author: DUPONT, J.

text:
    BARRY HULTMAN ET AL. v. RICHARD BLUMENTHAL
    (AC 21369)
    Foti, Sehaller and Dupont, Js.
    Argued September 24, 2001
    officially released January 15, 2002

      Norman A. Pattis, with whom, on the brief, was Dawne Westbrook, for the appellant (plaintiffs).

      Mark F. Kohler, assistant attorney general, for the appellant (defendant).
   Opinion

DUPONT, J.

The plaintiffs, Barry Hultman and his mother, Dorothy Hultman, appeal from the judgment rendered in favor of the defendant, Richard Blumenthal, after the trial court granted the defendant’s motion to dismiss the plaintiffs’ cause of action for emotional distress arising from the defendant’s allegedly defamatory statements about the plaintiffs. The plaintiffs claim that the court improperly granted the motion, which was based on the lack of subject matter jurisdiction. The issue raised in the motion was whether the doctrine of sovereign immunity or the statutory immunity provided by General Statutes § 4-165 is a jurisdictional bar to the maintenance of the plaintiffs’ action. We conclude, as did the trial court, that the doctrine of sovereign immunity does apply and thereby deprives the court of subject matter jurisdiction.

The plaintiffs’ complaint is in four counts. The first and second counts allege that the defendant’s publication of a news release on the state of Connecticut attorney general’s Internet web site every day during the calendar year 1999 was defamatory as to the plaintiffs. The third and fourth counts allege that the defendant’s statement to a Hartford Courant newspaper reporter on or about December 15, 1998, was defamatory as to the plaintiffs.

Blumenthal is not described in the complaint as the attorney general of the state of Connecticut, but the defendant’s brief describes the defendant as the attorney general. The statements attributed to him are alleged to have been published on the attorney general’s web site, and the summons describes him as the attorney general.

The determination of whether subject matter jurisdiction exists is a question of law and, thus, our review is plenary. Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999); SLI International Corp. v. Crystal, 236 Conn. 156, 163-64, 671 A.2d 813 (1996). If the motion is accompanied by supporting affidavits containing facts, as is the case here, we review the case by looking at the content of the affidavits, as well as the complaint, to determine the jurisdictional issue, and we need not conclusively presume the validity of the allegations of the complaint. Shay v. Rossi, 253 Conn. 134, 140, 749 A.2d 1147 (2000); Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988); see also Practice Book § 10-31.

The judgment of dismissal in this case was based on the inferences to be drawn from the plaintiffs’ complaint, the additional evidence submitted by the defendant in this action, and the facts found in an administrative appeal entitled Hultman v. Dept. of Social Services, 47 Conn. Sup. 228, 783 A.2d 1265 (2000). In that case, the plaintiffs appealed to the trial court from an order of the department of social services (department) suspending them from the medicaid program and ordering restitution by the plaintiffs to the department of overpayments received by them. The court dismissed that appeal, and the plaintiffs did not appeal from that dismissal.

The first question to be resolved is whether, on the basis of the legal inferences to be drawn from the complaint, the facts found in Hultman v. Dept. of Social Services, supra, 47 Conn. Sup. 228, and the other evidence, the defendant is barred from using a defense of sovereign immunity.

The following procedural history and the facts that were before the trial court are relevant to our resolution of the plaintiffs’ appeal. From October 1, 1993, through September 30, 1995, Countryside Manor, Inc. (Countryside), was a long-term health care facility in Bristol that furnished goods and services to medicaid recipients. During that period, Dorothy Hultman was president of Countryside, and Barry Hultman was the administrator of Countryside.

The plaintiffs submitted cost reports to the department to allow the department to determine the rate of medicaid reimbursement to Countryside. The plaintiffs signed under oath those cost reports for the years 1994 and 1995. They certified that they had read the reports and that the information contained in the reports was “ ‘true and correct’ ” to the best of their knowledge “ ‘under the penalty of perjury.’ ” Id., 230. The reports also certified that all of the expenses cited in the reports were incurred to provide patient care at Countryside.

The department had a contract with Ernst & Young to audit the cost reports of long-term care facilities. Together, the department and Ernst & Young audited the cost reports for Countryside. When the audit was completed, Countryside was in bankruptcy, and the plaintiffs no longer were operating Countryside. The Bankruptcy Court had appointed a trustee and receiver-manager as administrator for Countryside. The trustee sent a preliminary draft of the audit report to the plaintiffs outlining the proposed disallowances and a letter offering the plaintiffs an opportunity to explain the proposed disallowances. The audit report states that the plaintiffs never paid, as they swore they had, $10,829 in payroll taxes and $678,509 in employee 401 (k) with-holdings. Barry Hultman responded that the audit report was not valid, but did not agree to meet with the department.

On April 4, 1997, the department issued to the plaintiffs a notice of regulatory violations and proposed sanctions. On April 17, 1997, the plaintiffs filed an answer denying each of the allegations in the notice issued by the department. Following a hearing before a hearing officer, the department ordered the plaintiffs to reimburse the department for the overpayments set forth in the notice of violations and suspended them from the medicaid program.

“At the hearings before the hearing officer, the plaintiffs were represented by counsel and had the opportunity to cross-examine the witnesses. The hearing officer made ninety-six specific findings of fact. Included were findings that the plaintiffs failed to maintain time records for Countryside employees, the salaries and wages paid to these employees were not supported by documentation, and salaries paid to these employees, including Barry W. Hultman, were not related to patient care. Among the costs in the cost reports that were disallowed were the expenses of a trip the plaintiffs made to India, meals bought at Hooters [restaurant], the purchase of guns and ammunition, and the cost of supplies and materials for the plaintiffs’ residence constructed at 82 Meadow Ridge in Avon.” Id., 232.

In this case, the defendant filed an affidavit from an assistant attorney general in connection with his motion to dismiss and the facts contained in that affidavit were identical to many of the facts found in Hultman v. Dept. of Social Services, supra, 47 Conn. Sup. 228.

On April 7,1997, the defendant, through the attorney general’s office, issued a news release. The defendant posted the news release on the attorney general’s web site. The news release contained the headline, “Blumenthal and Starkowski charge mother and son with allegedly blinking [sic] state of over $1 million in medicaid money in nursing home scheme.” Some of the relevant parts of the body of the article were:

“Attorney General Richard Blumenthal and Department of Social Services Deputy Commissioner Michael P. Starkowski today charged a mother and son who operated a Bristol nursing home with cheating the state out of more than $1 million in medicaid reimbursements. They allegedly used the money to help build their state-of-the-art, luxury home in Avon and for other personal expenses.
“Dorothy Hultman and Barry Hultman of Avon are accused of billing the state for approximately $1.15 million in medicaid reimbursements that they allegedly used for personal benefit— including $551,853 in salaries for people who built their home and payments to relatives and others who spent little or no time working at the Countryside Manor nursing home in Bristol.
“ ‘Our audit showed that the Hultmans pocketed money meant for medical care — looting programs designed to help our most vulnerable citizens,’ Blumenthal said. ‘Their luxury home in Avon was literally built on the backs of taxpayers and their self-dealing deprived people in real need of aid. This case is one of the most reprehensible and outrageous medicaid frauds we have seen. We want the money back and we want to shut these people out of the medicaid program.’ ‘This administration will not tolerate fraud or abuse in our programs, whether it be provider fraud, client fraud or fraud by any other participant in our programs,’ Starkowski said. ‘We cannot afford to have scarce dollars removed from the system by unscrupulous providers.’ The state is seeking sanctions against the Hultmans for violations of laws governing reimbursement of medicaid providers.”

On or about December 15, 1998, the defendant told a reporter for the Hartford Courant that the plaintiffs were guilty of the most “egregious” and “blatant” abuse of medicaid funds he had ever seen. On January 27, 2000, Barry Hultman was indicted on federal charges in connection with alleged embezzlement against a bankruptcy estate and theft concerning programs receiving federal funds, specifically the medicare and medicaid programs.

On appeal to this court, the plaintiffs argue that the defendant’s statements were “wanton, reckless or malicious” under § 4-165. The trouble with the plaintiffs’ argument is that the trial court did not reach the question of the immunity provided by § 4-165. The court did not reach that question because the immunity provided by § 4-165 does not apply if the doctrine of sovereign immunity does apply. See Shay v. Rossi, supra, 253 Conn. 164.

The doctrine of sovereign immunity protects state officials and employees from lawsuits resulting from the performance of their duty. The doctrine protects the state against lawsuits as well as protecting against liability, and “in effect, [it protects] against having to litigate at all.” Id., 166.

As previously noted, it is unclear from the plaintiffs’ complaint alone whether the plaintiffs are suing the defendant in his individual capacity or in his official capacity as the attorney general. The complaint does not describe him as the attorney general. As the court correctly noted, however, the identities of the parties are determined by their description in the summons. See General Statutes § 52-45a; Practice Book § 8-1 (a). The summons describes the defendant as “Attorney General,” and the plaintiffs repeatedly refer in their brief to the defendant as “Attorney General Richard Blumenthal.” “We have . . . recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state.” Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981).

Our Supreme Court has set forth criteria to determine whether an action is against the state or against a defendant in an individual capacity. The four criteria for an action against the state are: “(1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability.” Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975). The first two criteria are met because the defendant clearly is a state official, and the action involves his actions while representing the state of Connecticut. The third criterion is met because the liability for the damages sought is that of the state. The fourth criterion is met because any judgment against the defendant would operate to control the activities of the state, specifically the role of the attorney general’s office in informing the public. We conclude that the defendant is being sued as the attorney general in his official capacity, not personally.

Having concluded that the plaintiffs brought this action against the defendant in his official capacity, we must next determine whether the defendant’s actions are protected by the doctrine of sovereign immunity. In other words, we must decide whether his remarks were in excess of his authority as attorney general as established by General Statutes § 3-125. It is difficult to describe with “any degree of specificity” where the line should be drawn between an excessive use of authority and an appropriate use of authority. Shay v. Rossi, supra, 253 Conn. 172. The difference, according to Shay, is somewhere between two poles. Id. The first pole involves the same standard as is used in the determination of an abrogation of judicial immunity, where a judge must be acting so far outside the normal scope of judicial functions that the judge is no longer acting as a judge. See Stump v. Sparkman, 435 U.S. 349, 364, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978). The second pole involves a process of statutory interpretation examining whether a state official acted beyond the authority given to the official, that is, beyond the scope of the official’s authority. See Shay v. Rossi, supra, 171-72 n.22.

In Shay, the defendants raised the shield of sovereign immunity and the immunity of § 4-165. Our Supreme Court concluded that the facts alleged in that case did bring the state officials’ behavior significantly outside the normal scope of their authority. Id., 172. “[I]f the defendants here acted solely in order to justify their own prior unjustified conduct, and not to carry out the government policy with which they were entrusted, there would be no reason to provide immunity from suit.” Id., 174. Unlike the defendants in Shay, the defendant in this case was not acting to justify prior misconduct. The defendant was informing the public of an investigation duly conducted by his office and was carrying out the government policy of reporting to the public those facts that the attorney general claimed supported the allegations of medicaid fraud.

General Statutes § 3-125 does not specifically state that the attorney general may give statements to the press and issue press releases. One of the attorney general’s implied duties is, however, to inform the public of investigations and to give updates to the public concerning the cases handled by his office. As an elected constitutional official, the attorney general has a duty to inform the public of the matters occurring in his office. See Foster v. Pearcy, 270 Ind. 533, 536, 387 N.E.2d 446 (1979), cert. denied, 445 U.S. 960, 100 S. Ct. 1646, 64 L. Ed. 2d 235 (1980). As an elected official, his duty to the public may include expressions of his opinion about civil legal matters over which he has general supervision. Government officials who issue statements to the public in the course of their official duties are protected by the doctrine of sovereign immunity and, therefore, are immune from legal actions in connection with those activities. See Barr v. Matteo, 360 U.S. 564, 575, 79 S. Ct. 1335, 3 L. Ed. 2d 1434 (1959); Blake v. Rupe, 651 P.2d 1096, 1106 (Wyo. 1982), cert. denied, 459 U.S. 1208, 103 S. Ct. 1199, 75 L. Ed. 2d 442 (1983).

The defendant’s actions were conducted in the course of his duties as the attorney general. The press release issued by the defendant clearly states that the charges are “alleged.” The defendant’s statements directly deal with the charges made by the attorney general’s office and fall under the scope of his duty to inform the public.

The attorney general’s statements that the case involving the plaintiffs “was one of the most reprehensible and outrageous medicaid frauds we have seen,” and that the plaintiffs were engaged in the most “egregious” and “blatant” abuse of medicaid funds he had ever seen were based on his experience as attorney general since 1990. Such statements, in the context of the facts known to him, were presumably based on his ten years of experience as the chief enforcement officer of cases involving medicaid fraud.

“[I]n order to overcome sovereign immunity, the plaintiffs must do more than allege that the defendants’ conduct was in excess of their statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations.” Shay v. Rossi, supra, 253 Conn. 174-75. The plaintiffs in the present case have not sufficiently alleged or established any facts that the defendant’s conduct was in excess of his statutory authority.

The plaintiffs argue that the defendant’s behavior should be examined under the standard set forth in § 4-165, and maintain that the statements were made in an improper and unjustifiable manner or with improper motive. The standard set forth in § 4-165 does not apply to the current situation because liability under the statute only applies when the defendant has not established a defense of sovereign immunity. Id., 162-64. The doctrine of sovereign immunity does apply to the facts in this case and, therefore, § 4-165 is not applicable.

We conclude that the defendant’s motion to dismiss properly was granted because subject matter jurisdiction was lacking.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant, Richard Blumenthal, was the attorney general for the state of Connecticut at the time the events underlying this appeal occurred and at the time this decision was released.

       The doctrine of sovereign immunity implicates subject matter jurisdiction and is a basis for the granting of a motion to dismiss. Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996).

       General Statutes § 4-165 provides in relevant part: “No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment.....”

       The trial court did not reach the question of whether the statutory immunity of General Statutes § 4-165 applied, but stated in dicta that the defendant’s statements would not establish “wanton, reckless, or malicious” conduct.

       Even if the plaintiffs’ complaint was intended as one seeking relief from the defendant in his individual capacity, the defendant would not be precluded from invoking the doctrine of sovereign immunity. See Martin v. Brady, 64 Conn. App. 433, 436-38, 780 A.2d 961, cert. granted on other grounds, 258 Conn. 919, 782 A.2d 1244 (2001).

       Practice Book § 10-31 (a) provides in relevant part: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter .... This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.”

       The plaintiffs’ brief states that the sole issue is whether the “statements made to the press by the attorney general in relation to a civil case could not as a matter of law reflect malice.” That issue does not include the web site statements as alleged in the plaintiffs’ complaint and appears to address the issue of the statutory immunity of General Statutes § 4-165 rather than sovereign immunity.

       The plaintiffs also argue that the attorney general, acting as this state’s highest lawyer, had a responsibility to adhere to the Rules of Professional Conduct, and that his statements to the press violated the Rules of Professional Conduct concerning trial publicity and statements made outside the courtroom.
      This case, however, is not a review of a disciplinary hearing or the defendant’s conduct as an attorney. The preamble to the Rules of Professional Conduct provides in relevant part that a “[violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. . . .” Rules of Professional Conduct, Scope. Our courts also have held that a violation of the Rules of Professional Conduct is not a basis for an action against an attorney. Mozzochi v. Beck, 204 Conn. 490, 500-501, 529 A.2d 171 (1987); see Noble v. Marshall, 23 Conn. App. 227, 230, 579 A.2d 594 (1990).

       General Statutes § 52-45a provides in relevant part: “Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. . . .”

       Practice Book § 8-1 (a) provides in relevant part: “Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff’s complaint. . . .”

       General Statutes § 3-125 provides in relevant part: “The Attorney General shall have general supervision over all legal matters in which the state is an interested party, except those legal matters over which prosecuting officers have direction. He shall appear for the state, the Governor, the Lieutenant Governor, the Secretary, the Treasurer and the Comptroller, and for all heads of departments and state boards, commissioners, agents, inspectors, committees, auditors, chemists, directors, harbor masters, and institutions and for the State Librarian in all suits and other civil proceedings, except upon criminal recognizances and bail bonds, in which the state is a party or is interested, or in which the official acts and doings of said officers are called in question . . .

       Even if General Statutes § 4-165 were applied, the plaintiffs’ argument would not prevail. The conduct described as “wanton, reckless or malicious” in § 4-165 has the same meaning as when used in a common-law context. Shay v. Rossi, supra, 253 Corm. 181-82. “[Such conduct] is more than negligence, more than gross negligence. . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” (Internal quotation marks omitted.) Id., 181. The defendant’s conduct here does not approach such a level.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ALLEN ALTERISI v. COMMISSIONER OF CORRECTION
    (AC 20750)
    Schaller, Mihalakos and O’Connell, Js.
    Submitted on briefs September 12, 2001
    officially released January 15, 2002

      Robert Berke filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, Susan C. Marks, supervisory assistant state’s attorney, and Angela Macchiarulo, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Allen Alterisi, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the habeas court improperly (1) found facts and (2) concluded that he had failed to establish that he was denied the effective assistance of counsel.

The petitioner was convicted of five counts of sexual assault in the first degree and six counts of risk of injury to a child. We affirmed his conviction in State v. Alterisi, 47 Conn. App. 199, 702 A.2d 651 (1997).

The petitioner alleged, before the habeas court, that he was denied the effective assistance of counsel for several reasons. The petitioner claimed that his counsel had failed to advise him of a hearing conducted pursuant to State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988). The petitioner claimed that at the hearing, the court rendered orders concerning his rights to interview the witnesses against him prior to the videotaping of their testimony, to watch the videotaping of that testimony over closed-circuit television and, simultaneously, to communicate by telephone with his counsel who was participating in the hearing. He claimed that counsel failed to protest or in any manner to record an objection to this procedure. He claimed that because he was not able to communicate with counsel during the videotaping via telephone or any other electronic or simultaneous means that he was denied meaningful attorney-client communication during a critical stage of the proceedings against him.

He further claimed that his counsel failed to interview or attempt to interview the witnesses against him prior to the videotaping of their testimony. Additionally, the petitioner claimed that his counsel failed to elicit on cross-examination of a witness evidence of the witness’ conviction for assault against the petitioner to show bias. Furthermore, the petitioner claimed that his counsel failed to inform him in a timely manner of proposed plea bargains, which would have resulted in a significantly shorter sentence than he was serving. The petitioner also claimed that his counsel failed to present witnesses to testily that the petitioner never had behaved with them as he allegedly had behaved with the victims. The petitioner claimed that his counsel failed to present evidence of the petitioner’s physical inability to engage in sexual activity during times alleged in the charges against him. He further claimed that he suffered from a sexually transmitted disease at the time of the alleged sexual assault and that counsel failed to seek physical examinations of the complaining witnesses to demonstrate that they had no such disease. Further, the petitioner claimed that his counsel faded to object to the introduction of inadmissible, uncharged misconduct evidence and inadmissible hearsay evidence that was highly prejudicial.

The habeas court denied the petition for a writ of habeas corpus, concluding that “[a]fter a thorough consideration of the trial evidence in this case, the transcript and the arguments briefed, the court concludes that the petitioner has not satisfied the burden outlined above and that defense counsel was not ineffective in his defense of a very difficult case.” Certification to appeal was granted. This appeal followed.

“Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [wjhether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, [466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. . . .

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... In order ... to prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice. ... To prove that his counsel’s performance was deficient, the petitioner must demonstrate that counsel’s representation fell below an objective standard of reasonableness. . . . Furthermore, the petitioner must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Milner v. Commissioner of Correction, 63 Conn. App. 726, 737-38, 779 A.2d 156 (2001).

The petitioner failed to sustain his burden of proving that counsel’s performance was deficient and that he suffered actual prejudice. See Strickland v. Washington, supra, 466 U.S. 687. We conclude that the habeas court properly denied the petition for a writ of habeas corpus.

The judgment is affirmed.


author: O’CONNELL, J.

text:
    JOSEPH DISTEFANO v. RENEE DISTEFANO
    (AC 21399)
    Schaller, Mihalakos and O’Connell, Js.

      Submitted on briefs September 12, 2001
    officially released January 15, 2002

      Allan Scott Pickel and Laura-Ann Simmons filed a brief for the appellant (plaintiff).

      Thomas M. Shanley filed a brief for the appellee (defendant).
   Opinion

O’CONNELL, J.

The plaintiff, Joseph DiStefano, appeals from the judgment of the trial court denying his motion for modification or termination of periodic alimony. The plaintiff claims that the court improperly (1) refused to grant his request for a continuance when the defendant and her alleged cohabitant failed to produce subpoenaed documents, and (2) denied the plaintiffs motion for termination or modification of periodic alimony. We affirm the judgment of the trial court.

The following facts and procedural history are relevant. The court dissolved the parties’ marriage on October 14, 1998. The judgment of dissolution incorporated by reference an agreement that the plaintiff would pay alimony to the defendant, Renee DiStefano, in the amount of $1505.60 per month, to terminate upon the death of either party, remarriage of the defendant or cohabitation of the defendant “pursuant to statute,” whichever should occur first.

On September 7, 2000, the plaintiff filed a motion to modify or terminate the alimony payments, alleging that the defendant was cohabitating with another person. On the Friday prior to the Monday hearing date, without having made any previous requests for discovery, the plaintiff served two subpoenas duces tecum upon the defendant and her cohabitant for a voluminous quantity of documents. On September 18, 2000, the scheduled hearing date, the defendant requested a continuance, which the court granted, to October 2, 2000. During the hearing on October 2, the defendant and the alleged cohabitant testified that the cohabitant had been living in the defendant’s basement for the past three months and had moved his possessions to that basement. At the close of testimony, the plaintiff asked the court for a continuance because neither the defendant nor her cohabitant had produced all the documents listed in the subpoenas duces tecum. The request was denied.

Following the hearing on October 2, 2000, the court denied the plaintiffs motion, finding that, although the plaintiff had proven that the defendant was cohabitating with another person, he had not satisfied the additional requirement of proving that there was an alteration of the defendant’s financial needs. This appeal followed.

I

The plaintiff first claims that the trial court improperly denied his request for a continuance of the October 2, 2000 hearing because neither the defendant nor her cohabitant had produced all the documents requested in response to the subpoenas duces tecum served upon them. We are not persuaded.

“A trial court holds broad discretion in granting or denying a motion for a continuance. Appellate review of a trial court’s denial of a motion for a continuance is governed by an abuse of discretion standard that, although not unreviewable, affords the trial court broad discretion in matters of continuances. . . . An abuse of discretion must be proven by the appellant by showing that the denial of the continuance was unreasonable or arbitrary.” (Citation omitted; internal quotation marks omitted.) Hyllen-Davey v. Plan & Zoning Commission, 57 Conn. App. 589, 599-600, 749 A.2d 682, cert. denied, 253 Conn. 926, 754 A.2d 796 (2000).

In this case, the trial court clearly articulated at the October 2, 2000 hearing its reasons for denying the requested continuance. The court noted that the defendant’s cohabitant was present in court on September 18, 2000, and, thus, the plaintiff had the opportunity then to ask him why he had not complied with the subpoena and when the documents would be forthcoming. Addressing the plaintiff, the trial court stated that “when you start your hearing, you are supposed to have everything that you want, ready to go unless there’s surprise, and there’s been no surprise here, as you could have found out any of this material ahead of time.” Under these circumstances, we conclude that the trial court did not abuse its discretion in denying the plaintiffs request for a continuance.

II

The plaintiff also claims that the trial court improperly denied his motion to modify or terminate the alimony payments. We are not persuaded.

Our standard of review of the trial court’s decision regarding the plaintiffs motion is well settled. “A trial court is in an advantageous position to assess the personal factors so significant in domestic relations cases, and its orders in such cases will not be reversed unless its findings have no reasonable basis in fact or it has abused its discretion, or unless, in the exercise of such discretion, it applies the wrong standard of law. See Borkowski v. Borkowski, 228 Conn. 729, 739-40, 638 A.2d 1060 (1994); see also Fahy v. Fahy, 227 Conn. 505, 517, 630 A.2d 1328 (1993); McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981). [W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached. . . . Meehan v. Meehan, 40 Conn. App. 107, 110, 669 A.2d 616, cert. denied, 236 Conn. 915, 673 A.2d 1142 (1996). Trial courts have broad discretion in deciding motions for modification. Noce v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980). . . . Shearn v. Shearn, 50 Conn. App. 225, 227, 717 A.2d 793 (1998).” (Internal quotation marks omitted.) Grosso v. Grosso, 59 Conn. App. 628, 630-31, 758 A.2d 367, cert. denied, 254 Conn. 938, 761 A.2d 761 (2000).

In DeMaria v. DeMaria, 247 Conn. 715, 724 A.2d 1088 (1999), our Supreme Court recently addressed the issue raised in this case, namely, the burden of proof on a party seeking to have an alimony award modified on the basis of cohabitation. In reviewing the applicable statute, our Supreme Court stated: “Section 46b-86 (b) was an express grant of authority to modify or terminate alimony ‘upon [a] showing that the receiving party is living with another person and that such living arrangements result in a change of circumstances that alter the financial needs of such party.’ 20 S. Proc., Pt. 7, 1977 Sess., p. 2793, remarks of Senator Salvatore DePiano.” (Emphasis added.) DeMaria v. DeMaria, supra, 722.

In accordance with General Statutes § 46b-86 (b) and the holding in DeMaria, before the payment of alimony can be modified or terminated, two requirements must be established. First, it must be shown that the party receiving the alimony is cohabitating with another individual. If it is proven that there is cohabitation, the party seeking to alter the terms of the alimony payments must then establish that the recipient’s financial needs have been altered as a result of the cohabitation. “Because, however ‘living with another’ person without financial benefit did not establish sufficient reason to refashion an award of alimony under General Statutes § 46b-81, the legislature imposed the additional requirement that the party making alimony payments prove that the living arrangement has resulted in a change in circumstances that alters the financial needs of the alimony recipient. Therefore, this additional requirement, in effect, serves as a limitation. Pursuant to § 46b-86 (b), the nonmarital union must be one with attendant financial consequences before the trial court may alter an award of alimony.” DeMaria v. DeMaria, supra, 247 Conn. 720.

In this case, our review of the transcript discloses no evidence of any financial impact upon the defendant because of the alleged cohabitation. Thus, although the plaintiff established that the defendant was cohabiting with another person, the trial court did not abuse its discretion in determining that the plaintiff failed to show that the defendant’s cohabitation altered her financial need.

The judgment is affirmed.

In this opinion the other judges concurred.

       The statute governing the alteration or termination of alimony is General Statutes § 46b-86 (b), which provides in relevant part: “In an action for . . . dissolution of marriage ... in which a final judgment has been entered providing for the payment of periodic alimony ... the Superior Court may . . . modify such judgment . . . upon a showing that the party receiving the periodic alimony is living with another person . . . [and] the living arrangements cause such a change of circumstances as to alter the financial needs of that party.”

       The defendant and the cohabitant both testified that the defendant allowed the cohabitant to reside in the defendant’s basement, at no charge to the cohabitant.


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. WILLIAM D. PIERCE
    (AC 19474) (AC 19663)
    Mihalakos, Dranginis and Peters, Js.
    Argued September 21, 2001
    officially released January 22, 2002

      Richard Hustad Miller, special public defender, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Stephen Carney, assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

In this consolidated appeal, the defendant, William D. Pierce, appeals from the judgments of the trial court, rendered after jury trials, convicting him in one case of burglary in the second degree in violation of General Statutes § 53a-102 and with being a persistent serious felony offender in violation of General Statutes § 53a-40 and, in the second case, of three counts of burglary in the second degree, larceny in the third degree in violation of General Statutes § 53a-124 (b), two counts of larceny in the sixth degree in violation of General Statutes § 53a-125b (a) and with being a persistent serious felony offender in violation of § 53a-40. On appeal, the defendant claims that (1) Norwich police officers violated his right to be free from unlawful seizures under the constitution of Connecticut, article first, § 9, when they detained him in the town of Mont-ville and (2), in light of that illegal detention, the trial court improperly failed to suppress the defendant’s confession and burglary tools found at the scene as “fruit of the poisonous tree.” We affirm the judgments of the trial court.

The jury reasonably could have found the following facts relevant to our resolution of this appeal. The Norwich police department, relying on a tip from a citizen, was conducting an investigation and surveillance of the defendant in connection with a rash of burglaries in Norwich. The citizen reported seeing a suspicious person behind a building where some residential burglaries recently occurred. The citizen reported a vehicle that the police traced to the defendant. A criminal record check indicated that the defendant had a criminal history of burglary.

During the surveillance, the police followed the defendant’s vehicle into Montville, a neighboring town. There, the Norwich officers observed the defendant park in a residential neighborhood, exit the vehicle and begin walking through various nearby backyards. Meanwhile, the Norwich police officers contacted Troop E of the Connecticut state police and the Montville police department for assistance.

After about forty-five minutes of surveillance of the area where the defendant had parked, Robert Drozynski, a sergeant with the Norwich department, observed the defendant crouch behind a woodpile in one of the yards. When Drozynski approached, he noticed a crowbar, flashlight and a pair of gloves lying on the ground a few feet from the defendant. Drozynski, accompanied by another Norwich officer, Michael Blanchette, handcuffed the defendant and brought him to the side of the road. The Norwich officers called Leonard Bunnell, asergeant with the Montville police department, to the defendant’s location. Bunnell had been participating in the surveillance for approximately ten minutes from a post less than one minute away. Bunnell assumed control of the defendant’s investigative detention and, upon information from the Norwich police regarding the defendant’s actions and the burglary tools, arrested him for possession of burglary tools and brought him to the state police barracks in Montville. The Montville and Norwich police departments, acting in conjunction, conducted a further investigation in the area where the defendant was detained and learned that one of the houses had been broken into.

Later, two Norwich detectives interviewed the defendant at the barracks and elicited a fourteen page confession in which the defendant admitted to a burglary in Montville in the area where he was detained and to thirty-one other burglaries in Norwich and Montville. In his confession, the defendant named specific addresses and items taken from those residences. The state subsequently charged the defendant in connection with the thirty-two burglaries and the state proceeded in two criminal trials. The defendant was found guilty of all charges and sentenced to serve twenty years in prison. The defendant appealed from both judgments, and this court consolidated the appeals.

The defendant argues that the court improperly failed to suppress his statements and the alleged burglary tools on the ground that his detention had been illegal. Specifically, he contends that the detention violates article first, § 9, of the Connecticut constitution because the Norwich police officers did not have authority to make an extraterritorial investigatory stop in Montville. The state, while not conceding the illegality of the stop, argues in response that even if we assume that the Norwich police did not have authority to detain the defendant in Montville, the burglary tools and confession did not constitute “fruit of the poisonous tree,” and, furthermore, to the extent that they were, the misconduct was not egregious, the taint was sufficiently attenuated and the evidence was properly admitted. We agree with the state that, under the circumstances of this case, any illegality in the stop would not require dismissal of the charges against the defendant or a reversal of the judgments of conviction. We therefore need not reach the issue of the constitutionality of the defendant’s detention. See State v. Miller, 227 Conn. 363, 370, 630 A.2d 1315 (1993), citing State v. Fleming, 198 Conn. 255, 262-63, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).

The trial court made the following findings concerning the defendant’s motion to suppress: (1) the Norwich police conducted an extraterritorial investigation and stake-out of the defendant based on their information and belief that the defendant was a suspect in a series of burglaries; (2) the Norwich police acted “with the knowledge, the consent, the cooperation, and the presence of the Montville police department, and Sergeant Bunnell specifically”; (3) the actions of the Norwich police were based on a reasonable suspicion that the defendant had committed a crime or was about to commit a crime, and that suspicion was sufficient for the Norwich police to detain the defendant; and (4) the actual arrest of the defendant for possession of burglary tools was conducted by Bunnell.

We first set forth the standard of review for claims relating to a motion to suppress. “Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support; in the facts set out in the memorandum of decision .... Additionally, we are mindful of our authority to affirm a judgment of a trial court on a dispositive alternate ground for which there is support in the trial court record.” (Citation omitted; internal quotation marks omitted.) State v. Buddhu, 65 Conn. App. 104, 108, 782 A.2d 169 (2001).

“The purpose of the exclusionary rule is to penalize law enforcement officials by suppressing evidence obtained by illegal means in order to deter police conduct that tramples on the fourth amendment rights of citizens.” State v. Blackman, 246 Conn. 547, 555, 716 A.2d 101 (1998). “Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. ... All evidence is not, however, a fruit of the poisonous tree simply because it would not have been discovered but for the illegal action of law enforcement officials. . . . Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. . . . The initial determination is, therefore, whether the challenged evidence is in some sense the product of illegal government activity.” (Citations omitted; internal quotation marks omitted.) State v. Hammond, 257 Conn. 610, 626-27, 778 A.2d 108 (2001).

The United States Supreme Court in Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975), explained that the factors to be considered in determining whether the taint has been dissipated include whether Miranda warnings have been given, the temporal proximity of the illegal police action and the discovery of the challenged evidence, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Id., 603-604; see also State v. Ostroski, 201 Conn. 534, 546-47, 518 A.2d 915 (1986).

The first question we must consider, therefore, is whether, in light of all of the circumstances, the defendant’s incriminatory statements were obtained by the exploitation of the alleged illegality of the initial Terry stop of the defendant by the Norwich police. Although the defendant’s confession was given within a few hours of his arrest, after applying the factors of Brown v. Illinois, supra, 422 U.S. 603-604, to the present case, we conclude that the defendant’s confession was sufficiently attenuated from his arrest to be purged of any possible taint.

First, the record supports the finding that the defendant was advised of his Miranda rights on more than one occasion, that he knowingly waived those rights and that, because of his prior criminal history, he had a degree of understanding of criminal procedure. In fact, the defendant remarked that he would plead nolo contendere in order to avoid trial. Second, and perhaps more significantly, the Norwich police officers’ conduct did not rise to the level of flagrant and purposeful misconduct that would render the defendant’s confession inadmissible. The Norwich officers properly identified the defendant as a suspect and began a legitimate investigation and surveillance of the defendant. When the defendant entered Montville, the Norwich police followed and contacted Montville police for assistance. Because there were only three officers on duty at that time, the Montville police department sent Bunnell to assist the Norwich officers. Thereafter, Norwich officers stopped the defendant based on a reasonable and articulable suspicion that he had just committed a crime or was in the course of committing a crime. They then immediately handed the defendant over to Bunnell, who arrested the defendant. Under these circumstances, we cannot say that the conduct of the police was flagrant misconduct. Accordingly, we conclude that the defendant’s confession was properly admitted.

With respect to the burglary tools, the defendant argues that the Norwich police detained him illegally, and, therefore, the burglary tools, obtained as a result of the illegal detention, should have been suppressed. He argues that, if we accept the illegality of his detention, the burglary tools were obtained by the exploitation of the initial illegality and cannot be purged of the taint. In response, the state argues that even if the detention was illegal, the burglary tools were not a product of the initial detention because they were in plain view. We agree with the state.

“It is a basic principle of constitutional law that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions. . . . One such exception is the plain view doctrine.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Wright, 58 Conn. App. 136, 146, 752 A.2d 1147, cert. denied, 254 Conn. 907, 755 A.2d 884 (2000).

Our Supreme Court recently stated in State v. Eady, 249 Conn. 431, 437, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999), that warrantless seizures of contraband in plain Anew are reasonable under the fourth amendment if “ ‘(1) the initial intrusion that enabled the police to view the items seized [was] lawful; and (2) the police . . . had probable cause to believe that these items were contraband or stolen goods.’ ” See also State v. Nieves, 65 Conn. App. 212, 217, 782 A.2d 203 (2001). “[I]f contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no search within the meaning of the Fourth Amendment — or at least no search independent of the initial intrusion that gave the officers their vantage point.” (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 287 n.35, 764 A.2d 1251 (2001).

In this case, it is undisputed that the police saw the burglary tools on the ground a few feet from the defendant where the police were conducting a proper surveillance *of him. The defendant argues that the only reason the police saw the tools was because of his detention. We disagree. The detention did not produce the evidence. Rather, his detention was separate and apart from the seizure of the tools. See State v. Colvin, 241 Conn. 650, 658, 697 A.2d 1122 (1997) (discovery of cocaine in defendant’s vehicle had no connection to illegal detention where defendant’s actions during detention did not cause officer to look into his vehicle). This is not a situation where the tools were found on the defendant’s person during the detention, thereby implicating his privacy interests. We therefore conclude that the burglary tools were not the “fruit” of the allegedly illegal detention.

The judgments are affirmed.

In this opinion the other judges concurred.

       In his appellate brief, the defendant also argues that specific grants of police authority pursuant to the General Statutes do not permit police to conduct Terry stops outside their jurisdiction. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). At oral argument, however, the defendant stated that he was not relying on statutory provisions to establish that the detention was not legal. We, therefore, have only his constitutional claim before us.

       The defendant does not dispute that the police had a “reasonable and articulable suspicion” to conduct a Terry stop. In fact, he conceded at oral argument that had he been detained in Norwich, the stop would have been valid.

         Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

         The defendant does not assert that the Norwich police were acting outside their authority in conducting a surveillance of the defendant in Montville. See State v. Miller, supra, 227 Conn. 377 (extraterritorial stakeout and investigation not violative of article first, § 9, of constitution of Connecticut).

       The trial court did not address the plain view exception because it found that the initial detention was legal. We may still review this claim, however, because its factual basis is undisputed. See Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 794, 749 A.2d 1144 (2000) (court may affirm judgment on appeal on dispositive alternate ground where there is support in record). A determination of whether the discovery of the tools was before, after or contemporaneous with the defendant’s detention is not necessary for us to determine whether they are the product of the detention. See State v. Colvin, 241 Conn. 650, 659, 697 A.2d 1122 (1997).


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. VASHUN LEWIS
    (AC 20560)
    Mihalakos, Dranginis and Callahan, Js.
    Argued September 28, 2001
    officially released January 22, 2002

      H. Owen Chace, special public defender, for the appellant (defendant).

      Susan Maya, certified legal intern, with whom were Michael Dearington, state’s attorney, Rita M. Shair, senior assistant state’s attorney, and, on the brief, Richard L. Palombo, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Vashun Lewis, appeals from the judgment of conviction, rendered after a jury trial, of sale of narcotics in violation of General Statutes § 21a-278 (b) and sale of narcotics within 1500 feet of a public elementary school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that (1) there was insufficient evidence to convict him under § 21a-278a (b), (2) the trial court improperly denied his request to instruct the jury on mere presence and (3) the court improperly admitted an audiocassette tape into evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 19,1998, Detective Ian Case, a member of the statewide narcotics task force, was assigned as an undercover agent to purchase narcotics at 200 Winthrop Avenue, New Haven, in the vicinity of the Vincent E. Mauro School. Case purchased four bags of crack cocaine from a black male who was wearing camouflage style clothing. Case requested six more bags to complete the buy. Consequently, the black male shouted to someone in the house, and a second black male, who was wearing a tan jacket and a gold medallion, met the first black male and Case in the middle of the driveway and sold six bags of crack cocaine to Case.

As Case walked back to his unmarked police car, he described the two persons from whom he had purchased the drugs. The descriptions were relayed to the supervising officer, Detective Thomas Lokites, via a body microphone worn by Case. Minutes after Case left the scene, two uniformed police officers, Officer John Magoveny and Sergeant Raymond Hassett, arrived at 200 Winthrop Avenue. After speaking with two men fitting the descriptions provided by Case, Magoveny and Hassett met with Case and Lokites and told them that the second black male, who was wearing a tan jacket and gold medallion and who was on the property at 200 Winthrop Avenue, was the defendant. In the meantime, Case identified the defendant from a photographic array produced by Lokites containing approximately forty-one photographs.

Subsequently, the defendant was arrested on a warrant and charged in a substitute information with one count of sale of narcotics and one count of sale of narcotics within 1500 feet of apublic elementary school. At the conclusion of the evidence, the jury returned a verdict of guilty on both counts, and the court sentenced the defendant to a total effective term of ten years incarceration. This appeal followed. Additional facts and procedural history will be provided as necessary.

I

The defendant first claims that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that he had sold narcotics within 1500 feet of a public elementary school. Specifically, he argues that there was not sufficient evidence that the actual distance from the crime scene to the school was less than 1500 feet. We disagree.

“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.” (Internal quotation marks omitted.) State v. Burton, 258 Conn. 153, 175, 778 A.2d 955 (2001).

“The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . State v. Brown, 235 Conn. 502, 510-11, 668 A.2d 1288 (1995).” (Emphasis in original; internal quotation marks omitted.) State v. White, 64 Conn. App. 126, 132-33, 779 A.2d 776, cert. denied, 258 Conn. 910, 782 A.2d 1251 (2001). “In this process of review, it does not diminish the probative force of the evidence that it consists ... of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Carpenter, 214 Conn. 77, 79, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992).

To find the defendant guilty of the sale of narcotics within 1500 feet of a public elementary school in violation of § 21a-278a (b), it was necessary for the jury to have found all of the following elements to be proven beyond a reasonable doubt: (1) the defendant sold a substance, (2) the substance the defendant sold was cocaine, (3) the defendant knew that the substance he sold was cocaine, and (4) the sale occurred within 1500 feet of property on which a public elementary school was located.

The defendant claims that § 21a-278a (b) should be strictly construed against the state in accordance with the rule of lenity. He further argues that the state is required to prove the actual distance from the crime scene to the school. Direct numerical evidence, however, is not necessary. See, e.g., State v. Crosby, 36 Conn. App. 805, 820-21, 654 A.2d 371 (finding piece of paper to show gun was less than twelve inches sufficient), cert. denied, 232 Conn. 921, 656 A.2d 669 (1995).

The state’s expert witness testified that the distance from the southeast comer of the property at 200 Winthrop Avenue to the northwest comer of the property of the Vincent E. Mamo School is 1430 feet. In addition, the state introduced into evidence a photograph of the property. The point of sale of the narcotics was marked on the photograph, which also showed two vehicles parked in the driveway to assist the jury in evaluating how far the point of sale was from the property’s southeast comer.

From that evidence, the jury reasonably could have inferred that the sale of the narcotics was committed within 1500 feet of a public elementary school and that, accordingly, the state had proved that element of § 21a-278a (b) beyond a reasonable doubt. It would have been preferable for the state to have measured the entire distance from the property line of the school to the point of sale; however, the jury reasonably could have found that the distance from the comer of 200 Winthrop Avenue to the point of sale was not more than seventy feet, thereby placing the sale within 1500 feet of the school.

II

The defendant next claims that the court improperly refused to instruct the jury that it could not find him guilty because of his mere presence at the crime scene. He argues that the court’s refusal to grant his request to charge undermined the theory of his defense of misidentification and rendered the instructions inadequate as a proper guide to the jury. We disagree.

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rale that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . [this court] will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Corbin, 61 Conn. App. 496, 507, 765 A.2d 14, cert. granted on other grounds, 256 Conn. 910, 911, 772 A.2d 1124, 1125 (2001). Moreover, a mere presence instruction is not necessary when the jury is properly instructed on the elements of the crime and the evidence has established that the defendant’s involvement went far beyond mere presence. State v. Gasparro, 194 Conn. 96, 111-13, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985).

The court’s thorough instructions to the jury regarding identification and the elements of the crimes charged made a “mere presence” charge unnecessary. Taking the instructions in their entirety, we are satisfied that they were legally correct, sufficient for the juiy’s guidance and that no injustice resulted from the court’s refusal to give the requested jury instruction. Furthermore, a review of the record and the evidence presented convinces this court that a “mere presence” charge was not warranted.

Ill

The defendant’s final claim is that the court improperly admitted an audiocassette tape into evidence. He argues that the tape was inadmissible hearsay used to bolster Case’s direct testimony. The state argues that the tape was admissible because (1) it was proper identification testimony and (2) the defendant opened the door to its admission. The state further argues, in the alternative, that even if the tape improperly was admitted into evidence, it was harmless error. We conclude that even though the tape may not have been admissible, its admission was harmless.

“It is well established that a trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s 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.” (Citations omitted; internal quotation marks omitted.) State v. Soto, 59 Conn. App. 500, 505, 757 A.2d 1156, cert. denied, 254 Conn. 950, 762 A.2d 906 (2000).

The following additional facts and procedural history are relevant to our disposition of the defendant’s claim. At trial, Case identified the defendant as the man from whom he had purchased six bags of crack cocaine. He further testified that the man was a dark-skinned black male with short dreadlock hair who was wearing a tan jacket and a gold medallion. Case also testified that he had picked the defendant’s photograph out of a photographic array. The state first offered the tape for admission into evidence during Case’s direct testimony. The court denied the admission of the tape because it was a prior consistent statement.

Subsequently, Lokites testified that he had met with Magoveny and Hassett, and had given them the description of the clothing and the physical description Case had provided so that they could go to the property and identify anyone who was on the property immediately after the sale of the narcotics. On cross-examination, Lokites was asked about the different types of surveillance tools available and those commonly used for ■undercover drug operations. During the state’s redirect examination of Lokites, after a second offer, the court admitted the tape into evidence.

A

The state first argues that the statements on the tape are admissible as statements of identification and are not subject to exclusion as hearsay. We disagree. The statements on the tape are not proper identification testimony, but rather prior consistent statements.

“An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies. . . . Prior consistent statements of a witness are generally regarded as hearsay and are not admissible at trial, either for their truth or for the purpose of rehabilitating a witness’ damaged credibility.” (Citation omitted.) State v. Hines, 243 Conn. 796, 803, 709 A.2d 522 (1998); see also State v. Harris, 48 Conn. App. 717, 730, 711 A.2d 769, cert. denied, 245 Conn. 922, 717 A.2d 238 (1998). “In the normal course of events, the witness’ story is not made more probable or more trustworthy by any number of repetitions of it. State v. Valentine, 240 Conn. 395, 412-13, 692 A.2d 727 (1997).” State v. Harris, supra, 730.

Although the general rule is that prior consistent statements of a witness are inadmissible, we have recognized exceptions in certain circumstances. “Major exceptions include using the prior consistent statement to rehabilitate a witness who has been impeached by a suggestion of bias or interest arising subsequent to the prior statement; see State v. Jeffrey, 220 Conn. 698, 713-14, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992); by a suggestion of recent contrivance; see State v. Dolphin, 178 Conn. 564, 568 n.5, 424 A.2d 266 (1979); by a charge of faulty recollection; see State v. Anonymous (83-FG), 190 Conn. 715, 729, 463 A.2d 533 (1983); or by a prior inconsistent statement. See State v. Torres, 210 Conn. 631, 641, 556 A.2d 1013 (1989).” State v. Harris, supra, 48 Conn. App. 730-31. “Where the prior consistent statement becomes admissible, it may not be used as substantive evidence of the facts contained therein, but only to rehabilitate the credibility of the witness which has been attacked.” State v. Anonymous (83-FG), supra, 728.

Case identified the defendant during direct examination and testified that the defendant was wearing a tan jacket and a gold medallion at the time of the sale of the narcotics. The statement on the tape was simply a reiteration of that testimony. Furthermore, the state did not introduce the tape to rehabilitate a witness. Its only purpose was to bolster Case’s previous testimony. The content of the tape was a prior consistent statement and, therefore, hearsay. Because the tape was not offered to rehabilitate Case’s credibility, the court correctly excluded the tape in the first instance on those grounds.

B

The state next claims that the defendant opened the door to the admission of the tape. The state argued that the tape was offered into evidence to rebut the defendant’s questioning concerning the failure of the police to use appropriate investigatory tools. It contends that the tape was a fair response to the defendant’s claim that the police did not identify the defendant properly because of that failure. The state further argues that it could not prove positive identification by merely offering the tape without revealing its contents.

“Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. . . . The doctrine of opening the door cannot, of course, be subverted into a rule for injection of prejudice. . . . The trial court must carefully consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit it only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence. . . . Thus, in making its determination, the trial court should balance the harm to the state in restricting the inquiry with the prejudice suffered by the defendant in allowing the rebuttal.” (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 224 Conn. 196, 206-207, 618 A.2d 494 (1992).

The defendant’s questions on cross-examination were limited to the investigatory tools that were commonly used in similar undercover drug operations and those that were available to the police department. He did not question any witness as to the contents of the tape. Even if the defendant opened the door to the admission of the tape, he did not open the door to the admissibility of its contents.

C

Finally, the state argues that if the admission of the tape was improper, it was harmless because the description of the defendant already was in evidence. We agree.

“Under the current and long-standing state of the law in Connecticut, the burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant. The defendant must show that it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 638, 737 A.2d 404 (1999), cert. denied sub. nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). Furthermore, “[t]he ruling of the trial court in order to constitute reversible error must have been both incorrect and harmful. . . . The question is whether the trial court’s error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court’s ruling, though erroneous, likely to affect the result?” (Citations omitted.) State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986).

The defendant argues that because physical evidence, such as the tape, would be given greater weight by the jury, it is conceivable that the description on the tape of the drug sellers’ clothing altered the outcome of the trial. The jury, however, had other evidence of the defendant’s description with which it could find him guilty beyond a reasonable doubt. Case identified the defendant in court and testified on direct examination regarding his out-of-court identification from the photographic array. In addition, Magoveny and Hassett testified that they had identified the black man on the property who was wearing the tan jacket and gold medallion only minutes after the sale as the defendant.

The defendant has failed to sustain his burden of proving that it was more probable than not that the admission of the tape affected the outcome of the trial. Therefore, we find that any error was harmless.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who . . . sells ... to another person any narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years . . . .”

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 or 21a-278 by . . . selling ... to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. . . .”

       The defendant’s reliance on the rule of lenity is misplaced. “[T]he touchstone of this rale of lenity is statutory ambiguity. . . . [W]e . . . [reserve] lenity for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.” (Internal quotation marks omitted.) State v. Jason B., 248 Conn. 543, 555, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S. Ct. 406, 145 L. Ed. 2d 316 (1999); State v. King, 249 Conn. 645, 687 n.47, 735 A.2d 267 (1999). Because there is no ambiguity in the relevant statutory provision, the rale of lenity has no application in the present case.

       The defendant requested the following charge: “You may not infer that the defendant is guilty in participating in criminal conduct merely from the fact that he was present at the time other people may have been committing a crime, merely from the fact that he was present at the time the crime was being committed and had knowledge it was being committed.”

       The body microphone worn by Case was a small device that recorded voices and transmitted them to a receiving unit. The tape is the product of that transmission and contains a recording of Case’s description of the two men while he was saying it.

       The court initially ruled that the tape was inadmissible because “these recordings would be a prior consistent statement and, at this point, I find that it’s premature to introduce them . . . .”


author: FLYNN, J.

text:
    WILFREDO M. RAMOS v. COMMISSIONER OF CORRECTION
    (AC 20315)
    Landau, Flynn and O’Connell, Js.

      Argued September 20, 2001
    officially released January 22, 2002

      David B. Rozwaski, special public defender, for the appellant (petitioner).

      Joy K. Fausey, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Robin Lipsky, assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, J.

This appeal arises from the habeas court’s denial of a petition for a writ of habeas corpus. The petitioner, Wilfredo M. Ramos, claims that the habeas court improperly found (1) that he pleaded guilty voluntarily and (2) that he had effective assistance of counsel during the sentencing phase of his case. The petitioner contends that “gross misadvice” from his counsel coupled with the retroactive application of Megan’s Law renders his guilty plea involuntary. He also alleges that his counsel was ineffective in failing to offer more mitigating evidence at the sentencing hearing and in failing to apply for sentence review. We affirm the judgment of the habeas court.

The incident that gave rise to criminal charges against the petitioner took place on June 27, 1989. On that day, a thirteen year old girl reported being thrown to the ground, choked and sexually assaulted in Waterbury’s Washington Park. She identified the petitioner, whom she had known prior to the incident, as her assailant. Medical examination of the girl confirmed many details of her version of the incident. The injuries that she had sustained were consistent with a recent sexual assault in the manner she had described. She was prepared to testify against the petitioner at trial had he not pleaded guilty.

On August 7,1989, the petitioner pleaded guilty under the Alford doctrine to the charge of sexual assault in the first degree in violation of General Statutes (Rev. to 1989) § 53a-70. The guilty plea followed an agreement between the state and the petitioner, under which the state was to nolle a felony charge of risk of injury to a child in violation of General Statutes § 53-21 and the petitioner was to serve fifteen years, execution suspended after ten years followed by five years of probation. The petitioner reserved “the right to argue for less” under this agreement. Before accepting the guilty plea, the trial court canvassed the petitioner in accordance with the procedures outlined in Practice Book §§ 711, 712 and 713, now §§ 39-19, 39-20 and 39-21, and ensured that the petitioner understood the range of sentences that could be imposed, the nature of the charge and that he was waiving certain constitutional rights by pleading guilty. The petitioner acknowledged all of these consequences on the record. On the sentencing date, however, the petitioner attempted to withdraw his guilty plea. Taken by surprise, the trial court granted a continuance to review the plea transcripts. After reviewing them, the trial court denied the petitioner’s motion to withdraw the guilty plea. In his direct appeal, the petitioner claimed that this judgment was improper. State v. Ramos, 23 Conn. App. 1, 579 A.2d 560 (1990). This court upheld the trial court’s denial of the petitioner’s motion to withdraw his plea, concluding that the entire record demonstrated that the petitioner voluntarily and knowingly entered his guilty plea. Id., 4.

Several years later, on April 26, 1999, the petitioner filed a petition for a writ of habeas corpus. In this petition, the petitioner again claimed, inter alia, that his guilty plea was involuntary, but under two new theories not raised in his 1990 appeal. First, the petitioner claimed that his counsel grossly misadvised him prior to his plea. Second, he claimed that the unforeseen application of Megan’s Law, requiring him to register as a sex offender and to give a blood sample, rendered his plea involuntary. The petitioner also claimed that he did not have effective assistance of counsel during sentencing and at all times when the petitioner could have applied for sentence review. The habeas court denied the petition and granted certification to appeal.

I

VOLUNTARINESS OF THE PLEA

A

The petitioner first claims that his guilty plea was involuntary due to “gross misadvice” from his trial counsel. The petitioner alleges that his counsel “led [him] to believe . . . that his charges would be reduced and that he would receive [less] time” if he pleaded guilty. Because the petitioner offers no basis to challenge the habeas court’s factual finding that the petitioner had not proven that the communications alleged to be misadvice occurred, this claim fails.

Our standard of review in assessing this question of habeas court fact-finding is well settled. “The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous.” Copas v. Commissioner of Correction, 234 Conn. 139, 152, 662 A.2d 718 (1995).

The petitioner correctly notes that “gross misadvice” by counsel has supported the invalidation of a guilty plea in the past. See generally Falby v. Commissioner of Correction, 32 Conn. App. 438, 446-47, 629 A.2d 1154, cert. denied, 227 Conn. 927, 632 A.2d 703 (1993). The petitioner offers no basis, however, to disturb the habeas court’s factual finding that the petitioner had not established the occurrence of the communications that he alleged to be gross misadvice. The habeas court found that the petitioner “lacked credibility” in his assertion that counsel had promised him leniency in sentencing. The trial court canvassed the petitioner in detail, and the petitioner admitted that he understood the terms of his plea. Despite an outspoken, “aggressive trait” noted by the habeas court, the petitioner did not voice any reservations about those terms, even as he was sentenced. It is not our role to reevaluate the credibility of witnesses or to overturn factual findings of a habeas court unless they are clearly erroneous. Cosby v. Commissioner of Correction, 57 Conn. App. 258, 259, 748 A.2d 352 (2000). The petitioner has not provided a legal argument to support the claim that these findings were “clearly erroneous.” Accordingly, this claim fails.

B

The petitioner also claims that he pleaded guilty involuntarily because he was unaware that he would have to comply with Megan’s Law upon his release from prison. We disagree.

Under Megan’s Law, sexual offenders are now required to register certain information with the commissioner of public safety upon their release into the community. The information required includes the offender’s “name, identifying factors, criminal history record and residential address . . . .” General Statutes § 54-251 (a). The commissioner of public safety and all local police departments then maintain a public registry of this information and may actively notify people, if believed necessary, “to protect the public or any individual . . . .” General Statutes § 54-258 (a) (2). A sex offender who fails to register according to Megan’s Law commits a class D felony. See General Statutes §§ 54-251 (d), 54-252 (d), 54-253 (c) and 54-254 (b). General Statutes § 54-102g et seq. authorize the extraction and DNA testing of a blood sample from a person convicted of a sexual offense. The DNA testing conducted under these statutes is for “identifiqation characteristics.” General Statutes § 54-102g (a). As with the practice of fingerprinting, this is designed to aid future investigations and to protect the public. General Statutes § 54-102j. In the recent case of Doe v. Dept. of Public Safety, 271 F.3d 38, 61-62 (2d Cir. 2001), the United States Court of Appeals for the Second Circuit affirmed the decision by the United States District Court for the District of Connecticut enjoining public dissemination of the registry unless an appropriate opportunity to be heard is afforded on the issue of whether a registrant presently is dangerous to the community. Megan’s Law applies to the petitioner retroactively. See State v. Kelly, 256 Conn. 23, 90-94, 770 A.2d 908 (2001). At the time of the petitioner’s plea, Megan’s Law had not yet been enacted in Connecticut. The petitioner claims that his guilty plea was involuntary and unintelligent because he could not have anticipated Megan’s Law and its consequences.

A criminal defendant waives several constitutional rights by pleading guilty, including the right to a jury trial, the right against self-incrimination and the right to confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). The waiver of these rights must be knowing, intelligent and voluntary as a matter of constitutional law. Id., 243 n.5; e.g. Miranda v. Arizona, 384 U.S. 436, 444, 475, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (waiver of right against self-incrimination). The United States Supreme Court generally enforces this standard for the relinquishment of fundamental constitutional rights. A guilty plea is a conviction. Boykin v. Alabama, supra, 242. Thus, a defendant must understand the elements of the crime charged in order to plead guilty. McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); State v. Wideman, 38 Conn. App. 581, 585, 663 A.2d 409, cert. denied, 235 Conn. 907, 665 A.2d 906 (1995). Recognizing this, the United States Supreme Court standardized a prophylactic safeguard known as the canvass — a colloquy between the trial judge and the defendant that creates a record of the defendant’s “full understanding of what the plea connotes and its consequence.” Boykin v. Alabama, supra, 244.

In Connecticut, as in all other jurisdictions within the United States, we have developed more specific requirements for a plea canvass. Under Practice Book § 39-19, the trial court must “[address] the defendant personally and [determine] that he fully understands” the possible sentences, the nature of the charge and that the defendant has the constitutional rights he is relinquishing by entering a guilty plea. Under Practice Book § 39-20, the trial court must ensure that the defendant is not pleading guilty due to threats or promises outside the terms of a plea agreement. Our Supreme Court has, thus far, declined to extend the requirements of a plea canvass beyond those set forth in Practice Book §§ 39-19 through 39-21. See, e.g., Stale v. Andrews, 253 Conn. 497, 507, 752 A.2d 49 (2000). Even in enforcing Practice Book §§ 39-19 and 39-20, our Supreme Court has not demanded perfect compliance. See, e.g., State v. Domian, 235 Conn. 679, 687-89, 668 A.2d 1333 (1996) (failure to canvass defendant as to “minimum sentence” does not necessarily void guilty plea as involuntary).

The petitioner urges us to consider the gravity of the consequences he suffers under Megan’s Law, inviting a comparison between a criminal sentence and sex offender registration. It is true that Practice Book § 39-19 (2) through (4) require a trial court to apprise a defendant of the range of possible “sentence[s]” which he may suffer in pleading guilty. However, the consequences of Megan’s Law in this case do not fall within this rule. Section 39-19 refers only to the relevant maximum and minimum length of a sentence. The petitioner’s argument proceeds, therefore, by analogy. He argues that both the length of a criminal sentence and the requirements of Megan’s Law are serious consequences of a guilty plea, which might give a defendant pause in opting to plead guilty. The petitioner stresses that had he known Megan’s Law would apply to him at the time, he would not have pleaded guilty.

We first observe that this argument assumes that the sentencing advisory mandated by § 39-19 is constitutionally required as a matter of due process. On this particular question, Boykin is ambiguous. The Boykin court only proclaimed that a defendant should understand the “consequence” of a guilty plea. Boykin v. Alabama, supra, 395 U.S. 244. An infinity of consequences flow from a guilty plea. A trial judge, or any human being for that matter, is in “no position to advise on all the ramifications of a guilty plea personal to a defendant.” People v. Ford, 86 N.Y.2d 397, 403, 657 N.E.2d 265, 633 N.Y.S.2d 270 (1995).

The consequences specifically referenced in Boykin were simply that the defendant is waiving three major constitutional rights. Nonetheless, courts have further expanded the meaning of “consequence.” Whether under the auspices of due process; see, e.g., United States v. Salerno, 66 F.3d 544, 550-51 (2d Cir. 1995), cert. denied sub nom. DiGirolamo v. United States, 516 U.S. 1063, 116 S. Ct. 746, 133 L. Ed. 2d 694 (1996); or under independent rules of practice; see State v. Andrews, supra, 253 Conn. 507; courts have divided the results of a guilty plea into (1) “direct” and (2) “collateral consequences.” A court is obligated to apprise a defendant of direct consequences but not collateral consequences. Id., 504-505. Direct consequences have been defined as those consequences having a “definite, immediate and largely automatic affect on [a] defendant’s punishment.” (Internal quotation marks omitted.) State v. Nguyen, 81 Haw. 279, 288, 916 P.2d 689 (1996). Again, the requirements imposed on the defendant by Megan’s Law have been held not to be punishment. State v. Kelly, supra, 256 Conn. 94. In Kelly, where the defendant was found guilty after trial, our Supreme Court held that the effects of Megan’s Law as applied to a defendant were nonpunitive and therefore did not violate the ex post facto clause of the United States constitution. U.S. Const., art. I, § 10; State v. Kelly, supra, 94.

Here, we address the nonpunitive effects of Megan’s Law after a guilty plea and turn to whether they were definite, immediate and largely automatic and, thus, were required to be included in an advisory canvass before the plea was accepted. If, as many courts have held, due process requires a canvass on all definite punishment, a bright line rule excepting all definite nonpunitive effects of the plea might run afoul of due process concerns about the voluntariness of relinquishing constitutional rights. Whether or not these effects are termed “punitive,” lack of knowledge of grave, definite consequences could determine that a plea is not knowingly and voluntarily rendered. Thus, we examine not only whether the effects of a plea are punitive, but also whether the effects are definite, immediate and largely automatic, even where we have already determined that they are nonpunitive.

When the petitioner entered his guilty plea, however, the effects of Megan’s Law were far from “definite, immediate and automatic.” Megan’s Law had not even been drafted. As with all other “collateral consequences” of a guilty plea, a trial judge should not be held to the impossible standard of predicting all future actions of the legislature that might impact a defendant who is pleading guilty. Although the effects of Megan’s Law are now definite for defendants pleading guilty, they were not at the time of the petitioner’s plea because Megan’s Law did not exist. All effects of a guilty plea become definite at some point in the future, at the very latest, when they occur. Boykin required the plea canvass to cover certain consequences as a matter of due process because trial courts are “capable [of] canvassing” on such matters. Boykin v. Alabama, supra, 395 U.S. 244. At the time of the petitioner’s guilty plea, the trial court was not capable of anticipating and canvassing on the effects of Megan’s Law on the petitioner. Thus, the effects of Megan’s Law stood among the forest of innumerable possible collateral effects of pleading guilty to this crime. Accordingly, we deny relief on this claim.

II

EFFECTIVE ASSISTANCE OF COUNSEL

A

The petitioner next claims that his counsel during sentencing was ineffective. In support of this argument, the petitioner notes that certain evidence, most of which the petitioner concedes may not exist, was not proffered at the sentencing hearing. Because the petitioner has failed to demonstrate that any such evidence would have had a “mitigating” effect on the sentence finally imposed, this claim fails.

The standard of review for a habeas court’s denial of a claim of ineffective assistance of counsel is well settled. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Goodram v. Commissioner of Correction, 63 Conn. App. 297, 299, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001). To prevail on a claim of ineffective assistance of counsel, a habeas petitioner generally must set forth evidence establishing two elements. “First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “The performance yardstick is whether counsel’s performance was ‘reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.’ ” Tatum v. Commissioner of Correction, 66 Conn. App. 61, 64-65, 783 A.2d 1151, cert. denied, 258 Conn. 937, 785 A.2d 232 (2001), quoting Johnson v. Commissioner of Correction, 36 Conn. App. 695, 703, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). To establish prejudice, a defendant must demonstrate that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, supra, 694.

In the present case, the petitioner simply notes that his brother did not have an opportunity to testily on his behalf at the sentencing hearing. We cannot presume, on the state of this evidence, that there is a reasonable probability that this testimony would have altered the terms of the sentence. At the sentencing hearing, the petitioner’s attorney argued for a lower sentence and the petitioner spoke on his own behalf. The evidence against the petitioner was strong. The court was aware of the petitioner’s criminal record. Under his plea agreement, a felony charge of risk of injury to a child in violation of § 53-21 was nolled. The probability that the court would have reduced the petitioner’s sentence, beneath the terms of his agreement, is remote. Thus, the petitioner has not established the necessary prejudice to warrant resentencing. Accordingly, this claim fails.

B

Finally, the petitioner claims that his counsel was ineffective in failing to apply for sentence review under General Statutes § 51-195. The petitioner asks us to reinstate his rights to sentence review because the statutory time limit for application has lapsed. We conclude that the habeas court properly determined this claim to be without merit.

The habeas court found that sentence review was not requested because case law had not made it available at that time. Under § 51-195, the legislature declared that sentences resulting from plea agreements were not subject to sentence review. Two years after the petitioner’s plea, in State v. Anderson, 220 Conn. 400, 402, 599 A.2d 738 (1991), our Supreme Court held that when a defendant reserves the “right to argue for less,” as in the petitioner’s plea agreement, § 51-195 does not preclude sentence review. The petitioner was sentenced on October 6, 1989, roughly two years before Anderson was decided. Under no theory, then, could the petitioner’s counsel have been deficient in failing to apply for sentence review during these first two years. The petitioner responds by stating in his principal brief that defense counsel’s duty of effective assistance includes the “timely filing of a sentence review application.” The case that the petitioner cites, however, Consiglio v. Warden, 153 Conn. 673, 220 A.2d 269 (1966), does not stand for this vague proposition. In Consiglio, our Supreme Court held that the right to effective representation attached to a sentencing hearing. Id., 677. Other cases have recognized that it is incumbent upon defense counsel to advise their clients as to the rights to appeal and obtain sentence review. See, e.g., State v. Silva, 65 Conn. App. 234, 263-64, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001). However, it does not follow that there is a specific duty of defense counsel to monitor changes in the law of sentence review, years after conviction, and continually to apprise former clients of these changes. The petitioner introduced no expert testimony before the habeas court to establish that his trial counsel’s conduct fell beneath the standard of “reasonably] competence] or [that it was not] within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) State v. Tatum, supra, 66 Conn. App. 64-65. We conclude that it was not beneath the competency of an ordinary attorney in the field to fail to monitor and advise, ad infinitum, all changes in sentence review law relative to all former clients.

The petitioner has also failed to demonstrate any prejudice that would have flowed from this alleged ineffective assistance. Sentence review under § 51-195 can result in either a “decrease or increase of the term within the limits fixed by law. . . .” Thus, the appropriate defense strategy might have been to avoid sentence review altogether at all times in this case. We cannot hold, on the state of the record before us, that an attorney of ordinary skill in the practice of criminal law would have filed an application for sentence review at any point following imposition of this sentence.

We also note that the petitioner’s record on appeal before this court is devoid of any indication that he has ever applied for sentence review on the basis of State v. Anderson, supra, 220 Conn. 400. Therefore, we are not persuaded by his argument that he lost a right for which he has not applied.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Megan’s Law” is the collective term for statutes enacted in the wake of the rape and murder of a seven year old girl, Megan Kanka, in New Jersey in 1994. State v. Misiorski, 250 Conn. 280, 290-91, 738 A.2d 595 (1999). The man convicted of raping and murdering Megan was a previous repeat sex offender against minor children who lived across the street from the Kanka family. The Kanka family was unaware of his history of sexual assault against young girls. Id. Megan’s Law, as enacted in Connecticut, requires, inter alia, that convicted sex offenders register with the commissioner of public safety as a sex offender if they are released into the community. See General Statutes § 54-251 et seq. The department of public safety and all local police departments maintain a registry of all such sex offenders and are directed by the statute to inform individuals of dangers posed by a local sex offender. General Statutes §§ 54-257 and 54-258.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). “A defendant who pleads guilty under the Alford doctrine does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea.” (Internal quotation marks omitted.) State v. Webb, 62 Conn. App. 805, 807 n.1, 772 A.2d 690 (2001).

       General Statutes (Rev. to 1989) § 53a-70 provides in relevant part: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other ... or by threat of use of force . . . which reasonably causes such person to fear physical injury

       Chapter 969 of the General Statutes requires the registration of convicted sexual offenders such as the petitioner. See part I B.

       General Statutes § 54-102g et seq. provide for the extraction and DNA testing of a blood sample from a person convicted of a sexual offense. The DNA testing conducted under this statute is for “identification characteristics”; General Statutes § 52-102g (a); in order to aid future investigations and protect the public from the scourge of sexual crimes.

       The petitioner couched this claim under two separate legal theories— ineffective assistance of counsel and involuntary plea doctrine. Because both of these theories depend on subordinate facts found by the habeas court to be unproven, we do not address the specific standards applicable to these theories in this section of the opinion.