author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. MARK BANKS
    (AC 19505)
    Hennessy, Mihalakos and Zarella, Js.
    Argued April 5
    officially released August 1, 2000

      Susan M. Hankins, assistant public defender, with whom, on the brief, was Steven Yudkin, certified legal intern, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Kevin J. Murphy, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Mark Banks, appeals from the judgments of the trial court, rendered after a jury trial, of four counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), four counts of kidnapping in the first degree in violation of General Statutes § 53a-92 and two counts of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. The defendant claims that the court improperly (1) failed to suppress in-court and out-of-court identifications of him that were obtained as the result of impermissibly suggestive procedures and were not reliable under the totality of the circumstances, (2) consolidated for trial three factually similar but legally unconnected informations, refused to instruct the jury that the state was not prosecuting one of the three cases against him that the jury had been told it would hear and refused to allow defense counsel to “make any reference to the fact that prior to the voir dire there was a third case,” (3) determined that there was sufficient evidence to sustain his conviction for criminal possession of a pistol or revolver when the state had failed to prove the allegedly essential element of opera-bility and failed to instruct the jury that operability was an essential element that the state was required to prove and (4) failed to instruct the jury that it should give no greater or lesser weight to the testimony of police officers on account of their occupational status and charged the jury regarding expert testimony when police officers were the only witnesses to whom the instruction could apply. We affirm the judgments of the trial court.

The following procedural facts are necessary for a resolution of this appeal. The defendant was charged in connection with three robberies in three separate informations, which the court, on the state’s motion, joined for trial. Following a pretrial hearing, the state nolled and the court dismissed one information because the victim had told the prosecutor that the defendant was not the perpetrator. Prior to trial, the defendant objected to the consolidation and, on the day evidence began, orally renewed his motion to sever the two remaining cases on the ground that although they were factually similar, they were legally unconnected. The court denied the motion and adopted its prior conclusion that the cases properly were joined. Thus, the remaining two cases remained joined for trial.

The jury reasonably could have found the following facts with respect to an August 30,1995 robbery alleged in one of the two informations on which the state proceeded at trial. Michael Kozlowski and Howard Silk were working that evening at the Bedding Bam store in Newington. The defendant, posing as a customer, entered the store shortly before closing at 9 p.m.; there were no other customers in the store. Kozlowski approached the defendant and began to show him some king-size beds. The defendant pulled a large silver gun from a bag he was holding. The gun had a round cylinder. The defendant, while pointing the gun at Silk, ordered Kozlowski to open the cash register. After taking money from the register, the defendant requested the store’s bank bag or safe. The defendant then asked Silk and Kozlowski for the money from their wallets. He then took money from Silk, but not from Kozlowski. Silk and Kozlowski were then locked in the bathroom with something propped against the door and told not to leave or they would be shot. A short time later, when Silk and Kozlowski heard the doorbell in the store ring, they assumed the robber had left, pushed open the bathroom door and called the police.

The jury reasonably could have found the following facts with respect to a September 13, 1995 robbery alleged in the second of the two informations on which the state proceeded at trial. Kelly Wright was working that evening at the Bedding Bam store in Southington. Shortly before 9 p.m., while Wright’s roommate, Idelle Feltman, was waiting to take her home, the defendant and an unknown woman, posing as customers, entered the store. The defendant pulled a gun from a bag he was carrying, held it to Feltman’s temple, and asked her to open the cash register and to give him money. The defendant then requested the bank bag, which Feltman gave him. The defendant then told Wright and Feltman to get into the bathroom and lock themselves in. Shortly thereafter, Feltman and Wright heard the door buzzer and surmised that the defendant had left the store. They exited the bathroom and called the police. Other facts will be discussed where they are relevant to the issues in this appeal.

I

The defendant claims first that the court improperly failed to suppress in-court and out-of-court identifications of him that were obtained as the result of imper-missibly suggestive procedures and were not reliable under the totality of the circumstances. The defendant claims that the denial of his motions to suppress the identifications resulted in the denial of his constitutional rights to due process and a fair trial in violation of the fifth, sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the constitution of Connecticut. We disagree.

The following additional facts are necessary for our resolution of this claim. During the hearing on the defendant’s motions to suppress, Feltman, Wright and Detective Craig Fournier of the Southington police department testified as to the September 13, 1995 robbery. Feltman testified that she was able to observe the defendant for about five or six minutes during the robbery and that the robber held the gun to her temple. Feltman testified that she described the robber to the police as wearing a red shirt, thinly built, about six feet tall and weighing about 200 pounds, and without facial hair. Feltman testified that approximately four months later, when she picked the defendant’s photograph out of a police photographic array, she noted to Fournier that unlike in the photograph, the robber’s hair was shorter and he did not have facial hair. Feltman also testified that the eyes and ears of the defendant were very vivid, and that when she observed the defendant’s photograph she “turned very sweaty.” She further testified that when she saw the defendant’s photograph, “My stomach started bothering me, and I looked closer into the eyes, and that’s what I saw that night.”

Wright testified that she observed the robber for approximately five or six minutes during the robbery. She testified that she described the robber to the police as a black male, tall, approximately 200 pounds, in his late twenties or early thirties. She also had looked at a police photographic array and testified that “when [she] saw the eyes in that photograph, it brought flashbacks back.” She testified that she told Fournier that “[t]his looks like the gentleman that robbed me.” She further testified that the robber did not have any facial hair and that the hair in the police photograph she had looked at was different.

Fournier testified as follows regarding the procedure for showing Feltman and Wright the photographic lineup: “I advised them that they would have to view the lineup separately. I couldn’t show it to them at the same time. I had one of them step around the comer. I don’t recall who I showed it to first, but the other one stepped around the comer out of view. I explained to both women that the suspect who had done the robbery may or may not be in this photographic lineup and to view the photos carefully, and if they see the person who did the robbery to indicate which one he is.”

“To determine whether apretrial identification procedure, such as the photographic array in this case, violated a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification. . . . The defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable.” (Citations omitted; internal quotation marks omitted.) State v. Collins, 38 Conn. App. 247, 261-62, 661 A.2d 612 (1995).

In this case, the defendant claims that the photographic array was unnecessarily suggestive because it was not based on the various descriptions that the witnesses to each of the three robberies gave to the police on the nights of those robberies, i.e., that the robber was clean-shaven with no facial hair. The defendant further claims that the array was unnecessarily suggestive because it was not based on two composites prepared by the police, but instead was based on the physical description of the defendant.

The defendant makes much of the fact that the array contained only photographs of men with facial hair, a physical characteristic that does not conform to the description of a clean-shaven robber that was given by the witnesses. We fail to see how this could be unnecessarily suggestive. First, the witnesses all were able to pick the defendant from the array notwithstanding that his photograph and many of the others in the array showed facial hair. Second, had the array contained the defendant’s photograph with facial hair while the other photographs contained none, there might be an argument that the defendant would stand out from the others. That, however, is not the case here. Third, the defendant points to no case law to support his argument that his photograph and the others in the array must exactly meet the physical description of the suspect. We see no reason why a suspect cannot be included in a photographic array with photographs of other individuals bearing a description similar to but not exactly the same as descriptions given by witnesses to the crimes. This is especially trae where, as here, the most prevalent physical difference between the individuals in the photographs and the witnesses’ descriptions was the presence of facial hair, which can change rapidly. “We conclude, therefore, that the defendant failed to carry his burden of proving that the identification procedure gave rise to a very substantial likelihood of irreparable misidentification. Because we conclude that the arrays used to identify the defendant were not unnecessarily suggestive, we need not consider whether the identifications were nevertheless reliable.” Id., 262-63.

II

The defendant next claims that the court improperly consolidated for trial two factually similar but legally unconnected informations. In connection with this claim, the defendant asserts that the court improperly refused to instruct the jury that the state was not prosecuting one of the three cases that the jury had been told it would hear and refused to allow defense counsel to make any reference in final argument to the jury about the fact that prior to voir dire there was a third case. The defendant claims that he was deprived of his constitutional rights to due process, a fair trial and the assistance of counsel in violation of the fifth, sixth and fourteenth amendments to the United States constitution, and article first, §§ 8 and 9, of the constitution of Connecticut. We disagree.

The following additional facts are necessary for our resolution of this claim. The defendant was originally charged in three separate informations with robberies and kidnappings on three separate dates at three separate locations, for which the state had three separate sets of witnesses. The state moved to join the three cases, claiming that each of the offenses would be admissible at trial on the issue of identity. The court joined the cases, finding “that this defendant is not substantially prejudiced, that the three incidences are factually similar and that they are legally connected. That is, the evidence of one would be admissible under our evidentiary rule that permits evidence of similar misconduct, evidence to be admitted to prove a separate case.”

In addition to the August 30, 1995 and September 13, 1995 robberies previously discussed, the defendant also was charged in a separate information with a September 11, 1995 robbery at the Dress Bam store in Rocky Hill. At the hearing on the defendant’s motions to suppress certain identifications of him, Marianne Jean, a witness for the state, testified that between 8:30 p.m. and 9 p.m. on September 11, 1995, she was ringing up a sale when the robber, who she thought was a customer, brandished a gun, said that it was not a toy and that he wanted money. She testified that she was able to observe the defendant for a couple of minutes under good lighting conditions. She testified that the robber was accompanied by a woman. After the robbery, she described the robber as six feet, two inches tall, with a medium frame and clean-shaven. She further testified that when she was shown a police photographic array, she picked the defendant’s photograph but was not 100 percent sure of the identification, stating, “[T]hat picture looked like the person except for the facial hairs.” After her testimony, she told the prosecutor that she was sure that the defendant was not the person who robbed the store.

On the basis of a lack of positive identification, the prosecutor nolled the charges as to the September 11, 1995, incident. The defendant then moved to sever the remaining two cases. The court denied the motion.

“The trial court has discretion to determine whether separate cases involving the same defendant should be consolidated; State v. Pollitt, 205 Conn. 61, 67-68, 530 A.2d 155 (1987); and the exercise of that discretion may not be disturbed on appeal unless it has been manifestly abused. Id. To demonstrate that the trial court abused its discretion, the defendant bears the heavy burden of convincing this court that the joinder resulted in substantial injustice. Id., 68.

“In Connecticut, joinder of cases is favored. . . . Joinder expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once. ... In determining whether joinder is appropriate, the court must consider several factors. The factors to be considered are (1) whether the charges involve discrete, easily distinguished factual scenarios, (2) how long and complex the trial was, and (3) whether one or more of the counts alleges brutal or shocking conduct by the accused. State v. Stevenson, 43 Conn. App. 680, 686, 686 A.2d 500 (1996), cert. denied, 240 Conn. 920, 692 A.2d 817 (1997). If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred from improper joinder. State v. Lee, [32 Conn. App. 84, 106-107, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993), cert. denied, 510 U.S. 1202, 114 S. Ct. 1319, 127 L. Ed. 2d 668 (1994).]” (Citations omitted; internal quotation marks omitted.) State v. Walsh, 52 Conn. App. 708, 711-12, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999).

A

The defendant first claims that he was substantially prejudiced when the court consolidated for trial and refused to sever two factually similar but legally unconnected informations. We disagree.

At the outset, we set forth our standard of review. “A trial court will not have manifestly abused its discretion in denying severance if the state’s orderly presentation of evidence has prevented confusion of the jury and has enabled the jury to consider the evidence relevant to each charge separately and distinctly. See Drew v. United States, 331 F.2d 85, 89 (D.C. Cir. 1964); State v. Bell, 188 Conn. 406, 411, 450 A.2d 356 (1982); State v. King, [187 Conn. 292, 301, 445 A.2d 901 (1982)].” State v. Pollitt, supra, 205 Conn. 68.

Applying those factors to this case, we note first that the factual scenarios for each robbery were simple and distinct. Our review of the record reveals that the evidence for each robbery was presented in an orderly manner and in a way that the jury could consider it separately and distinctly. The court repeatedly reminded the jury that it was not to aggregate the evidence, but that it was to consider each robbery and the evidence presented separately.

Second, the trial was not long or complex. It lasted only six days and involved only two incidents. See State v. Walsh, supra, 52 Conn. App. 713 (trial not unduly long or complex when it lasted six days and involved only two victims); State v. Hilton, 45 Conn. App. 207, 214-15, 694 A.2d 830, cert. denied, 243 Conn. 925, 701 A.2d 659 (1997) (trial involving two separate charges not unduly long or complex when it lasted sixteen days with twenty-five witnesses presented and ninety-nine exhibits introduced), cert. denied, 522 U.S. 1134, 118 S. Ct. 1091, 140 L. Ed. 2d 147 (1998); State v. Stevenson, supra, 43 Conn. App. 689 (trial not unduly long or complex when it lasted six days and involved two incidents).

Third, the crimes alleged were not particularly brutal or shocking. “The test is whether the facts of one crime are so brutal or shocking as to amount to prejudice if tried together with another crime. State v. Jennings, 216 Conn. 647, 659, 583 A.2d 915 (1990).” State v. Hilton, supra, 45 Conn. App. 216. The charges here are not so brutal or shocking that joinder is precluded. In fact, our Supreme Court has held that even murder is not necessarily so brutal and shocking that with proper instruction it could not be considered by a jury along with another crime. See State v. Herring, 210 Conn. 78, 97, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). Furthermore, “[w]e do not discern a high risk of one offense being tainted by anything unusually shocking or brutal in the nature of the other, ‘especially if the evidence as to each would have been cross admissible had the cases been tried separately.’ State v. Stevenson, supra, 43 Conn. App. 691.” State v. Hilton, supra, 216. While it is true that evidence of other crimes may not be used to show bad character, it may be used to show intent, malice or common scheme if its probative value exceeds its prejudicial effect. State v. Greene, 209 Conn. 458, 464-65, 551 A.2d 1231 (1988); State v. Pollitt, supra, 205 Conn. 69.

In this case, the factual similarities of each robbery weigh in favor of admissibility to show a common scheme. Both were committed within two weeks of one another and in close physical proximity; both stores were Bedding Bams; both were robbed by a black male near closing time; the suspect described by the witnesses from each store was carrying a bag from which he pulled a silver handgun; the suspect in each case asked for the bank bag after asking for money from the cash register; the suspect in each case locked the victims in a room and fled. These facts compare favorably with cases upholding common scheme evidence. See, e.g., State v. Greene, supra, 209 Conn. 465-66.

We conclude, therefore, that the court did not abuse its discretion in consolidating the two informations for trial and that its ruling did not cause the defendant substantial prejudice. See State v. Pollitt, supra, 205 Conn. 67-68.

B

The defendant next claims that the court improperly refused to instruct the jury that the state had decided not to prosecute the September 11, 1995 robbery at the Dress Bam in Rocky Hill. The following additional facts are necessary for the resolution of this claim.

During jury selection, the court in its preliminary instructions told the jury that the defendant was charged with crimes stemming from three separate incidents at three separate locations. After the jury was selected but before trial began, the state entered a nolle on the September 11, 1995 robbery after a hearing on the defendant’s motions to suppress certain identifications of him. Before the jury was sworn, the defendant made an oral motion requesting that the jury be advised that the state had elected not to proceed on the September 11,1995 robbery. The court denied the motion and ruled that it was “simply going to tell [the jurors] that they have two cases before them today.”

The claim here is similar to one made in State v. Safford, 21 Conn. App. 467, 470, 574 A.2d 1305, cert. denied, 216 Conn. 803, 577 A.2d 717 (1990), in which two separate incidents of sexual assault were alleged. “Because the two assaults were to be consolidated for trial, the court made brief references to the fact that the defendant was being charged with two separate incidents during its preliminary instructions to the venire from which the jury was selected. Defense counsel also referred to the two incidents during his voir dire of some of the prospective jurors. After jury selection was completed, but before the jury was sworn in, the state chose not to proceed with the [second] case. The defendant then moved to dismiss the jury and to select a new one, arguing that the jury’s knowledge of the defendant’s other charges would be overly prejudicial to him.” Id. “As a preliminary matter, we note that if the jury had been sworn in when the state dropped the [charges in the second case], a motion for a mistrial would have been the appropriate vehicle for the defendant to raise this challenge.” Id., 471; see Practice Book § 42-43.

The defendant’s motion in this case was something akin to an objection to an evidentiary ruling, wherein the defendant requested that information placed before the jury be stricken and the court refused to do so. Here, the defendant sought to have the court instruct the jury to disregard certain information that he deemed inappropriate or prejudicial. In that light, we shall review this claim as if it were an objection to an eviden-tiary ruling. “It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make eveiy reasonable presumption in favor of upholding the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 92, 709 A.2d 14 (1998).

We determine, therefore, that the court did not abuse its discretion in this instance. The court chose not to call any additional attention to the nolled case, in its decision to merely state to the jury, “One of [the] incidences will no longer be before you.” “The jury, in the absence of a fair indication to the contrary, is presumed to have followed the instructions of the court. State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980); State v. Barber, 173 Conn. 153, [156-57], 376 A.2d 1108 (1977).” State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984). In this case, the court clearly instructed the jury that it was not to take evidence of one case and add it to evidence in another case in order to conclude guilt beyond a reasonable doubt. With this clear instruction, the jury would not be inclined, first, to surmise that the defendant was guilty of the September 11,1995 robbery, and then, even if it did, to use such information improperly against the defendant in the other case.

C

The defendant next claims that the court improperly refused to allow him to make any reference in final argument to the jury about the fact that there were initially three cases being brought against him, thereby violating his right to effective assistance of counsel under the sixth amendment to the United States constitution, and his right to be heard by himself and by counsel under article first, § 8, of the constitution of Connecticut. We disagree.

“Counsel may comment upon facts properly in evidence and upon reasonable inferences to be drawn from them. State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977). Counsel may not, however, comment on or suggest an inference from facts not in evidence. State v. Manley, 195 Conn. 567, 580, 489 A.2d 1024 (1985). In general, the scope of final argument lies within the sound discretion of the court; Schwarz v. Waterbury Public Market, Inc., 6 Conn. App. 429, 437, 505 A.2d 1272 (1986); subject to appropriate constitutional limitations. Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975) (complete denial of right to argue violates sixth amendment). . . . State v. Huff, 10 Conn. App. 330, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987).” (Emphasis in original; internal quotation marks omitted.) State v. Ross, 18 Conn. App. 423, 432, 558 A.2d 1015 (1989).

As discussed in part II B of this opinion, the court in this case appropriately decided not to indicate to the jury the disposition of the charges relative to the September 11, 1995 incident. Furthermore, there were no facts in evidence relating to that case that the defendant could comment on to the jury or suggest inferences from. Therefore, the court did not abuse its discretion when it denied his request to refer to the September 11, 1995 case in closing argument to the jury.

Ill

The defendant next claims that the state failed to present sufficient evidence to support his conviction for two counts of criminal possession of a pistol or revolver pursuant to § 53a-217c because it failed to prove the allegedly essential element of the operability of the weapon. The defendant further claims that the court improperly denied his request to charge the jury that operability was an essential element of the offense that the state had to prove before he could be convicted. We disagree.

We first look to the applicable statutes to determine the elements of the crime. Section 53a-217c (a) provides in relevant part: “A person is guilty of criminal possession of a pistol or revolver when he possesses a pistol or revolver, as defined in [General Statutes §] 29-27, and (1) has been convicted of a felony . . . .” General Statutes § 29-27 provides: “The term ‘pistol’ and the term ‘revolver’, as used in sections 29-28 to 29-38, inclusive, mean any firearm having a barrel less than twelve inches in length.” There is nothing in either § 53a-217c or § 29-27 that suggests that the operability of the pistol or revolver is an element of the offense.

The defendant seeks to apply the definition of “firearm” provided in General Statutes § 53a-3 (19) to the term “firearm” used to describe a pistol or revolver in § 29-27. Section 53a-3 (19) defines a “firearm” as “any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged . . . .” We disagree with the defendant’s contention that we must apply the definition of “firearm” to modify the definition of pistol or revolver under § 29-27.

Our Supreme Court refused to apply the definition of the term “firearm” in § 53a-3 (19) to modify the term “firearm,” as defined by § 29-27, in a case involving a conviction under General Statutes § 29-38 in which the defendant claimed that operability was an element of the crime that the state had failed to prove. State v. Delossantos, 211 Conn. 258, 272-76, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989). Although Delossantos involved a prosecution under § 29-38, the rationale used in reaching the decision not to import a definition from the Penal Code is instructive.

The defendant’s rationale appears to be based on the premise that because he was prosecuted under our Penal Code, all definitions provided under the code must apply. This is not the case. First, we note that in § 53a-217c, our legislature specifically sought to apply the definition of “pistol” or “revolver,” “as defined in § 29-27.” Section “53a-3 (18) defines ‘pistol’ or ‘revolver’ as ‘any firearm having a barrel less than twelve inches.’ This language is identical to that in § 29-27, the section expressly defining ‘revolver’ as used in [§ 53a-217c]. If the definition of ‘revolver’ applicable to [§ 53a-217c] were subject to penal code definitions, § 29-27 would be superfluous, since § 53a-3 (18) provides the same definition. Such an interpretation undercuts the established principle that ‘ “[n]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase ....’” DeFonce Construction Corporation v. State, 198 Conn. 185, 187, 501 A.2d 745 (1985).” State v. Delossantos, supra, 211 Conn. 274.

The defendant cites State v. Bradley, 39 Conn. App. 82, 90, 663 A.2d 1100 (1995), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996), and State v. Rogers, 50 Conn. App. 467, 475, 718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998), for the proposition that operability is an essential element for conviction of criminal possession of a firearm, for which the state has the burden of proof. Although it is true that this court required the state prove operability in those cases, the defendant’s argument is flawed because he was charged with possession of a “pistol” or “revolver” under § 53a-217c, not possession of a firearm under § 53a-217, as was the case in Bradley and Rogers. We determine, therefore, that operability is not an essential element of the offense under § 53a-217c.

Because we decide that operability is not an essential element of § 53a-217c, we need not address the defendant’s remaining claims that the court improperly denied his request to charge the jury relative to the operability of the weapon and that it was the state’s burden to prove operability before he could be convicted.

IV

The defendant next claims that the court improperly failed to charge the jury that it should give no greater or lesser weight to the testimony of police officers on account of their occupational status and improperly charged the jury regarding expert testimony, where police officers were the only witnesses to whom the instruction about expert witnesses could apply. The defendant asserts that when these claims are considered together, they demonstrate that he was prejudiced because the officers’ testimony concerned the sole disputed issue at trial, identity.

“Our analysis begins with a well established standard of review. When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule 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. . . . State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995). . . . State v. Delgado, 247 Conn. 616, 625, 725 A.2d 306 (1999).” (Internal quotation marks omitted.) State v. Whitley, 53 Conn. App. 414, 423, 730 A.2d 1212 (1999).

The defendant’s claim that the court failed to give a charge to the jury instructing it not to give additional weight to police officers’ testimony is without merit. First, we note that during the preliminary instructions to the prospective jury panels, the court did specifically instruct the members of each jury panel not to give additional weight to the testimony of police officers based solely on their occupation.

The defendant also claims that the court’s instruction regarding expert witnesses was prejudicial because other than lay eyewitnesses the only other witnesses to testify were police officers. The defendant asserts that when this claim is considered with his claim that the court failed to give an instruction on the weight to be accorded to the testimony of police officers, it demonstrates that he was prejudiced because the testimony of the officers concerned the sole disputed issue at trial, identity.

As previously discussed, we disagree with the defendant’s contention that the jury was not charged regarding police testimony. The court explained to counsel, and we agree, that “if the jury felt that there were no experts—but this [instruction] doesn’t say police officer is an expert, and it doesn’t reference any—and if they determine that Detective Fournier is not an expert, that’s fine.” The court further stated to counsel that “[i]t is of no harm whatsoever, and if [the jury] determines that [Fournier] is an expert in the sense that [he] set up these special photographs and that is beyond the ken of an ordinary person—and even a weak argument would suffice to conclude that it does take a trained person to set up a composite—then, to your advantage I have said it is not binding upon you and you can reject it.”

Because we review the jury charge in its entirety, we conclude that the charge as a whole fairly presented the case to the jury. First, the court gave specific instructions during the jury selection process on the weight to be given to the testimony of police officers. Second, in its final jury charge, the court instructed that the jury was to assess the credibility of witnesses, and that it was free to decide which witnesses to believe and which to disbelieve. The court explained a number of factors that the jury might use to aid in its assessment of witness credibility, including the ability of the witness to see or hear or know that which the witness testified about. Finally, assuming arguendo that an expert witness charge was unnecessary, the charge given did not instruct the jury to give any greater weight or attention to the witness or witnesses to whom it would apply. The court in fact stated that the jury could wholly disregard the testimony if it wanted to do so. Therefore, if the instruction, as the defendant claims, is applied to the police officers by default, it gives their testimony no special sanctity. We therefore hold that the jury instructions as a whole did not mislead the jury or prejudice the defendant.

The judgments are affirmed.

In this opinion the other judges concurred.

       The information resulted from a robbery that occurred on September 11,1995, at the Dress Bam store in Rocky Hill. After testifying in a hearing on the defendant’s motions to suppress certain identifications of him, Marianne Jean, a witness for the state, told the prosecutor that she was 100 percent sure that the defendant was not the person who robbed her. Upon learning this, the state nolled the case.

       The court ruled on the defendant’s motion to sever as follows: “The court concludes that this defendant is not substantially prejudiced, that the three incidences are factually similar and that they are legally connected. That is, the evidence of one would be admissible under our evidentiary rule that permits evidence of similar misconduct, evidence to be admitted to prove a separate case.
      “Just the highlights that the court would like to point out for the record are that the three incidences occurred during a two week period at similar, not the same, but somewhat similar retail businesses within approximately thirty minutes of closing time. That in all three robberies there were no customers present. That the defendant appeared to adopt a similar modus operandi, approached the cash register with some type of a bag and removed a gun from that bag.
      “All the victims described the gun as a silver revolver with brown-colored grips. Method of robbery appeared to be consistent in that a demand was made, 1hat the cashier removed the money from the cash register [and] when receiving the money [the defendant] demanded the bank deposit bags.
      “In the three robberies before us, the defendant ordered that the victims enter a bathroom or back room while the defendant made his escape. He also threatened them [telling them] not to call the police. He said the police will do their job. The robber in all three incidences was a black male, described as between six feet and six feet, two [inches tall], early thirties, between 200 and 220 pounds. In two of the robberies, he was accompanied by a black female, five [feet] four to five [feet] six [inches tall], middle to late twenties, medium build, medium length black, straight hair.
      “Of the six witnesses who viewed the [photographic] array, five positively identified the defendant as the male perpetrator, according to the affidavits. One indicated that the defendant’s photograph looked like the robber.
      “The court concludes that under these circumstances, the defense cannot establish [that] joinder would result in substantial injustice. The court will caution the jury on several occasions whenever it is relevant and significant that [it] must find this defendant guilty or acquit based solely on the evidence presented by the state.
      “Having said so, the motion for joinder is hereby granted. An exception is noted for the record.”

       The court ruled on the motion, stating: “The court finds that the two cases are factually similar and legally connected, and that if charges did not exist on either one or the other case, the state has a sufficiently strong enough case to establish prior acts of misconduct [thereby] establishing intent, identification and motive, mode of operation.
      “African-American, closing time, motive robbery, silver handgun, the kidnapping, going to the cash register, coming in with the brown bag, ordering people into a separate room clearly establishes—same type of store, same victims, if not identical but same business operation, clearly is—clearly leads the court to the conclusion that they are legally connected and that one of these cases could have been introduced in the trial itself. Therefore, [the] court finds no prejudice whatsoever. The motion to sever is denied. Exception noted.”

       The defendant argued: “We have here what appears to be a classic case of a situation where the two cases that are now being prosecuted are factually similar but legally unconnected, and cases that I cite, which indicate when they’re factually similar but legally unconnected—the cases that I cite are [State v. Schroff, 198 Conn. 405, 503 A.2d 167 (1986)] at page 409, and [State v. Smith, 10 Conn. App. 624, 525 A.2d 116, cert. denied, 204 Conn. 809, 528 A.2d 1156 (1987)], and just briefly by way of argument, the case that is not being prosecuted was essentially [the] linchpin, that connector between the other two Bedding Barn cases.
      “I would note that... we now have a situation where one Bedding Bam case had the use of an accomplice. I believe that was the [September 13, 1995 Dress Bam] robbery. Whereas, the [August 30, 1995] Bedding Bam [robbery] had no accomplice. The [September 11, 1995] Bedding Barn robbery had the use of an accomplice. So, now there is, except for the similarity of the fact that we have two Bedding Bams being robbed and by a black male, even the descriptions are different.
      “In the . . . August 30 Bedding Bam robbery, the person is described as husky, big build. In the . . . September 13 Bedding Bam robbery, the person is described as thin or thin build. So, basically all we have here is two Bedding Bams being robbed by a person who’s a black male. Those are the only similarities we have. We feel that that would be prejudicial.
      “And, finally, now we have more crystallized the problem with whether or not [the defendant] should testify because now, on the one hand, the August 30 Bedding Bam robbery, his alibi is not nearly as strong [and] the need to possibly testify much greater, and [for] the September 13 Bedding Bam robbery, he has alibi witnesses from his workplace, and his need to testify would be much less, and he’s going to be put to a choice based on both the weak alibi and the much stronger alibi, and it prejudicially affects his decision of whether or not to exercise his constitutional right not to testify.
      “So, for those reasons, we claim now, we maintain now that the cases should be severed, and we should try with this jury the first case that the prosecutor chooses to prosecute and then after that if the prosecutor chooses to go forward with the second case. . . .
      “[Assistant State’s Attorney]: Briefly, Your Honor, I think the court’s previous decision to join these cases for trial is even more compelling now, frankly, with the . . . removal of the Rocky Hill, the September 11 incident. Now we are only dealing with two separate incidents. ... I still believe that the incidents may be admissible to show identity, and I will show the similarities.
      “They really haven’t changed. It’s within the same two week period.”

       See footnote 3.

       Defense counsel in Ms oral motion stated: “I also wanted to address [the fact that] this jury was picked and was [given a preliminary instruction] on the basis of tMee separate files. There are now oMy two bemg prosecuted, and I think that the jury ought to be advised regarding the fact that what was once three files is now only two files, and I suggest that the jury be told that as to the third file that the state has elected not to prosecute that particular file, and I would ask that that be indicated to the jury. I also was—well, I would like the court to make some sort of decision on that.”

       Practice Book § 42-43 provides in relevant part: “Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case. . . .”

       Our analysis here is not intended to imply that information given to the jury during voir dire is testimony or evidence of any kind.

       The court stated in relevant part: “Now, I think I indicated to you at the time of the voir dire that the state was bringing three charges pertaining to three separate incidences against the defendant. One of those incidences will no longer be before you. The state has amended its information, and at the conclusion of this trial I will give you copies of the information, which contains the counts in which they allege the crimes. But what we will have before us is the incident of August 30 pertaining to the business known as the Bedding Bam in Newington, and we will have before us the incident of September 13, also the Bedding Bam but in the town of Southington.”

       The distinction between these two statutes, although subtle, is not insignificant. Section 53a-217 requires possession of a “firearm,” the definition for which we turn to the Penal Code, General Statutes § 53a-3 (19). Section 53a-217c, however, requires the possession of a “pistol” or “revolver” as defined in General Statutes § 29-27. As previously stated, the legislature’s decision to reference a definition outside the Penal Code indicates that it intended that “pistol” or “revolver” not be further defined under the code’s definition of “firearm,” notwithstanding the fact that the definition in § 29-27 includes the word “firearm.” This is especially evident because the code provides a definition for “pistol” and “revolver” that is essentially identical to that in § 29-27.

       Before jury selection on September 26, 1997, the court addressed the panel in relevant part as follows: “Now, the fact that a police officer testifies or some so-called expert testifies, you should not believe a witness because of the status of the witness. You should believe a witness based on the credibility you ascribe to that witness, just as you would any other witness.
      “Now, if a witness comes to you well trained and schooled, and he indicated and had an opportunity to support, that is, by viewing or gathering evidence, to support what that witness is saying to you, then clearly if you wish to ascribe credibility to that witness, you can, but you should not have a knee-jerk reaction because somebody is a doctor or somebody is a lawyer or somebody is a police officer that we automatically have to believe everything that person says because even ten bishops, if they were testifying before you, could be mistaken in terms of whether the traffic light was red or green.”
      Before jury selection on October 1, 1997, the court addressed the panel in relevant part as follows: “Now, police officers will testify. They don’t come from another planet. Just like expert witnesses, they are just like you and I, and your primary function basically is bring common sense. That is why we like lay jurors, a cross section of the community to evaluate every witness, including a police officer, just like you would any other person, just like evaluating your neighbors, your children, your fellow employees, your colleagues. Sometimes, their story seems to make sense; sometimes it’s coherent. You can accept all of it, reject all of it, accept part of it or reject apart of it, but don’t start with any jerk reaction because what comes out of a police officer’s mouth is necessarily accurate.”

       The court charged in relevant part: “Now, additionally, there was presented to you several expert witnesses. A person with special knowledge, skill, experience, training or education is qualified to testify as an expert on the subject to which his testimony relates. An expert is permitted not only to testify as to facts which he personally observed, but also presented to assist you in your deliberations. It is not binding upon you, and you may disregard such testimony either in whole or in part. It is for you to consider this testimony with the other circumstances in the case and decide what weight, if any, you will ascribe to it. Although all expert testimony and evidence should be considered by you, it is not as with the nonexpert testimony and evidence controlled upon your judgments.”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CLARENCE MARSALA
    (AC 19005)
    Foti, Hennessy and Zarella, Js.

      Argued April 28
    officially released August 1, 2000

      Katharine S. Goodbody, special public defender, for the appellant (defendant).

      Peter Anthopolos, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Margaret E. Kelley, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Clarence Marsala, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the fourth degree in violation of General Statutes § 53a-125 (a). On appeal, the defendant claims that the evidence presented at trial was insufficient to sustain his conviction. The defendant also claims that the trial court improperly (1) excluded evidence concerning the defense of necessity, (2) instructed the jury and (3) denied his request for new counsel. We affirm the judgment of the trial court.

On the basis of the evidence adduced at trial, the jury reasonably could have found the following facts. Some time late in 1996, the defendant brought his 1987 Chrysler New Yorker to Milex, an automobile repair shop located in Stratford, for the purpose of an analysis because the vehicle was not running properly and was losing power. After tests were performed, representatives of Milex recommended replacing the head and timing belt, together with other incidental work. The defendant objected and indicated a different procedure would suffice. He agreed to pay Milex $360 for six hours of labor, plus the cost of having one valve machined and the others checked. After the work was completed, on September 18, 1996, the defendant was given a bill in the amount of $561.80, which included a bill in the amount of $155 from the machine shop. The defendant refused to pay, insisting that the bill should be only $360 plus tax. The defendant left and Milex kept the car. Two weeks later Milex notified the defendant it would accept the $360, but the defendant refused. On November 12, 1996, Milex provided the department of motor vehicles with written notice of a bailee’s lien on the defendant’s automobile, and shortly thereafter received confirmation of the hen’s registration in the amount of $561.80.

At some time on either Saturday, November 23,1996, or Sunday, November 24, 1996, the defendant took his car from Milex’s property. The police were notified and officers spoke with the defendant, who admitted taking the car and driving it approximately twenty miles to his house in Seymour. The officers asked that the defendant either to return the car or to pay the balance claimed and he refused. He was later arrested on a warrant.

I

The defendant first claims that the state failed to prove every essential element of the crime beyond a reasonable doubt and, therefore, that his conviction cannot stand. Specifically, the defendant claims that the evidence was insufficient to show that he took “property” from an owner or that his actions constituted a “theft of services.” We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier of fact’s] verdict of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Kondracki, 51 Conn. App. 338, 342, 721 A.2d 567 (1998).

“We are guided by the well established principle that ‘[t]he trier of fact may accept or reject the testimony of any witness.’ State v. Martin, 38 Conn. App. 731, 744, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376 [cert. denied, 519 U.S. 1044, 117 S. Ct. 617, 136 L. Ed. 2d 541] (1996). It is the trier of fact’s ‘exclusive province to weigh the conflicting evidence and determine the credibility of the witnesses.’ State v. Hooks, 30 Conn. App. 232, 239, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). We give deference to the evidence and the reasonable inferences drawn therefrom that support the trial court’s determination of guilt. State v. Dukes, 46 Conn. App. 684, 690, 700 A.2d 119 (1997).” State v. Kondracki, supra, 51 Conn. App., 342-43.

This appeal appears to present an issue of first impression, that is, whether a bailor who takes his own property from the lawful possession of a bailee can be convicted of larceny for depriving the bailee of the value of his services, as secured by a bailee’s lien on the property. We conclude that he may.

Evidence was presented to the jury that Milex’s lien on the defendant’s vehicle had been registered, pursuant to General Statutes § 49-61 (b), in the amount of $561.80 in unpaid repairs. Milex’s continued right of possession of that vehicle became superior to that of the defendant. While the defendant continued to hold legal title to the vehicle, Milex was the “owner” and the defendant was the “taker,” pursuant to General Statutes § 53a-118 (a) (5). Under these facts, it is therefore possible for the defendant to be convicted of larceny for taking property that he owns, and for depriving Milex of its superior right of possession and the amount of its lien interest in the vehicle.

While the amended information; see footnote 2; might have been more artfully drawn, it was sufficient to put the defendant on proper notice of the charge against him. Property as defined in § 53a-118 (a) (l) means among other things personal property, which includes the vehicle in question. The value of the theft, however, is limited by the amount of the bailee’s lien, as secured by the property itself. The crime of theft of services, as set forth in General Statutes § 53a-119 (7), need not be proven and is not relevant to the state’s charge of larceny under § 53a-125. We also find no merit to the defendant’s claim that the state failed to prove that he changed the circumstances of the parties or affected Milex’s claims when he took the automobile, or that he attempted to take any underhanded action. The jury had before it sufficient evidence to find beyond a reasonable doubt the elements of larceny in the fourth degree, including the value of Milex’s possessory interest, that is, the value of its lien being in excess of $500.

II

The defendant next argues that the court improperly excluded evidence regarding the common-law defense of necessity.

“Where an offer of proof is made with respect to a defense and it is clear from the offer of proof that the defense is insufficient as a matter of law, the trial court may properly refuse to permit evidence of the defense to be submitted to the jury.” State v. Drummy, 18 Conn. App. 303, 309-10, 557 A.2d 574 (1989).

“This court has . . . adopted a definition of the common law defense of necessity that requires a showing by the defendant (a) that there [was] no . . . legal alternative available, (b) that the harm to be prevented [was] imminent, and (c) that a direct causal relationship [may] be reasonably anticipated to exist between defendant’s action and the avoidance of harm.” (Internal quotation marks omitted.) State v. Anthony, 24 Conn. App. 195, 209, 588 A.2d 214, cert. dismissed, 218 Conn. 911, 591 A.2d 813, cert. denied, 502 U.S. 913, 112 S. Ct. 312, 116 L. Ed. 2d 254 (1991); see also State v. Drummy, supra, 18 Conn. App. 309.

Our review of the record leads us to conclude that the court properly refused to allow the defendant to present evidence concerning the defense of necessity. The defendant could not satisfy the first element of the defense because he had a legal alternative available. In fact, he does not dispute that he could have dissolved Milex’s hen by substituting a bond with surety pursuant to General Statutes § 49-61 (a).

Ill

The defendant claims that the court improperly instructed the jury on the crime of larceny in the fourth degree by (1) repeatedly referring to “property or services” in an interchangeable or synonymous manner and (2) referring to the defendant’s not guilty plea. We disagree.

The defendant’s first claim of impropriety as to the charge is unpreserved. The defendant neither filed a request to charge nor noted an exception to the court’s instruction in this regard. The defendant has failed to seek review of his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or under the plain error doctrine. Practice Book § 60-5. This claim will not be reviewed.

The defendant also argues that the court’s instruction referring to his not guilty plea was reversible error. The court instructed the jury: “The defendant made certain statements to the police .... Any statements of the accused . . . admitted as evidence are to be considered by you in connection with all other evidence in this case. Made, as it was, out of this court, it is not like the sworn testimony offered here before you. It is to be considered by you as a declaration inconsistent with the accused’s plea of not guilty. It may be evidence circumstantial of the truth of the statements made in it. It is for you to determine what weight is given to it.”

While we do not invite comments on a defendant’s plea during jury instructions, we find this unartfully phrased instruction to be harmless error, if indeed error. The jury could have found the defendant’s statements to be admissions and, in some fashion, inconsistent with the position he took during his trial. Our review of the whole charge, however, leads us to conclude that it is not reasonably possible that the jury was misled by this instruction. “The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. McNair, 54 Conn. App. 807, 818, 738 A.2d 689, cert. denied, 251 Conn. 913, 739 A.2d 1249 (1999). Considered as a whole, the charge here properly presented the case to the jury so that no injustice resulted.

IV

Lastly, the defendant claims that the court improperly denied his request for new counsel or to proceed pro se. We disagree.

“The standard when reviewing a denial of a request for alternate counsel ... is whether the trial court abused its discretion in determining that a factual basis did not exist for granting the request.” (Internal quotation marks omitted.) State v. Marico, 14 Conn. App. 140, 144, 539 A.2d 1033, cert. denied, 208 Conn. 812, 546 A.2d 281 (1988). Practice Book § 3-10 requires that a court find good cause to grant a motion to withdraw. Our Supreme Court has held that “to work a delay by a last minute discharge of counsel there must exist exceptional circumstances.” (Internal quotation marks omitted.) State v. Robinson, 227 Conn. 711, 726, 631 A.2d 288 (1993). “We must distinguish between a substantial and timely request for new counsel pursued in good faith, and one made for insufficient cause on the eve or in the middle of trial.” State v. Drakeford, 202 Conn. 75, 82, 519 A.2d 1194 (1987). We find no exceptional circumstances or good cause here.

“[A] trial court has a responsibility to inquire into and to evaluate carefully all substantial complaints concerning court-appointed counsel . . . .” State v. Robinson, supra, 227 Conn. 726. The extent of that inquiry, however, lies within the discretion of the trial court. State v. Hansen, 39 Conn. App. 384, 398-99, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). “A trial court does not abuse its discretion by failing to make further inquiry where the defendant has already had an adequate opportunity to inform the trial court of his complaints.” Id., 399.

The defendant informed the court that he disagreed with his counsel over trial tactics and strategy, and that he had difficulty communicating with counsel in that regard. Our review of the record leads us to conclude that the court, having considered the claims made by the defendant and having found them not to be substantial, properly found that the defendant did not demonstrate good cause. The court did not abuse its discretion in finding the defendant’s claims to be insufficient to justify the appointment of new counsel. Further, the defendant did not assert his right to self-representation in a clear and unequivocal manner, but rather agreed to continue with his court-appointed attorney.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-125 (a) provides: “A person is guilty of larceny in the fourth degree when he commits larceny as defined in section 53a-119 and the value of the property or service exceeds five hundred dollars.”
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of properly or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       By an amended information, the state charged that “at the Town of Stratford, County of Fairfield, on or about the 25th day of November, 1996, [the defendant] with intent to deprive another of properly or to appropriate the same to himself or a third person, namely, the value of labor, professional services or parts, wrongfully took, obtained or withheld such properly from an owner, and the value of such property exceeded five hundred dollars, in violation of § 53a-125 . . . .”

       General Statutes § 49-61 (b) provides: “If the property is a motor vehicle and if no application that the lien be dissolved upon such substitution of a bond is made within thirty days of the date of the completion of the work upon the property by the bailor for hire, the bailee shall send a written notice to the Commissioner of Motor Vehicles, stating the engine number and chassis number thereof, the date the motor vehicle was left with him, the date the work was completed, the amount for which a lien is claimed, the registration thereof if any number plates are on the motor vehicle and the name of the owner or person who authorized the work to be done, and shall enclose a fee of five dollars. Such notice shall be placed on file by the Commissioner of Motor Vehicles and be open to public inspection. If the motor vehicle is subject to a security interest, the commissioner shall send the bailee the name and address of any lienholder as recorded on the certificate of title. Any sale under the provisions hereinafter stated shall be void unless the notice required in this section has been given to said commissioner, if the property is a motor vehicle.”

       General Statutes § 53a-118 (a) (5) provides: “An ‘owner’ means any person who has a right to possession superior to that of a taker, obtainer or withholder.”

       The hen is dependent on retention or possession of the property and is lost when possession is surrendered, even where the owner takes the property for his personal use without objection with an agreement that it will be returned. Fishell v. Morris, 57 Conn. 547, 551, 18 A. 717 (1889).

       General Statutes § 53a-118 (a) (1) provides: “ ‘Property’ means any money, personal property, real property, thing in action, evidence of debt or contract, or article of value of any kind. Commodities of a public utility nature such as gas, electricity, steam and water constitute property, but the supplying of such a commodity to premises from an outside source by means of wires, pipes, conduits or other equipment shall be deemed a rendition of a service rather than a sale or delivery of property.”

       Under these facts, the defendant therefore could not be charged with larceny in the third degree in violation of General Statutes § 53a-124 (a) (1), which governs larceny of property that “consists of a motor vehicle, the value of which is five thousand dollars or less,” or any greater degree of larceny, based on the value of the motor vehicle.

       General Statutes § 53a-119 (7) provides: "Theft of services. A person is guilty of theft of services when: (A) With intent to avoid payment for restaurant services rendered, or for services rendered to him as a transient guest at a hotel, motel, inn, tourist cabin, rooming house or comparable establishment, he avoids such payment by unjustifiable failure or refusal to pay, by stealth, or by any misrepresentation of fact which he knows to be false; or (B) (i) with intent to obtain railroad, subway, bus, air, taxi or any other public transportation service without payment of the lawful charge therefor or to avoid payment of the lawful charge for such transportation service which has been rendered to him, he obtains such service or avoids payment therefor by force, intimidation, stealth, deception or mechanical tampering, or by unjustifiable failure or refusal to pay, or (ii) with intent to obtain the use of equipment, including a motor vehicle, without payment of the lawful charge therefor, or to avoid payment of the lawful charge for such use which has been permitted him, he obtains such use or avoids such payment therefor by means of any false or fraudulent representation, fraudulent concealment, false pretense or personation, trick, artifice or device, including, but not limited to, a false representation as to his name, residence, employment, or driver’s license; or (C) obtaining or having control over labor in the employ of another person, or of business, commercial or industrial equipment or facilities of another person, knowing (hat he is not entitled to the use thereof, and with intent to derive a commercial or other substantial benefit for himself or a third person, he uses or diverts to the use of himself or a third person such labor, equipment or facilities.”

       General Statutes § 49-61 (a) provides: “The owner of any personal property which is held by one who claims to be a bailee for hire of that personal property and to have a lien in consequence thereof, or anyone having a legal or equitable interest in that property, may apply in writing to any judge of the Superior Court, within whose jurisdiction that personal property is held or the lienor resides, to dissolve the lien upon the substitution of a bond with surety.”


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. DUANE BANKS
    (AC 17786)
    Schaller, Hennessy and Mihalakos, Js.
    Argued January 27
    officially released August 1, 2000

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Warren Maxwell, senior assistant state’s attorney, and Edward Narus, assistant state’s attorney, for the appellant (state).

      Rosemarie Weber, certified legal intern, with whom were Susan M. Hankins, assistant public defender, and, on the brief, Katarzyna Maluszewski, certified legal intern, for the appellee (defendant).
   Opinion

SCHALLER, J.

The state appeals from the judgment of the trial court, following the defendant’s conviction of several crimes, imposing atotal effective sentence of imprisonment of twenty-five years to run concurrently with a previous criminal contempt sentence of three months. On appeal, the state claims that the trial court in this case improperly ordered that the defendant’s sentence was to run concurrently with a previously imposed criminal contempt sentence. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On November 29, 1995, the court, Espinosa, J., summarily found the defendant, Duane Banks, in criminal contempt of court on three separate occasions during a hearing on a motion for modification of bail. The court sentenced the defendant to consecutive prison terms of three months on each contempt finding, for a total effective sentence of nine months. The defendant filed a writ of error challenging the court’s three summary judgments of criminal contempt and moved for a stay of sentence. Our Supreme Court affirmed the first contempt judgment and the resulting three month sentence, and reversed the other two contempt judgments. Banks v. Thomas, 241 Conn. 569, 698 A.2d 268 (1997) (BanksI).

Prior to the decision in Banks I, the defendant was convicted on the robbery charges, and on November 15, 1996, the court, Spada, J., sentenced the defendant to a total effective sentence of twenty-five years. The court failed, however, to specify whether the sentence was to be concurrent with or consecutive to the contempt sentences previously imposed. On September 19, 1997, pursuant to Practice Book § 43-22 and General Statutes § 53a-37, the state filed a motion to correct an illegal sentence, seeking clarification on whether the sentences were to be concurrent or consecutive. At the hearing, Judge Spada clarified his original sentence, stating: “A sentence of twenty-five years is more than adequate and, therefore, the sentence imposed by [me] . . . is to run concurrent with the sentence imposed by Judge Espinosa of three months.” The court thereafter denied the motion to correct the sentence. The present appeal ensued.

The state claims that the court improperly ordered that the defendant serve his criminal contempt sentence and the sentence on the robbery charges concurrently. It is the state’s position that the trial court did not have the power to impose concurrent sentences for criminal contempt and a subsequent criminal conviction. We disagree.

The state raises an issue of first impression for this court when it questions whether a court has the authority to order that a criminal sentence run concurrently with a previously imposed criminal contempt sentence that was imposed by a different trial court. We con-elude that a trial court may run a criminal sentence concurrently with an earlier criminal contempt sentence.

A trial court generally is empowered with the discretion to award concurrent or consecutive sentences pursuant to General Statutes § 53a-37. “Under ... § 53a-37, the trial court is authorized to impose sentences on multiple counts either to run concurrently with each other or to run consecutively to each other. The determination whether to impose concurrent or consecutive sentences is a matter within the sound discretion of the trial court.” State v. King, 249 Conn. 645, 688, 735 A.2d 267 (1999). General Statutes § 53a-28, however, limits the application of § 53a-37 to “offenses.” In Wilson v. Cohen, 222 Conn. 591, 598-99, 610 A.2d 1177 (1992) , our Supreme Court stated that criminal contempt is not a criminal offense. See State v. Jackson, 147 Conn. 167, 170, 158 A.2d 166 (1960). Furthermore, § 53a-37 “is limited by its plain language to those instances in which a court imposes an additional criminal sentence on a defendant already serving a criminal sentence previously imposed by a Connecticut court.” Copeland v. Warden, 225 Conn. 46, 53, 621 A.2d 1311 (1993) . Criminal contempt, therefore, is not a matter within the scope of § 53a-37.

The failure of General Statutes § 53a-37 to address a court’s authority to impose a criminal sentence concurrent with a criminal contempt sentence does not necessarily deny the court such power. Our Supreme Court “long ago concluded that a criminal contempt proceeding should conform as nearly as possible to proceedings in criminal cases.” Wilson v. Cohen, supra, 222 Conn. 599. Moreover, this court has stated that “[t]he inherent right of courts to impose consecutive sentences has long been recognized at common law. . . . Determining whether two sentences will be concurrent or consecutive is part of the judicial function of imposing sentences upon a convict and is a matter for the determination of the court.” (Citations omitted; internal quotation marks omitted.) Copeland v. Warden, 26 Conn. App. 10, 12, 596 A.2d 477 (1991), aff'd, 225 Conn. 46, 621 A.2d 1311 (1993). It would be contrary to common-law principles to conclude that the power to impose a term of imprisonment concurrent with the sentence for criminal contempt is beyond the power of the trial court. See id. “We do not read statutes to depart from the common law without a clear indication of legislative intent to do so. . . .A statute should not be construed as altering the common law unless the intent to do so is fairly expressed in the statute.” (Citation omitted.) Leydon v. Greenwich, 57 Conn. App. 712, 721, 750 A.2d 1122, cert. granted on other grounds, 254 Conn. 904, 905, 755 A.2d 881, 882 (2000). Absent an affirmative statement to the contrary, the legislature did not intend to change the existing common-law doctrine in enacting § 53a-37. See id. Therefore, we conclude that the trial court properly imposed a sentence for a criminal offense to be served concurrent with a previously imposed sentence for criminal contempt.

The judgment is affirmed.

In this opinion the other judges concurred.

       After a jury trial, the defendant was convicted of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-8, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-48 (a), and robbery in the third degree in violation of General Statutes §§ 53a-136 and 53a-136a.

       General Statutes § 51-33a (a) provides: “Any person who violates the dignity and authority of any court, in its presence or so near thereto as to obstruct the administration of justice, or any officer of any court who misbehaves in the conduct of his official duties shall be guilty of contempt and shall be fined not more than five hundred dollars or imprisoned not more than six months or both.”

       The stay was granted on January 17, 1996.

       To ensure that the issue regarding the defendant’s sentence would not become moot, the state on July 25, 1997, filed a motion to maintain the stay of the defendant’s contempt sentence. By order dated September 24, 1997, our Supreme Court granted this motion until twenty days after the trial court’s action on the pending motions to correct the illegal sentence.

       General Statutes § 53a-37 provides: “Multiple sentences: Concurrent or consecutive, minimum term. When multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms in such manner as the court directs at the time of sentence. The court shall state whether the respective maxima and minima shall run concurrently or consecutively with respect to each other, and shall state in conclusion the effective sentence imposed. When a person is sentenced for two or more counts each constituting a separate offense, the court may order that the term of imprisonment for the second and subsequent counts be for a fixed number of years each. The court in such cases shall not set any minimum term of imprisonment except under the first count, and the fixed number of years imposed for the second and subsequent counts shall be added to the maximum term imposed by the court on the first count.”

       General Statutes § 53a-28 (a) provides in relevant part that “every person convicted of an offense shall be sentenced in accordance with this title.” (Emphasis added.)


author: LAVERY, C. J.

text:
    IN RE CHEYENNE A.

    (AC 18994)
    Lavery, C. J., and Schaller and Mihalakos, Js.
    Argued May 30
    officially released August 1, 2000

      Norman A. Pattis, for the appellants (respondents).

      Carolyn A. Signorelli, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Eugene P. Falco, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LAVERY, C. J.

The respondent parents (respondents) appeal from the judgment of the trial court terminating their parental rights in their daughter, Cheyenne A. On appeal, the respondents claim (1) that the court improperly determined that a prima facie showing of unexplained injuries constitutes clear and convincing evidence of the cause of those injuries and was evidence sufficient to support the termination of their parental rights under General Statutes (Rev. to 1997) § 17a-112 (c) (3) (C), and (2) that § 17a-112 violates their due process rights by permitting the state to terminate their parental rights absent a showing of clear and convincing evidence of child abuse. We affirm the judgment of the trial court.

The following procedural and historical facts are necessary for our resolution of this appeal. Cheyenne was bom on December 18, 1996. The commissioner of children and families filed a neglect petition with respect to Cheyenne on Febmary 7, 1997. The commissioner subsequently filed a coterminous petition for the termination of the respondents’ parental rights on April 25, 1997. The coterminous petition alleged that Cheyenne has been denied by reason of an act or acts of commission or omission by the respondents the care, guidance or control necessary to her physical, educational, moral or emotional well-being pursuant to § 17a-112 (c) (3) (C) and that pursuant to § 17a-112 (d), the required one year waiting period before termination could occur should be waived as necessary under the totality of the circumstances surrounding the child to promote her best interest.

The court held trial on numerous days in July through October, 1998. The court found that in February, 1997, Cheyenne was diagnosed as having seventeen fractures to her posterior rib cage, which were in various stages of healing. According to the testimony of her pediatrician, an emergency room physician and a pediatrician specializing in child abuse, the fractures were caused, mechanically, by severe, sustained compression, which usually occurs when a baby is shaken. The diagnosis was highly suggestive of child abuse. The respondents did not report that Cheyenne had sustained any trauma of a magnitude sufficient to cause her injuries, and brittle bone disease was ruled out as a cause. Medical personnel considered inadequate the explanations offered by the respondents, such as the child’s having rolled off a couch. After several months of reflection, advice and reconsideration, the respondents postulated that Cheyenne had suffered her injuries at times she was being cared for by her grandmother.

At the conclusion of trial, the court concluded that under the totality of circumstances, considering the best interest of the child, the one year requirement of § 17a-112 (d) should be waived. See footnote 2. Although the respondents had raised the specter that someone other than they was the perpetrator of Cheyenne’s injuries, the court was satisfied by clear and convincing evidence that Cheyenne had been denied by reason of an act or acts of commission or omission of the respondents, the care, guidance or control necessary for her physical well being in that the child had sustained serious, life threatening injuries that were not adequately explained. The court also made the requisite factual findings pursuant to § 17a-112 (e), now (d), and concluded that it was in the best interest of Cheyenne to terminate the parental rights of the respondents. The respondents appealed.

I

On appeal, the respondents claim first that the court improperly determined that a prima facie showing of unexplained injuries constitutes clear and convincing evidence of the cause of the injuries and is evidence sufficient to support termination of parental rights under § 17a-112 (c) (3) (C). We are not persuaded.

“The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)]; In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995). The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). In re Juvenile Appeal (84-3), 1 Conn. App. 463, 478, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). In re Luis C, supra, 166.

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. In re Michael M., [29 Conn. App. 112, 121, 614 A.2d 832 (1992)]; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991); In re Davon M., 16 Conn. App. 693, 696, 548 A.2d 1350 (1988). We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe’s Auto Parts, Inc. v. Manchester, [supra, 181 Conn. 222]; nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987). In re Kezia M., 33 Conn. App. 12, [17], 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993); In re Felicia D., 35 Conn. App. 490, 499, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994). . . . In re Eden F., 48 Conn. App. 290, 309, 710 A.2d 771 [(1998), rev’d on other grounds, 250 Conn. 674, 738 A.2d 141 (1999)].” (Internal quotation marks omitted.) In re Danuael D., 51 Conn. App. 829, 835-36, 724 A.2d 546 (1999).

The essence of the respondents’ claim is that the language of § 17a-112 (c) (3) (C), stating that “[n]onacci-dental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights” applies to the state’s burden of production and not to its burden of persuasion. The respondents argue that the statute permits the termination of parental rights on less than clear and convincing evidence in the presence of serious unexplained injuries. The respondents’ argument is misguided.

General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part that the court may grant a petition to terminate parental rights “if it finds by clear and convincing evidence ... (3) that . . . (C) the child has been denied, by reason of an act or acts or parental commission or omission, the care, guidance or control necessary for his physical . . . well-being. Nonacci-dental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights . . . .” Here, the court stated in its memorandum of decision that it was satisfied, by clear and convincing evidence, that Cheyenne had been “denied by reason of an act or acts of commission or omission of the parents, the care, guidance or control necessary for her physical well-being in that Cheyenne has sustained serious, life-threatening injuries that have been inadequately explained.”

“The phrase prima facie evidence means evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove.” (Internal quotation marks omitted.) State v. Watson, 165 Conn. 577, 595-96, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974). This court has previously dealt with a similar challenge to the termination of parental rights in In re Juvenile Appeal (85-2), 3 Conn. App. 184, 485 A.2d 1362 (1985), in which we stated, “The respondent’s final claim is that the court erred in finding that the petitioner proved by clear and convincing evidence that the children had been denied by reason of acts of parental commission or omission the care necessary for their general well-being .... The essence of the respondent’s claim in this regard is that direct evidence as to any acts of commission or omission was lacking and that the judgment rested upon speculation and inference.

“While it is true that evidence of the respondent’s acts of omission was largely circumstantial, that evidence was sufficient. The law does not distinguish between direct and circumstantial evidence as far as probative force is concerned. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). The standard of clear and convincing proof used in this case denotes a degree of belief that lies between the belief that is required to find the truth or existence of the issuable fact in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. Dacey v. Connecticut Bar Assn., 170 Conn. 520, 536-37, 368 A.2d 125 (1976). In a criminal case, the jury may draw reasonable, logical inferences from the facts proven as long as they do not resort to speculation and conjecture. State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980). In a case involving substantial circumstantial evidence, the cumulative impact of a multitude of facts, and not any one fact, may establish guilt. State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981). Insofar as circumstantial evidence can be and is routinely used to meet the higher standard of proof in a criminal prosecution, so can it be used in a case such as this where the applicable standard is that of clear and convincing proof.” (Internal quotation marks omitted.) In re Juvenile Appeal (85-2), supra, 3 Conn. App. 192-93.

In this case, as previously set forth in detail, the court found by clear and convincing evidence that Cheyenne suffered severe physical injuries in the form of seventeen rib fractures that occurred at different times. The respondents could not explain her injuries and, after a period of time and reflection, attributed them to Cheyenne’s grandmother. “It is not our function to retry the case or to pass upon the credibility of the witnesses; Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975) . . . .” In re Juvenile Appeal (85-2), supra, 3 Conn. App. 193. On the basis of our review of the record, we conclude that the evidence is sufficient to support the court’s conclusion that the respondents, by acts of omission or commission, denied Cheyenne the care necessary for her physical well-being.

II

The respondents’ second claim is that § 17a-112 violates their due process rights by permitting the state to terminate their parental rights absent a showing of clear and convincing evidence of child abuse. We decline to review this claim as the respondents did not distinctly raise it in the trial court; see Practice Book § 60-5; In re James L., 55 Conn. App. 336, 348, 738 A.2d 750, cert. denied, 252 Conn. 907, 743 A.2d 618 (1999); did not request Golding review on appeal; see State v. Laracuente, 57 Conn. App. 91, 94, 749 A.2d 34, cert. denied, 253 Conn. 923, 754 A.2d 798 (2000); and provided no constitutional analysis of their claim in their brief. See In re Adelina G., 56 Conn. App. 40, 43, 740 A.2d 920 (1999) (analysis rather than mere abstract assertion required).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 17a-112 (c), now (b), is applicable to all of the respondents’ claims and provides: “The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing pursuant to subsection (b) of section 17a-110 that such efforts are not appropriate, (2) that termination is in the best interest of the child, and (3) that over an extended period of time, which except as provided in subsection (d) oí'üús section shall not be less than one year, provided such time limit shall not apply to subparagraph (e) of this subsection: (A) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; (B) the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child; (C) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficientfor the termination of parental ■rights-, (D) There is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child; or (E) the parent of a child under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent’s parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families.” (Emphasis added.)

       General Statutes (Rev. to 1997) § 17a-112 (d) provides in relevant part: “The court may waive the requirement that one year expire prior to the termination of parental rights if it finds: (1) From the totality of the circumstances surrounding the child that such a waiver is necessary to promote the best interest of the child. . .

       The neglect and coterminous petitions concerning Cheyenne were consolidated for trial with a neglect petition, filed February 4,1997, concerning her older half-sister and an order of temporary custody and a neglect petition, filed September 29,1998, concerning her recently bom younger brother. All three cases centered on the serious, life threatening injuries Cheyenne had sustained during her first six weeks of life. There was no evidence of actual abuse to either the older half-sister or younger brother. The court found that Cheyenne’s older half-sister was not neglected, but that her younger brother was neglected and ordered protective services for him for a period of one year subject to certain conditions.

       The respondents do not challenge any of the findings the court made pursuant to General Statutes § 17a-l 12 (e), now (d), which provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). At oral argument, the respondents claimed during rebuttal that Golding review is warranted for claims of a constitutional nature. “The fact that the defendant has argued this claim is one of constitutional magnitude does not, alone, satisfy the requirements of Golding. The defendant’s failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned. See [State v. Barnett, 53 Conn. App. 581, 598, 734 A.2d 991, cert. denied, 250 Conn. 918, 736 A.2d 659 (1999)]; State v. Rodriguez, 44 Conn. App. 818, 823, 692 A.2d 846, cert. denied, 242 Conn. 902, 697 A.2d 363 (1997).” State v. Laracuente, 57 Conn. App. 91, 94, 749 A.2d 34, cert. denied, 253 Conn. 923, 754 A.2d 798 (2000).