charge. Applying the standard of review set forth in part I, we conclude, however, on the basis of our review of the charge as a whole, that the court’s charge was proper and adequately covered the dangers of witness misidentification and fabrication. The record reveals that the court sufficiently addressed the issue of witness credibility, witness dishonesty and untruthfulness. The court instructed the jury to consider witness credibility relative to the witnesses’ abilities to observe, their attitude and demeanor on the witness stand, and their powers of observation, judgment, recollection and any prejudice or bias. The court specifically instructed the jury that “[i]f . . . you should conclude that a witness has not only testified inaccurately, but that he or she has done that intentionally or wilfully, in other words lied to you, that fact would cast a very serious doubt upon all of that witness’s testimony.” (Emphasis added.) Furthermore, the court reminded the jurors that the state’s two eyewitnesses, Harper and Randolph, were convicted felons and that the jury could find that this status affects their credibility. The charge was clear, concise and it adequately guided the jury.

The defendant additionally argues that the court did not charge the jury on the theory of mistaken identity and seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40, because she failed to take exception or request a charge to the jury. We will review the claim because the record is adequate for review, and “[i]t is settled law that a defendant who has produced evidence supporting a legally recognized defense is entitled, as a matter of law, to a theory of defense instruction, and that the denial of such an instruction is a violation of due process.” State v. Small, 242 Conn. 93, 104, 700 A.2d 617 (1997). We conclude, however, that the defendant has failed to establish that a constitutional violation clearly existed and clearly deprived her of a fair trial and, therefore, her claim fails to satisfy the third prong of Golding.

The court instructed the jury a follows: “[T]he defendant denies that she was the person who was involved in the commission of these offenses. She is thus raising the question of mistaken or inaccurate identity. Identification is a question of fact for you to decide, taking into consideration all of the evidence that you have seen and heard in the course of the trial. The state has the burden of proving beyond a reasonable doubt that the defendant was the perpetrator of the crimes. You, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict her. . . . The identification of the defendant by two or even one witness as the one involved in the commission of a crime may be sufficient to justify a conviction of such a person provided, of course, that you are satisfied beyond a reasonable doubt of the identify of the defendant as the one who committed the crime. In arriving at a determination as to the matter of identification, you should consider all the facts and circumstances that existed at the time of the observation of the perpetrator by the witnesses and all the other evidence that bears on the question of identification.” (Emphasis added.)

Furthermore, the court reiterated that charge by subsequently stating: “I again emphasize that the burden of proof on the prosecution extends to every element of the crime charged, and this specifically includes the burden of proving beyond a reasonable doubt the identification of [the defendant] as the perpetrator of the crimes with which she stands charged. In short, you must consider the totality of the circumstances affecting the identification. If, after examining the testimony, you have a reasonable doubt as to the accuracy of the identification, then you must find the defendant not guilty.” After reviewing the court’s charge in its entirety, we conclude that it properly instructed the jury with regard to the theory of mistaken identity. See State v. Whipper, 258 Conn. 229, 283, 780 A.2d 53 (2001) (considering nearly identical language contained in court’s mistaken identity charge). We conclude that the charge regarding identification of the defendant was sufficient to guide the jury and that her claim fails to satisfy the third prong of Golding.

Ill

Next, the defendant claims that she was deprived of a fair trial because the court improperly instructed the jury regarding an essential element of the crime. Specifically, the defendant contends that the court’s instruction regarding the element of substantial risk of injury pursuant to § 53a-lll (a) (4) is so broad and vague that the element is satisfied anytime a firefighter responds to a fire. Because the defendant failed to preserve her claim at trial, she seeks Golding review.

We will review the claim because the record is adequate for review, and the claim that the jury was not instructed on an essential element of an offense is of constitutional magnitude. See State v. Denby, 235 Conn. 477, 483-84, 668 A.2d 682 (1995); State v. Padua, 73 Conn. App. 386, 399, 808 A.2d 361 (2002). We conclude that the defendant has failed to establish that the alleged constitutional violation clearly existed and clearly deprived her of a fair trial. Her claim, therefore, fails to satisfy the third prong of Golding.

On the basis of the principles previously set forth, regarding claims of instructional error, we view the jury instruction as a whole. It is evident that the court gave a thorough instruction on the elements of the crime of arson pursuant to § 53a-lll (a) (4), including the element of substantial risk of injury. The court instructed the jury that “[t]he first element of this offense is that the defendant started or caused a fire or explosion .... The second element is that the state must prove that the defendant specifically intended to destroy or damage a building. . . . The third element that the state must prove . . . beyond a reasonable doubt is that at the scene of the fire or explosion, a firefighter was subjected to substantial risk of bodily injury. . . . A substantial risk of injury is one that is real, considerable and material.”

On the basis of our review of the court’s charge as whole, we conclude that the instructions sufficiently guided the jury on the element of a substantial risk of injury so that no injustice resulted. “Where a statute uses language that requires no legal definition because it has a commonly accepted meaning, there is no need to define it for the jury.” State v. Wall, 40 Conn. App. 643, 670, 673 A.2d 530, cert. denied, 237 Conn. 924, 677 A.2d 950 (1996). Merriam-Webster’s Collegiate Dictionary (10th Ed. 1999) defines “substantial” as “real” and “considerable,” and courts often have defined the word “substantial” in that way. See Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 359, 736 A.2d 824 (1999) (defining “substantial”); Fisette v. DiPietro, 28 Conn. App. 379, 384, 611 A.2d 417 (1992) (same); State v. Silano, 204 Conn. 769, 777 n.3 & 778, 529 A.2d 1283 (1987) (same). The court provided ample guidance to the jury as to the meaning of “substantial.” Accordingly, we conclude that the defendant cannot prevail on her claim under the third prong of Golding because she has not established that a constitutional violation clearly exists that clearly deprived her of a fair trial.

IV

Next, the defendant claims that the state failed to produce sufficient evidence to establish the requisite element of intent, as required by § 53a-lll. Specifically, the defendant argues that her right to a fair trial was violated under the fourteenth amendment to the United States constitution and the constitution of Connecticut, article first, § 8, because the evidence was insufficient to establish that she possessed specific intent.

“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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“The question on appeal is not whether we believe that the evidence established guilt beyond a reasonable doubt, but rather whether, after viewing the evidence in the light most favorable to sustaining the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . While the jury may not speculate to reach a conclusion of guilt, [it] may draw reasonable, logical inferences from the facts proven to reach a verdict. . . . Deference is given to the trier of fact who had the opportunity to observe the conduct, demeanor and attitude of the trial witnesses and to assess their credibility.” (Internal quotation marks omitted.) State v. Jimenez, 73 Conn. App. 664, 666, 808 A.2d 1190, cert. denied, 262 Conn. 929, 814 A.2d 381 (2002).

In the present case, the state presented ample evidence and testimony from which the jury could reasonably infer that the defendant possessed the requisite intent to destroy the building. On October 19, 1995, the defendant purchased the property located at 115 Rosette Street in New Haven and, within a short time, was faced with significant problems. The interior was contaminated with lead paint. There was faulty plumbing and problems with the sewage system. The building was located in an area where crime and illegal drug activity was prevalent. In addition, the city refused to give her a loan so that she could rehabilitate the property. Shortly thereafter, the bank began foreclosure proceedings when she failed to make her mortgage payments.

On the basis of the evidence previously recited, as well as the testimony of Harper and Randolph, the jury reasonably could have inferred and concluded that the defendant possessed the requisite intent to destroy the building and to collect on her insurance by starting a fire. Accordingly, the state produced sufficient evidence to support the jury’s verdict of guilty.

Y

Finally, the defendant claims that the prosecutor engaged in prosecutorial misconduct. First, she claims that the prosecutor improperly asked her on cross-examination to comment on the veracity of other witnesses. Second, the defendant claims that statements made by the prosecutor in closing argument to the jury were improper. Consequently, the defendant claims that she was deprived of a fair trial under the due process clauses of both the United States and Connecticut constitutions.

“We first note that our review of the defendant’s claims must be bifurcated because only one of them was preserved properly at trial by objection. . . . The defendant . . . requests review under State v. Golding, [supra, 213 Conn. 239-40], for [her] unpreserved [claim] . . . . Accordingly, we review the defendant’s claims of prosecutorial misconduct in two parts.” (Citation omitted.) State v. Johnson, 71 Conn. App. 272, 284, 801 A.2d 890, cert. denied, 261 Conn. 939, 808 A.2d 1133 (2002).

A

We first address the preserved claim. The defendant argues that the prosecutor improperly questioned her on cross-examination regarding the veracity of other witnesses who had testified.

“The standard of review for a claim of prosecutorial misconduct is well established. [T]o deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Internal quotation marks omitted.) State v. Beverly, 72 Conn. App. 91, 96, 805 A.2d 95, cert. denied, 262 Conn. 910, 810 A.2d 275 (2002).

“In order to determine whether claims of prosecutorial misconduct amounted to a denial of due process, we must decide whether the challenged remarks were improper, and, if so, whether they caused substantial prejudice to the defendant.” (Internal quotation marks omitted.) Id. “The defendant bears the burden of proving that the prosecutor’s statements were improper in that they were prejudicial and deprived him of a fair trial. ... In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court . . . has focused on several factors.” (Internal quotation marks omitted.) State v. Sostre, 73 Conn. App. 848, 852, 809 A.2d 1141 (2002), cert. denied, 262 Conn. 942, 815 A.2d 673 (2003). “The ultimate question is . . . whether the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process. . . . This final determination requires . . . the consideration of several factors: the extent to which the misconduct was invited by defense conduct or argument, the severity of the misconduct, the frequency of the misconduct, the centrality of the misconduct to the critical issues in the case, the strength of the curative measures adopted and the strength of the state’s case.” (Citation omitted; internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 723, 793 A.2d 226 (2002); see also State v. Whipper, supra, 258 Conn. 262-63.

It is a “well established evidentiary rule that it is improper to ask a witness to comment on another witness’ veracity.” State v. Singh, supra, 259 Conn. 706. That is because such questions not only invade the province of the jury, in that determinations of credibility are for the jury to decide, but those questions also have no probative value because they are not helpful to the jury in assessing witnesses’ credibility. Id., 707-708.

The transcript reveals that defense counsel, on direct examination, asked the defendant to recall several instances of other witnesses’ testimony. Later, on cross-examination, the prosecutor questioned the defendant’s recollection of other witnesses’ testimony and inquired whether her version was significantly different from the previous testimony given by the other witnesses. Although the prosecutor improperly asked the defendant to comment on other witnesses’ veracity, the prosecutor’s questioning occurred just once and was not prejudicial to the defendant because the court sustained the defendant’s objection and the prosecutor proceeded with another line of inquiry. Additionally, the state had a very strong case against the defendant. We conclude that the defendant has failed to demonstrate that the prosecutor’s questioning of her was prejudicial or that the misconduct was so serious that it deprived her of a fair trial.

B

Finally, we address the defendant’s unpreserved claim that the prosecutor’s statements during closing argument to the jury were improper. The defendant claims that the prosecutor’s comments regarding witness credibility invaded the province of the jury.

“We review the claim because the record is adequate to do so, and an allegation of prosecutorial misconduct in violation of the defendant’s fundamental right to a fair trial is of constitutional magnitude.” State v. L’Minggio, 71 Conn. App. 656, 675, 803 A.2d 408, cert. denied, 262 Conn. 902, 810 A.2d 270 (2002). We conclude, however, that the defendant’s claim fails to satisfy the third prong of Golding because the prosecutor’s remarks did not deprive her of a fair trial.

“We have long held . . . that Golding review of such a claim will not result in reversal where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial . . . because in such a case the claimed misconduct is insufficient to infect the fundamental fairness of the trial itself. ... In determining whether a prosecutor’s conduct was so egregious as to deny a defendant a fair trial, we note that some leeway must be afforded to the advocates .... Furthermore, in considering the defendant’s prosecutorial misconduct claim, we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Citations omitted; internal quotation marks omitted.) State v. Johnson, supra, 71 Conn. App. 288.

A thorough review of the transcript and record reveals that the prosecutor encouraged the jurors to use their common sense when evaluating the evidence, and the testimony and credibility of all testifying witnesses, including that of the defendant. Even if we were to conclude that the statements were improper, they were isolated and bxief, caused no prejudice to the defendant and did not constitute a pattern of misconduct that was blatantly egx-egious or violated the defendant’s right to a fair trial. Accordingly, we conclude that the defendant’s claim fails to satisfy the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-lll (a) provides in relevant part: “A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and . . . (3) such fire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss; or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily ipjury.”

       “Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two steps in the Golding analysis address the reviewability of the claim, while the last two steps involve the merits of the claim. . . . The appellate tribunal is free ... to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Solman, 67 Conn. App. 235, 238, 786 A.2d 1184 (2001), cert. denied, 259 Conn. 917, 791 A.2d 568 (2002). “In the absence of any one of the four Golding conditions, the defendant’s claim will fail.” State v. Andresen, 256 Conn. 313, 325, 773 A.2d 328 (2001).

       The following colloquy took place regarding the identification charge: “The Court: . . . [A]ny exceptions?
      “[Defense Counsel]: I’m not particularly crazy about the identification charge . . . because it doesn’t seem to take into consideration that those individuals who claimed to have identified my client may in fact—
      “The Court: Didn’t take into consideration what?
      “[Defense Counsel]: That those individuals who have identified my client-“The Court: Yeah?
      “[Defense Counsel]: — they may in fact be deliberately misstating the truth. I mean, the whole identification goes to the opportunity to observe, motive, all that, but it doesn’t have anything in there about fabrication.
      “The Court: There was no request to charge on identification, and I think the charge was adequate. No corrections to the charge.”

       That is commonly referred to as a Telfaire instruction. See United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972).

       The defendant claims that this specific instraction improperly advised the jury regarding identification.

       Although the defendant’s brief cites General Statutes § 53a-111 (a) (3), the statutory language quoted and challenged throughout her brief regarding the court’s improper jury instruction on the element of a substantial risk of injury pertains to the language found in § 53a-111 (a) (4). We therefore consider the defendant’s claim to challenge § 53a-111 (a) (4) rather than § 53a-111 (a) (3).

       In support of her claim that the court improperly charged the jury regarding an essential element of the crime, the defendant also argues that the state failed to produce sufficient evidence to support a jury finding that the element of a substantial risk of bodily injury was satisfied. We decline to review that claim because the defendant’s brief contains no legal authority or analysis to support her claim. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis.” (Citation omitted; internal quotation marks omitted.) In re Dorrell R., 64 Conn. App. 455, 469, 780 A.2d 944 (2001).

       According to General Statutes § 53a-lll (a), to be found guilty of arson in the first degree, a person must possess the “intent to destroy or damage a building . . . .” General Statutes § 53a-100 defines the term “building.”

       The defendant concedes that she failed to preserve her claim at trial and, therefore, seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40. “Unpreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime upon insufficient proof.” (Internal quotation marks omitted.) State v. Morgan, 70 Conn. App. 255, 281, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002). “Our Supreme Court, following the dictate of the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), has held that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim.” (Internal quotation marks omitted.) State v. Padua, supra, 73 Conn. App. 392.

       The defendant seeks Golding review although she objected to the prosecutor’s questioning in a timely manner. Because the claim was preserved properly at trial, Golding review is not necessary.

       The defendant specifically claims that the following questioning by the prosecutor was improper:
      “[Prosecutor]: And, ma’am, is it fair to say your version of what you recall differs fairly significantly from what a number of the other witnesses—
      “[Defense Counsel]: Objection. That’s—
      “The Court: Objection sustained.
      “[Defense Counsel]: — obviously for the jury.
      “The Court: Objection sustained. Not up to the witness to compare their testimony with other witnesses.
      “[Prosecutor]: Yes, Your Honor.
      “[Prosecutor]: Didn’t you in fact tell Detective [Joseph] Pettola and fire investigator [Frank] Dellamura that you had in fact left Connecticut the preceding Thursday? In other words, a week and a day before the fire took place? Didn’t you tel1 them that?
      “[Defendant]: No, I did not ....
      “[Prosecutor]: By the way, you’ve had a chance to hear all the witnesses here in court?
      “[Defendant]: Objection, Your Honor.”

       The defendant challenges the following portion of the prosecutor’s closing argument: “Like I said ... I would suggest to you it should offend your common sense that everybody else, by the defendant’s testimony and by [defense counsel’s] statements, is apparently either lying ornotto be believed or seriously mistaken. Not only were the investigating officials and — such as Detective [Joseph] Pettola, [fire investigator Frank] Dellamura and, I guess, [state police Trooper Michael] Laraia wrong, not only were Ernest Harper and Keith Randolph lying, but I guess . . . [other witnesses also] must have fabricated what they had to say in connection with this matter. And I, finally, I guess, if the defendant] is to [be] believed, even pictures lie.”