author: SPEAR, J.

text:
    SKW REAL ESTATE LIMITED PARTNERSHIP v. MITSUBISHI MOTOR SALES OF AMERICA, INC.
    (AC 17397)
    O’Connell, C. J., and Spear and Dupont, Js.
    Argued December 9, 1998
    officially released November 30, 1999

      Linda L. Morkan, with whom, on the brief, was Diane R. Hayes, for the appellant (plaintiff).

      George M. Purtill, with whom, on the brief, was Seth Jacoby, for the appellee (defendant).
   Opinion

SPEAR, J.

The plaintiff, SKW Real Estate Limited Partnership (SKW), appeals from the judgment of the trial court rendered in favor of the defendant, Mitsubishi Motor Sales of America, Inc. (Mitsubishi), on SKW’s claim that Mitsubishi breached a commercial lease by failing to pay rent. The principal issue is whether the doctrine of judicial estoppel bars SKW from claiming here that a lease existed in light of SKW’s representation in an earlier foreclosure proceeding that the premises were vacant. SKW also claims that the trial court improperly concluded that SKW, an assignee of rent, could not recover because it was not the holder of a certain note that was secured by the assignment of rents. We reverse the judgment of the trial court on SKW’s complaint.

The record reveals the following factual and procedural history. In 1988, Seaview Realty (Seaview) borrowed $6.6 million from Connecticut National Bank (CNB) to construct a five unit commercial condominium known as the Auto Mall in Old Saybrook. Seaview executed a $6.6 million note to evidence the loan. The following year, Seaview obtained a second loan from CNB in the amount of $300,000, also evidenced by a note. These notes were secured by mortgages on the Auto Mall property and conditional assignments of rent.

Seaview thereafter leased unit one of the property to Mitsubishi for a ten year- term commencing on September 1,1990. Shortly thereafter, Mitsubishi sublet the premises to Seaview Automotive, Inc., doing business as Quality Mitsubishi (Quality), which vacated the premises in October, 1990. Mitsubishi continued to make its rental payments to Seaview and to search for a replacement dealer.

On or about June 23, 1993, CNB (then known as Shawmut Bank Connecticut, N.A.) assigned the notes, mortgages and two conditional assignments of rents for the Auto Mall to SKW. Seaview eventually defaulted on its obligations under the notes and Mitsubishi consequently began making its rental payments to SKW in accordance with the lease and assignment of rents. Shortly after Seaview’s default on the $300,000 note, SKW commenced an action to foreclose on units one and four of the Auto Mall.

During the foreclosure action, SKW obtained an appraisal of units one and four from Edward F. Heberger & Associates (Heberger). The Heberger appraisal report, dated July 8, 1994, included Mitsubishi’s lease of unit one as a factor in determining the value of unit one to be $1,460,000. Unit four was assigned avalué of $1,200,000 for a total appraised value of $2,660,000 for the two subject properties.

After Mitsubishi stopped paying rent in June, 1994, SKW hired Francis J. Buckley, Jr., to appraise the units. Buckley opined in an appraisal report dated October 9, 1994, that units one and four were worth $620,000 and $708,000 respectively for a total value of $1,328,000.

At the November 14, 1994 hearing on SKW’s motion for a judgment of strict foreclosure, SKW presented the Buckley appraisal. In response to an inquiry during the hearing, counsel for SKW told the court that the property was vacant. The foreclosure court thereafter granted SKW’s motion for a judgment of strict foreclosure and set the earliest possible law day twenty-one days later. SKW obtained title to the properties on December 14, 1994.

In September, 1994, SKW commenced the present breach of lease action against Mitsubishi for unpaid rent from July, 1994, through the end of the ten year term. Mitsubishi denied that it owed any rent and claimed, inter alia, that SKW should be prevented from prosecuting this claim because it had represented to the foreclosure court that the premises were vacant, thereby implying that there was no lease. The trial court rendered judgment for Mitsubishi after concluding that the doctrine of judicial estoppel prohibited SKW from asserting here that it had a valid lease with Mitsubishi, when, in the foreclosure proceeding, SKW took the contrary position. This appeal followed.

I

. We first address Mitsubishi’s claim that the trial court did not rely on judicial estoppel in rendering its decision. Mitsubishi asserts that the court found that SKW accepted Mitsubishi’s surrender of the lease, thereby relinquishing all of its rights against Mitsubishi. This assertion is based on two sentences of the trial court’s five and one-half page memorandum of decision. Each sentence notes that certain evidence and actions of SKW were consistent with an acceptance of the surrender of the lease. We are unpersuaded for several reasons.

First, Mitsubishi filed nine special defenses, including three that raise estoppel, but did not plead acceptance of a surrender of the lease. It now contends that the trial court ignored the estoppel claims that it did plead and decided the case on a defense that was not pleaded. To recite the claim is to refute it. Second, although the court found that certain matters were consistent with an acceptance of surrender, it did not find such acceptance as a fact. We note that our Supreme Court has held that acceptance of the surrender of a lease must be shown by “an unequivocal act” on the part of the lessor showing an intent to accept the surrender. Thomas v. Roper, 162 Conn. 343, 351, 294 A.2d 321 (1972). The trial court spoke of acts that were consistent with acceptance of surrender, but not of unequivocal acts.

Most importantly, the court’s legal analysis focused exclusively on estoppel, except for the two sentences on which Mitsubishi relies. In its memorandum, the trial court stated that “[t]o allow SKW to now take the position that the lease continues in full force, in effect, would upend the doctrine of judicial estoppel, and would be both unjust and unseemly.” The court clearly stated the basis for its decision by declaring: “Indeed, this court finds that the information provided to the court in the earlier matter will determine, based on the doctrine of judicial estoppel, the outcome of this action.” Mitsubishi’s claim that the trial court decided the case on the basis of SKW’s having accepted a surrender of the lease is without merit.

II

The court, in applying the doctrine of judicial estoppel, stated: “The foreclosure court relied upon [information that the premises were vacant] and evidence in reaching its judgment of strict foreclosure, setting a law day and determining a deficiency.” “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Hutchinson v. Andover, 49 Conn. App. 781, 787, 715 A.2d 831 (1998). We conclude that the trial court’s factual conclusions are clearly erroneous.

The court first determined that SKW took different factual positions in this case and in the foreclosure case. This conclusion is based on the court’s view that the failure to disclose the lease coupled with the representation that the premises were vacant was tantamount to a representation that no lease existed. In so concluding, the court failed to consider that the Buckley appraisal did disclose the claimed lease, but assigned no value to it. The report stated: “[The site] is currently vacant although it is reportedly still under lease to Mitsubishi.” Moreover, stating that premises are vacant is not logically inconsistent with claiming that the party who vacated did so in violation of a lease.

Because there was no equity in the properties, based on either the Heberger or the Buckley appraisal, counsel’s statement to the foreclosure court that the premises were vacant could not have been a significant factor in the court’s decision to render a judgment of strict foreclosure. The lack of equity virtually dictated such a judgment. “[T]he determination of value is a major factor in the decision whether to allow a foreclosure by sale rather than a strict foreclosure.” Farmers & Mechanics Bank v. Arbucci, 24 Conn. App. 486, 487, 589 A.2d 14, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991). “Once the trial court determined a value and found that the debt exceeded the value . . . there was no abuse of discretion in ordering strict foreclosure.” Id., 488. The early law date would undoubtedly have been set even if the Heberger valuation of the lease had been presented and accepted by the court because of the discrepancy between the total debt and the value of the property. We conclude that the trial court’s factual conclusion that the strict foreclosure and early law day resulted from the statement by SKW’s counsel that the premises were vacant is clearly erroneous.

The trial court also concluded that the foreclosure court relied on the vacancy representation in determining a deficiency. Mitsubishi makes no claim that such a representation was made at the deficiency judgment hearing and the record discloses none. In addition, “the value placed on the property by the court for the purposes of rendering judgment of strict foreclosure and setting law days was irrelevant to a subsequent deficiency judgment proceeding.” Eichman v. J & J Building Co., 216 Conn. 443, 457, 582 A.2d 182 (1990). The trial court improperly concluded that the statement that file premises were vacant affected the determination of the deficiency.

We now address the estoppel issue. Our Supreme Court recently stated, in the context of an equitable estoppel claim, that “[t]here are two essential elements to an estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist.” (Internal quotation marks omitted.) W v. W, 248 Conn. 487, 496-97, 728 A.2d 1076 (1999).

We do not have to determine whether Connecticut recognizes the doctrine of judicial estoppel because there is no factual basis to apply any estoppel principles here. Whether the estoppel be equitable or judicial, both types require misleading conduct by a party that causes another to act based on that conduct. “The party claiming estoppel has the burden of proof and whether that burden has been satisfied in a particular case is a question of fact.” Soares v. Max Services, Inc., 42 Conn. App. 147, 170, 679 A.2d 37, cert. denied, 239 Conn. 915, 682 A.2d 1005 (1996). We conclude that Mitsubishi failed to carry that burden in the trial court because the court had no factual foundation for applying the doctrine of judicial estoppel. SKW’s action to collect the rent is, therefore, not barred by the doctrine.

Ill

The trial court also concluded that SKW could not collect on the underlying $6.6 million note because it did not have possession of that note. SKW did not sue on a note and made no such allegations in its complaint. This action is neither a mortgage foreclosure nor a deficiency judgment proceeding. Rather, SKW brought this suit as an assignee of rents pursuant to an assignment. By paying the rent through June, 1994, Mitsubishi acknowledged the validity of the assignment. Moreover, the foreclosure action at issue in the judicial estoppel claim was based on the $300,000 note. The trial court’s ruling with respect to the $6.6 million note had no bearing on the case.

The judgment for Mitsubishi on SKW’s complaint is reversed and the case is remanded for a new trial on the complaint only.

In this opinion the other judges concurred.

       Mitsubishi has not appealed from the judgment for SKW on Mitsubishi’s counterclaim.

       The trial court took judicial notice of the foreclosure action titled, SKW Real Estate v. Seaview Realty, Superior Court, judicial district of Middlesex, Docket No. CV-94-0071838.

       The first sentence appears on page three of the memorandum of decision and states: '‘In any event, it appears to this court that the evidence offered in the foreclosure proceeding and the responses of counsel to inquiry of the court were consistent, with an acceptance of the surrender, which rendered the premises vacant.” (Emphasis added.) The second sentence begins at the bottom of page five and states: “The court does find that SKW’s action regarding the appraisal arid the equipment stripped from the premises are consistent with an acceptance of the surrender of the lease regardless of communications to the contrary.” (Emphasis added.)

       Heberger valued unit one with the lease at $1,460,000. Buckley valued the unit at $620,000, assigning no value to the lease. Even if we assume that the $840,000 difference is the value of the lease, there would still be no equity. Adding $840,000 to Buckley’s valuation would increase the total value of the properties to $2,168,000. This is less than the total debt of over $2,700,000.

       Mitsubishi offers no authority in support of its implied claim that SKW was under an obligation to advise the deficiency court of the higher Heberger appraisal.

       In a leading case on judicial estoppel by the United States Court of Appeals for the Second Circuit, the court stated that there are two elements to the doctrine: “First, the party against whom the estoppel is asserted must have argued an inconsistent position in a prior proceeding; and second, the prior inconsistent position must have been adopted by the court in some manner.” Bates v. Long Island R. R. Co., 997 F.2d 1028, 1038 (2d Cir.), cert. denied, 510 U.S. 992, 114 S. Ct. 550, 126 L. Ed. 2d 452 (1993).

       The trial court’s decision on this issue is as follows: “The court also finds that SKW has never been the holder of the underlying note in this action and is therefore prohibited from collecting upon it. The implication of New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 680 A.2d 301 (1996), is that the lack of possession of the note is fatal. SKW’s claim is unpersuasive, as it did not lose the note; it was never in possession of the note. See also Century Mortgage Co. v. George, 35 Conn. App. 326, 646 A.2d 226 [cert. denied, 231 Conn. 915, 648 A.2d 150] (1994).”

       Mitsubishi claims that “[t]o the extent that SKW claims it has always been the holder of the $300,000 note, any remaining debt after SKW’s foreclosure has already been satisfied” and that the foreclosure resulted in a merger of any remaining debt on the $300,000 note “with SKW’s title to the property, thereby extinguishing the debt.” The trial court did not address these claims and, therefore, we will not review them.

       Mitsubishi offers several alternative grounds for affirmance: (1) certain equipment was sold or removed and the removal constituted a constructive eviction, (2) the failure of SKW and its predecessor to pay back taxes, to the extent that a tax sale was threatened, amounted to a constructive eviction of Mitsubishi; (3) SKW breached its obligation pursuant to a subordination, attornment and nondisturbance agreement by naming Mitsubishi as a defendant in the foreclosure action; and (4) SKW wrongfully sought possession of the premises in violation of Mitsubishi’s right to quiet eiqoyment. Each of these grounds requires factual findings by the trial court, but the trial court made no such findings. Mitsubishi’s brief points only to evidence on which the court could have made such findings. This record is not adequate for us to review any of the claimed alternative grounds for affirmance.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE MARTIN K.

    (AC 18917)
    O’Connell, C. J., and Foti and Daly, Js.
    Argued September 20
    officially released November 30, 1999

      Mary Ann Barile, for the appellant (respondent mother).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

       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

PER CURIAM.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her son. The sole issue is whether the court had clear- and convincing evidence to support its decision to terminate the parental rights of the respondent. We affirm the judgment of the trial court.

On appeal, the respondent asks this court to review the trial court’s findings of fact. It is well established that an appellate court cannot retry the facts. Our review is limited to determining whether the trial court’s judgment was clearly erroneous or contrary to law. Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 290-91, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998).

In this case, the court filed a detailed and comprehensive memorandum of decision reciting the facts that it found to support its decision. “This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. ... In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Citations omitted; internal quotation marks omitted.) Wieler v. Commissioner of Correction, 47 Conn. App. 59, 61, 702 A.2d 1195, cert. denied, 243 Conn. 957, 704 A.2d 806 (1997). Because the court’s findings were not clearly erroneous, we cannot disturb them.

The judgment is affirmed.

       The trial court terminated the parental rights of the respondent mother, who participated in the termination proceedings, and two putative fathers, who did not appear at trial. Only the respondent mother has appealed. We refer to her as the respondent in this opinion.


author: DUPONT, J.

text:
    IN RE JOHN G.

    (AC 17965)
    Lavery, Landau and Dupont, Js.
    Argued September 22
    officially released November 30, 1999

      David B. Rozwaski, for the appellant (respondent mother).

      Denise Lillo Vecchio, assistant attorney general, with whom, on the brief, were Richard Blumenthai, attorney general, and Susan T. Pearlman and Stephen G. Vitelli, assistant attorneys general, for the appellee (petitioner).

      Mary Ann Barite, 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

DUPONT, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her child, John G. On appeal, the respondent claims that the trial court improperly found that (1) she failed to achieve sufficient personal rehabilitation, (2) she abandoned John, (3) no ongoing parent-child relationship existed between her and John for more than one year and (4) termination of her parental rights was in the best interest of John. We affirm the judgment of the trial court.

In a comprehensive memorandum of decision, dated November 14,1997, the court found the following facts. John was born prematurely on July 15,1984, and experienced oxygen deprivation and a cerebral hemorrhage at birth. Due to his premature birth and multiple medical problems, he was hospitalized continuously for several months following his birth.

Following his discharge from the hospital on October 5, 1984, John was immediately placed in licensed foster care after the petitioner, the commissioner of children and families (commissioner), obtained an order of temporary custody. It was alleged that the respondent was living under conditions detrimental to John’s health and inappropriate for his proper care, given his medical condition. On that same date, the commissioner filed a neglect petition with respect to John. On February 21, 1985, the petition was granted, and John was committed to the care of the commissioner for a period not to exceed eighteen months. The commitment was thereafter extended.

John has multiple disabilities and is mentally challenged. He is paralyzed in both legs, requires extensive services and was diagnosed as suffering from cerebral palsy in October, 1985. The respondent consistently visited John for the first year he was in placement. Her visitation decreased markedly after John was diagnosed with cerebral palsy.

The respondent was encouraged to go to the child’s rehabilitation center to learn about his needs and the exercises that he would need to perform while he was in her care. The respondent was also asked to address concerns about the physical condition in the home where she was residing, including the frequent lack of heat, since John’s medical problems made him susceptible to pneumonia. A visitation plan was devised whereby the respondent could have contact with her son three times each week. The department of children and families (department) provided her with a bus pass, and there was evidence that she did not live far away from her son.

Despite the foregoing, the respondent’s visits with John were sporadic. Her last visit occurred during 1994 or 1995. According to the respondent’s own testimony, she visited John on a total of sixteen occasions between July, 1989, and February, 1996, when the present termination petition was filed. She could have visited John twelve times each month during that period. Furthermore, the respondent did not obtain housing accessible to persons with disabilities such as John’s, which would have enabled John to visit the respondent at her home.

For approximately ten year's, John lived with a foster parent who has since died. In 1994, he was relocated to a specialized foster home operated by a pediatric nurse, where he currently resides.

On February 5,1996, the commissioner filed the present termination of parental rights petition with respect to John. The petition initially alleged four grounds for termination: abandonment; parental failure to achieve rehabilitation; lack of ongoing parent-child relationship; and denial by acts of commission or omission of necessary care, guidance or control. The commissioner subsequently withdrew the allegations of denial of necessary care, guidance or control at the conclusion of trial. The trial began on November 4,1996, and continued on various dates over a period of approximately seven months. The petitioner placed twenty-seven exhibits into evidence and offered testimony from nine witnesses, including a court-appointed psychologist. The respondent testified on her own behalf but did not offer documentary evidence. Counsel for the minor child participated in the proceedings but did not offer evidence or testimony.

The court found that the commissioner had proven all three statutory grounds for termination by clear and convincing evidence and that termination was in John’s best interest. The court rendered judgment terminating the respondent’s parental rights on November 14,1997. This appeal followed.

“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. . . .

“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) .... 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, [181 Conn. 217, 222, 435 A.2d 24 (1980)]; 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. .. .

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child. ... In re Danuael D., 51 Conn. App. 829, 836-37, 724 A.2d 546 (1999); In re Roshawn R., 51 Conn. App. 44, 51-52, 720 A.2d 1112 (1998).” (Internal quotation marks omitted.) In re Denzel A., 53 Conn. App. 827, 831-32, 733 A.2d 298 (1999).

I

The respondent first claims that the trial court improperly concluded that she had failed to achieve sufficient personal rehabilitation. We do not agree.

Pursuant to General Statutes (Rev. to 1995) § 17a-112 (b) (2), now § 17a-112 (c) (3) (B), a trial court may terminate parental rights when the parent “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, [the] parent could assume a responsible position in the life of the child . . . .” “ ‘Personal rehabilitation’ as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent.” In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). The statute does not “require the parent to be able to assume full responsibility for a child, without the use of available support programs.” Id. “Our Supreme Court has held that § [17a-112] (b) (2) [now § 17a-112 (c)(3)(B)] requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. ... A determination by the trial court under § [17a-112] (b) (2) [now § 17a-112 (c)(3)(B)] that the evidence is clear and convincing that the parent has not rehabilitated herself will be disturbed only if that finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Citations omitted; internal quotation marks omitted.) In re Danuael D., supra, 51 Conn. App. 837-38; see also In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999).

In this case, there was ample evidence to support the court’s finding of failure to achieve rehabilitation. Throughout John’s thirteen years in foster care, the respondent was offered visitation, transportation and a psychiatric evaluation. The court found that despite the efforts made by the department at reunification, the respondent visited her child only minimally during the past decade and not at all since John entered his present foster home in August, 1994. The respondent failed to obtain housing that was accessible to John, she participated in John’s therapy at the rehabilitation center on a sporadic basis, and there was no evidence that she ever learned the exercises required for his cerebral palsy condition. Furthermore, the respondent failed to remedy the physical conditions in her home that were adverse to John’s well-being.

The respondent challenges the court’s conclusions by pointing to her own testimony. Specifically, she testified that she tried to learn about her son’s disabilities but was harassed by social workers at the rehabilitation center, that she attempted on a number of occasions to see her son at school and at the rehabilitation center but was often told to wait in separate rooms so as not to disrupt John’s therapy or was unable to make arrangements with department workers, that she was distrustful of the department, that she tried to give gifts to John but did not do so because they had to go through the department first, and that she failed to receive the bus passes from the department in a timely fashion. She claimed that she had always expressed love for and interest in her son and a continuing desire to care for him.

The court heard and rejected the respondent’s testimony. The court stated in its memorandum of decision: “It was obvious during [the respondent’s] testimony that the respondent harbors an intense distrust of [the department] and its workers. The mother admitted this and claimed that [the department] had ‘kidnapped’ John from her at the hospital after he was born. However, the court ascribes little weight to [the respondent’s] explanations about her lack of visits with John. It finds that [the respondent’s] failure to be involved in the life of her son for nearly a decade resulted from her own inertia, and not from the malfeasance or misfeasance of the [commissioner], [The department] offered the respondent numerous opportunities to become involved with John’s treatment and to visit him at the [rehabilitation center and at his school]. It provided her with a bus pass. Unfortunately, [the respondent] did not visit with her son or maintain an active interest in him on a regular ongoing basis.”

The respondent’s claim relates to the weight to be given to the testimony. “It is axiomatic that the trial court, as trier of fact, is in the best position to judge the credibility of witnesses.” In re Danuael D., supra, 51 Conn. App. 838. The trial court found by clear and convincing evidence that the respondent failed to achieve a sufficient degree of personal rehabilitation and concluded that “[g]iven John’s age, physical and mental challenges, his need for permanency and the excessively protracted amount of time he has been in foster care, it would be inappropriate to allow [the respondent] further time to pursue reunification, because she cannot assume a responsible position in John’s life within a reasonable time.” We are unable to conclude that the court’s findings as set out in its memorandum of decision are clearly erroneous and therefore affirm its conclusion.

II

The respondent next claims that the trial court improperly determined that she had abandoned John. We disagree.

“Abandonment focuses on the parent’s conduct. . . . A lack of interest in the child is not the sole criterion in determining abandonment. . . . General Statutes [Rev. to 1995] § 17a-112 (b) (1) [now § 17a-112 (c) (3) (A)] defines abandonment as the [failure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child .... Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child. . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child’s welfare.

“Section 17a-112 (b) (1) does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern. . . .

“The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance. ... In re Kezia M., [33 Conn. App. 12, 17-18, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993)].” (Internal quotation marks omitted.) In re Roshawn R., supra, 51 Conn. App. 52-53.

The record in this case clearly supports the court’s decision that statutory abandonment has occurred with respect to John. The respondent testified that she last saw John in 1994 or 1995. John’s present foster mother testified that John had been living with her for more than two years when the respondent first contacted her, and that this occurred one week before the start of the termination trial. Despite the numerous opportunities given the respondent to visit with her son, she visited with him only sixteen times during a six year period. Testimony from department social workers established that the respondent never attended periodic treatment reviews conducted in connection with John’s case and that she has not inquired about John during contacts with social workers in recent years. Moreover, John does not recognize the respondent as a family member.

The court found by clear and convincing evidence that the respondent had abandoned John. It is evident from the facts found by the court that the respondent failed to manifest a reasonable degree of interest, concern or responsibility for her son’s welfare. We conclude that the court’s finding that the respondent abandoned her son was not clearly erroneous.

Ill

The respondent next claims that the trial court improperly found that there was no ongoing parent-child relationship and to allow further time for the establishment of such a relationship would be detrimental to the child. We are not persuaded.

“[General Statutes (Rev. to 1995) §] 17a-112 (b) (4) [now § 17a-112 (c) (3) (D)] provides for the termination of parental rights if, upon clear and convincing evidence, it is proved that no ongoing parent-child relationship has existed in excess of one year. This part of the statute requires the trial court to undertake a two-pronged analysis. First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child’s best interest to allow time for such a relationship to develop. In re Juvenile Appeal (Anonymous), [177 Conn. 648, 670, 420 A.2d 875 (1979)]; In re Michael M., [supra, 29 Conn. App. 128]; In re Megan M., [supra, 24 Conn. App. 340]; In re Juvenile Appeal (84-6), 2 Conn. App. 705, 708, 483 A.2d 1101 (1984), cert. denied, 195 Conn. 801, 487 A.2d 564 (1985); In re Juvenile Appeal (84-3), 1 Conn. App. 463, 477, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984).

“It is reasonable to read the language of no ongoing parent-child relationship to contemplate a situation in which, regardless of fault, a child either has never known his or her parents, so that no relationship has ever developed between them, or has definitively lost that relationship, so that despite its former existence it has now been completely displaced. In re Juvenile Appeal (Anonymous), [supra, 177 Conn. 670]; In re Jessica M., 217 Conn. 459, 470, 586 A.2d 597 (1991); In re Juvenile Appeal (84-6), supra, [2 Conn. App.] 708-709. In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance. See In re Michael M., [supra, 29 Conn. App. 129]; In re Megan M., [supra, 24 Conn. App. 341], The ultimate question is whether the child has no present memories or feelings for the natural parent. In re Jessica M., supra, 468; In re Juvenile Appeal (84-6), supra, 709. Feelings for the natural parent connotes feelings of a positive nature only. In re Jessica M., supra, 469; In re Juvenile Appeal (84-6), supra [709], In re Kezia M., [supra, 33 Conn. App. 20-21].” (Internal quotation marks omitted.) In re Tabitha T., 51 Conn. App. 595, 601-602, 722 A.2d 1232 (1999).

In this case, David Mantell, a clinical psychologist, testified that he did not observe a parent-child relationship between the respondent and John. He also testified that although John remembered a sibling, he did not display any memories of the respondent. Mantell also testified that further time should not be permitted for the respondent to establish a relationship with John and that this child requires a permanent home. On the basis of the respondent’s infrequent contacts with John over the past six years and the testimony of Mantell, the court concluded that “John has no positive feelings for, or memories of, the biological mother.” The court found by clear and convincing evidence that no ongoing parent-child relationship existed between the respondent and John for a period of time in excess of one year, and that it would be detrimental to the child’s best interests to allow the respondent further time to establish or reestablish a parent-child relationship.

Here, the evidence credited by the court supports its conclusion that no ongoing parent-child relationship exists between the respondent and John. “The psychological testimony from professionals is rightly accorded great weight in termination proceedings.” (Internal quotation marks omitted.) In re Kezia M., supra, 33 Conn. App. 22. Our thorough review of the entire trial record indicates that the findings of the court are supported by clear and convincing evidence.

IV

The respondent’s final claim is that the trial court improperly found that it was in the best interests of John to terminate the respondent’s parental rights because the commissioner did not make reasonable efforts to reunify John with the respondent. We disagree.

“In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the [respondent’s] parental rights is not in the best interests of the child. In arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112 (d)].” In re Denzel A., supra, 53 Conn. App. 833. The first and second factors concern the respondent’s claim on appeal. They require the court to make findings regarding “[t]he timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child -with the parent”; General Statutes (Rev. to 1995) § 17a-112 (d) (1); and “whether the department of children and families has made reasonable efforts to reunite the family pursuant to the federal Child Welfare Act of 1980, as amended . . . .” General Statutes (Rev. to 1995) § 17a-112 (d) (2).

The court, in its memorandum of decision, made specific findings regarding the seven statutory factors enumerated in § 17a-112 (d). Because only the first and second factors are at issue, we limit our discussion to them. With respect to the department’s efforts at reunification, the court’s findings can be summarized as follows. The court found that the respondent was offered a number of services aimed at reunification, including overnight visitation, visitation at the school and rehabilitation center, a bus pass to facilitate transportation, a psychological evaluation and various other social worker services. The court found by clear and convincing evidence that “the respondent mother was offered timely and appropriate reunification services, and that she unfortunately failed to take advantage of them.” The court further found by clear and convincing evidence that the department made reasonable and appropriate efforts to reunite the respondent with her child but that the respondent failed to become more than minimally involved in John’s life.

The court’s findings concerning the department’s efforts at reunification are factually supported by the record and are not clearly erroneous. John is now thirteen years old and has been in state foster care since he was released from the hospital after his premature birth. He has been in his present foster home since August, 1994, and testimony at trial established that John’s emotional condition improved since his placement in this home. His current foster mother testified that he is calmer, more secure and happier. She and her husband are willing to adopt John. Mantell testified that it would be very harmful to return John to the respondent, a woman he does not know. Accordingly, the court correctly concluded that the commissioner had established by clear and convincing evidence that it is in John’s best interest that the respondent’s parental rights be terminated so that he may be freed for adoption.

We conclude that the court’s findings are not clearly erroneous, are legally correct and support the conclusions that the respondent has not rehabilitated herself and has abandoned John, that no ongoing parent-child relationship has existed for more than one year and that it is in the best interest of the child that the respondent’s parental rights be terminated.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent father did not appear at trial and has not appealed from the trial court’s judgment terminating his parental rights with respect to John. We refer in this opinion to the respondent mother as the respondent.

       On May 9,1991, the commissioner filed a second neglectpetition concerning John after the child’s original commitment was inadvertently permitted to expire before a further extension was sought. John was again abdicated a neglected child and committed to the custody of the commissioner on June 5, 1991. Extension of commitment petitions were subsequently filed. After the present termination petition was filed and the proceedings began but before the termination trial had ended, John’s commitment expired. The commissioner requested and received an ex parte order of temporary custody and filed new neglect and uncared for petitions. Counsel for the respondent filed a motion to dismiss claiming that the expiration of commitment while the termination trial was in progress deprived the court of subject matter jurisdiction. The court, relying on General Statutes § 17a-112 (a), General Statutes (Rev. to 1995) § 46b-129 (e), as amended by Public Acts 1995, No. 95-238, § 4, and In re Corey E., 40 Conn. App. 366, 369, 671 A.2d 396 (1996), denied the respondent’s motion. The respondent has not alleged on appeal any impropriety concerning the court’s decision denying her motion to dismiss. We note, however, that subject matter jurisdiction does exist because the court does have the power to hear and decide cases of this type. See Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999).

       The commissioner previously filed a termination of parental rights petition on December 14, 1987, which was withdrawn on July 17, 1989.

       To prevail on her claim that the court improperly terminated her parental rights, the respondent must successfully challenge all of the bases of the judgment terminating her parental rights. “If [any] of the grounds on which the trial court relied are upheld on appeal, the termination of parental rights must stand.” In re Angellica W., 49 Conn. App. 541, 550, 714 A.2d 1265 (1998); see also In re Luis C., supra, 210 Conn. 170. Even though we conclude that the court’s finding concerning the respondent’s failure to achieve sufficient rehabilitation is not clearly erroneous, we address the respondent’s other claims. See In re Roshawn R., supra, 51 Conn. App. 54-56; In re Kezia M., 33 Conn. App. 12, 17, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).

       Mantell testified as follows: “I see no evidence of a relationship between the mother and son. The child was generally avoidant of his mother. Her behavior was intrusive and reflected poor judgment. It caused considerable distress to the child who, once the mother left the room, again asked his foster mother, ‘Mommy, I want to go home.’ It is my impression that the mother and son visit was extremely stressful for this child. The mother appears to be thoroughly out of touch with her son’s emotions, his day-today life and her impact upon him. As he left distressed, she was happy. I do not recommend that the child be subjected to another stressful visitat ion of the kind that I witnessed today.”


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. JAMES BROWN
    (AC 17606)
    Spear, Mihalakos and Daly, Js.
    Argued September 29
    officially released November 30, 1999

      Francis L. O’Reilly, special public defender, for the appellant (defendant).

      Richard F. Jacobson, supervisory assistant state’s attorney, with whom, on the brief, was Jonathan Benedict, state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, James Brown, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the second degree in violation of General Statutes § 53a-102 (a) and threatening in violation of General Statutes § 53a-62 (a) (l). The defendant claims that (1) the trial court’s questioning of a witness deprived the defendant of a fair trial, (2) the trial court’s treatment of defense counsel deprived the defendant of his right to a fair trial before an impartial judge and jury and (3) the trial court’s sequestration order was violated by the interaction outside the courtroom between the victim’s brother and a sequestered witness. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 23, 1996, at approximately 4 a.m., the victim, Cindy Perez, was awakened by a noise and observed an intruder crouched down and moving about the room. The intruder then jumped on the victim’s bed and kneeled over her. The victim’s five month old son was also in the house at the time. She pleaded with intruder not to hurt her son. The intruder then placed his hand over the victim’s mouth and verbally threatened her. She recognized the intruder’s voice as that of the defendant, whom she had known for four or five months. The defendant then removed his hand from the victim’s mouth and asked her for money. A brief conversation ensued while the defendant held a nine millimeter gun to the victim’s head. The victim eventually gave the defendant jewelry. After having been in the house for about ten to fifteen minutes, the defendant left through a second floor window. The victim eventually contacted the police and told an officer that the intruder was a man she knew named “James.” Detective Carl Leonzi, Jr., of the Bridgeport police department was assigned to the case. The victim was not very cooperative throughout Leonzi’s investigation. At trial, the court entered a sequestration order prohibiting all witnesses from either discussing their testimony with other witnesses or assisting them with their testimony.

I

The defendant’s first claim is that the trial court deprived him of a fair trial when it “shed its cloak of neutrality and assumed the role of advocate for the state” in its questioning of Leonzi. We disagree.

“Due process of law guarantees a criminal defendant a fair trial before an impartial judge and jury in a neutral atmosphere. U.S. Const., amend. XIV; Conn. Const., art. I § 8; State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985); State v. Gordon, 197 Conn. 413, 424D, 504 A.2d 1020 (1985).” State v. Smith, 200 Conn. 544, 549, 512 A.2d 884 (1986). In certain circumstances, the court has a discretionary right to question witnesses. Id.

Leonzi was questioned by counsel concerning his investigation of the incident and his relationship with the victim and the defendant. At the conclusion of the examination by defense counsel, the court began its own inquiries. “[T]he trial judge is free to question witnesses or otherwise intervene in a case in an effort to clarify testimony and assist the jury in understanding the evidence so long as he does not appear partisan in doing so.” State v. Tatum, 219 Conn. 721, 740, 595 A.2d 322 (1991); State v. Bember, 183 Conn. 394, 401, 439 A.2d 387 (1981). Although the court’s questions may have brought out some of the strengths and weaknesses of either party’s case, its aim was to shed more light on the case and was in no way prejudicial to either side. See State v. Echols, 170 Conn. 11, 14, 364 A.2d 225 (1975). “[W]hen it clearly appears to the judge that for one reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain silent. On the contrary, the judge may, by questions to a witness, elicit relevant and important facts.” (Internal quotation marks omitted.) State v. Tatum, supra, 740; State v. Fernandez, supra, 198 Conn. 11.

Furthermore, the court in this matter issued a curative instruction to the jury. “Our appellate courts have always given great weight to curative instructions in assessing claimed errors; see State v. Fernandez, supra, 198 Conn. 17; State v. Drouin, 12 Conn. App. 101, 105, 529 A.2d 740 (1987); especially in assessing a defendant’s claim of prejudice. State v. Smith, supra, 200 Conn. 552; see State v. Drouin, supra, 101.” State v. Pharr, 44 Conn. App. 561, 577, 691 A.2d 1081 (1997).

The court’s questioning of Leonzi concerning his investigation and his relationship with the victim did not rise to such a level of prejudice as to affect the defendant’s overall case. The court should be careful not to prejudice the rights of any party by its questioning of witnesses, and caution should be used by the court to confine itself to clarification of testimony already given. “In whatever he does, the trial judge should be cautious and circumspect in his language and conduct.” (Internal quotation marks omitted.) Fair v. Warden, 211 Conn. 398, 413-14, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 107 L. Ed. 2d 514 (1989). “Where that does not occur, however, a defendant is not entitled to a new trial unless he can show that prejudice resulted from the trial court’s actions. Id. [414]; see State v. Echols, supra, 170 Conn. 16.” State v. Pharr, supra, 44 Conn. App. 577. Our review of the record indicates that the court was neutral throughout its questioning of Leonzi, and it actions had no prejudicial effect against the defendant.

II

The defendant next claims that the trial court’s improper treatment of his trial counsel deprived him of a fair trial before an impartial judge and jury. Because the defendant did not preserve this claim at trial, we must determine whether he can prevail under the four-prong test articulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). If the defendant fails to meet any one of the four parts of Golding, his claim will fail. Id., 240. “The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” Id. The first two prongs of Golding address the reviewability of the claim, and the last two involve the merits of the claim. State v. Beltran, 246 Conn. 268, 275, 717 A.2d 168 (1998); State v. Askew, 55 Conn. App. 34, 38, 739 A.2d 274 (1999).

We conclude that the defendant has not satisfied the second prong of Golding and therefore decline to review his claim. It is the defendant who “bears the responsibility of demonstrating that his claim is indeed a violation of a fundamental constitutional right. Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label.” State v. Golding, supra, 213 Conn. 240.

In this case, the defendant claims that on several occasions the court unduly disciplined his counsel, which gave the jury a negative impression and was prejudicial to the defendant. At no time during these incidents, however, did the defense counsel object to the court’s actions or move for a mistrial. Furthermore, as stated previously, the trial court issued curative instructions to the jury. See footnote 5. The defendant has not demonstrated that his claim implicates his due process right to a fair trial and, as a result, fails to satisfy the second prong of Golding. We therefore decline to review this claim.

Ill

The defendant’s final claim is that the requirement of sequestration was violated by the interaction outside the courtroom between the victim’s brother and the victim, a sequestered witness. We disagree.

Sequestration orders assure that witnesses will testify solely on the basis of their personal knowledge. Geders v. United States, 425 U.S. 80, 87, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976); State v. Robinson, 230 Conn. 591, 600, 646 A.2d 118 (1994). “The obvious purpose of sequestering a witness while another is giving his testimony is to prevent the one sequestered from shaping his testimony to corroborate falsely the testimony of the other.” (Internal quotation marks omitted.) State v. Williams, 169 Conn. 322, 331, 363 A.2d 72 (1975). In the present case, it was impossible for any such corroboration to occur since one of the parties involved in the alleged violation of the sequestration order, the victim’s brother, was never called as a witness but was merely a spectator to the proceedings. A sequestration order, without additional restrictions, simply prohibits a sequestered witness from being in the courtroom when he or she is not testifying. Id.

The defendant relies principally on State v. Falby, 187 Conn. 6, 25-27, 444 A.2d 213 (1982), which held that it was improper for the state to supply its expert witnesses with a transcript of the testimony by the defendant’s expert, in violation of a sequestration order. Unlike the situation in Falby, however, there is no allegation in the present case that someone supplied a transcript to prospective sequestered witnesses. Rather, in this case a spectator heard spoken testimony and relayed it to a previously sequestered witness. The defendant’s sister, who alleged that there were conversations between the victim’s brother and the victim, failed to hear any substantial dialogue between them. Therefore, it is impossible to capture the true nature of their conversations.

General Statutes § 54-85a provides: “In any criminal prosecution, the court, upon motion of the state or the defendant, shall cause any witness to be sequestered during the hearing on any issue or motion or any part of the trial of such prosecution in which he is not testifying.” (Emphasis added.) The sequestration order in this case applied only to witnesses and not to court spectators. Either party could have asked for an expanded sequestration order that prohibited witnesses from speaking not only to other witnesses, but to spectators in the courtroom as well. This was not done. While the broad tenor of a sequestration order may have been violated, the order the court gave in this case, which applied solely to witnesses, was not violated. The victim’s brother, was outside the scope of the court’s sequestration order and, thus, there was no violation.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       General Statutes § 53a-62 (a) provides in relevant part: “A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .”

       Leonzi testified that he had attempted to meet with the victim a couple of times but that she was unwilling to cooperate. He further testified that the victim and her boyfriend had expressed animosity and used vulgar language toward the police on more than one occasion.

       The court aslced Leonzi if he had wanted to be reassigned from tire investigation because of the animosity expressed by the victim and her boyfriend toward the police. The court also inquired as t.o why he had never returned to the crime scene after his initial investigation. Finally, the court, asked Leonzi if he knew that the victim had a five month old child.

       The court gave the following curative instruction: “My actions during the trial in ruling on motions or objections by counsel or in comments to counsel or in questions to witnesses or in setting forth the law in these instructions are not to be taken by you as any indication of my opinion as to how you should determine the issues of fact.”

       “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       On numerous occasions, the defense counsel objected to the court’s questioning of a witness. Those objections were overruled, and the court repeatedly told the defense counsel to sit down.

       The defendant’s sister testified that she saw the victim’s brother come out of the courtroom and engage in a conversation with the victim, the sequestered witness. The defendant’s sister was, however, unable to hear anything the victim’s brother said except that she heard him say that “the defendant had a smile on his face.” She also testified that she heard the sequestered witness saying that she did not like policemen.

       When defense counsel repeatedly inquired as to whether the victim’s brother had violated the sequestration order, the court stated that “[t]his young man, again for the nth time, is not covered by the sequestration order.”


author: LAVERY, J.

text:
    SUZANNE BAUGHMAN v. PATRICK COLLINS ET AL.
    (AC 18496)
    Lavery, Schaller and Hennessy, Js.
    Submitted on briefs September 29
    officially released November 30, 1999

      Robert G. Golger filed a brief for the appellant (plaintiff).

      M. Jeffry Spahr, for the appellees (defendants).
   Opinion

LAVERY, J.

Suzanne Baughman, the plaintiff in this personal injury action, appeals from the judgment of the trial court rendered after a jury verdict in favor of the defendants, Patrick Collins and the city of Norwalk. On appeal, the plaintiff claims that the trial court improperly admitted into evidence (1) the contents of a police report that contained hearsay statements of nonparty witnesses and (2) the defendants’ requests for admission because the responses were not competent evidence. We reverse the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff commenced an action against the defendants, alleging that she sustained injuries as the result of a motor vehicle collision that occurred on May 16, 1992, when Collins, a Norwalk police officer, drove his police vehicle into her automobile at an intersection. The defendants filed a counterclaim for property damage to the police vehicle. The jury returned verdicts against the plaintiff on her complaint and for the defendants on their counterclaim.

“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 every reasonable presumption in favor of upholding the trial court’s ruling.” (Internal quotation marks omitted.) State v. Orhan, 52 Conn. App. 231, 237, 726 A.2d 629 (1999). “Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [appellant] of substantial prejudice or injustice.” State v. Hernandez, 204 Conn. 377, 390, 528 A.2d 794 (1987).

I

The plaintiff first claims that the trial court abused its discretion by admitting into evidence the police report of the accident because it contained hearsay statements and was prejudicial. We agree.

During trial, the defendants sought to put the police report of the accident into evidence. The plaintiff objected because the report contained the statements of three nonparty witnesses who were bystanders to the accident. The court overruled the plaintiffs objection. The report was prepared by the investigating officer, who had a duty to observe and file the report. The report, however, contained hearsay statements from the three bystanders, who indicated that the police car’s siren and flashing lights were being used, and that the plaintiffs vehicle was operating at a high rate of speed. The individuals were passersby who had no business duty to report what they saw or heard at the scene of the accident. The bystanders were not called to testify, and the plaintiff did not have an opportunity to cross-examine them.

An out-of-court statement that is offered to establish the truth of the matters contained therein is hearsay. See State v. Rinaldi, 220 Conn. 345, 359, 599 A.2d 1 (1991); State v. Rochette, 25 Conn. App. 298, 303, 594 A.2d 1006, cert. denied, 220 Conn. 912, 597 A.2d 337 (1991), cert. denied, 502 U.S. 1045, 112 S. Ct. 905, 116 L. Ed. 2d 806 (1992). The business records exception to the hearsay rule is set forth in General Statutes § 52-180. “[N]ot every statement contained in a document qualifying as a business record is necessarily admissible. To be admissible under § 52-180, the contents of a business record must be based on the entrant’s own observations or on information transmitted to him by an observer whose business duty it was to transmit it to him. Statements obtained from volunteers are not admissible, although included in a business record, because it is the duty to report in a business context that provides the reliability to justify this hearsay exception. Information in a business record obtained from a person with no duty to report is admissible only if it falls within another hearsay exception.” Raino v. Supermarkets General Corp., 28 Conn. App. 56, 60, 609 A.2d 1047, cert. denied, 223 Conn. 924, 614 A.2d 825 (1992).

“ ‘A police report generally is admissible as a business record under General Statutes § 52-180. State v. Sharpe, 195 Conn. 651, 663, 491 A.2d 345 (1985). To qualify under this statute the report must be based entirely upon the police officer’s own observations or upon information provided by an observer with a business duty to transmit such information. Id.; D'Amato v. Johnston, 140 Conn. 54, 59, 97 A.2d 893 (1953). For example, a report prepared by an officer in charge of an accident investigation is admissible in its entirety, despite the fact that it contains information received from other officers assisting in the investigation. Such a report is not admissible, however, if it contains information furnished by a mere bystander. . . . State v. Sharpe, supra, 663-64; State v. Palozie, 165 Conn. 288, 295, 334 A.2d 468 (1973).’ In re Jesus C., 21 Conn. App. 645, 652-53, 575 A.2d 1031, cert. dismissed, 216 Conn. 819, 581 A.2d 1055 (1990); see also Emhart Industries, Inc. v. Amalgamated Local Union 376 UAW, 190 Conn. 371, 385, 461 A.2d 422 (1983).” O’Shea v. Mignone, 35 Conn. App. 828, 832, 647 A.2d 37, cert. denied, 231 Conn. 938, 651 A.2d 263 (1994).

Because the police report contains unredacted hearsay statements made by three bystanders, it was not admissible as a business record. The defendants have not identified any exception to the hearsay rule that would make the hearsay statements admissible. Furthermore, because the hearsay statements concern the use of a siren, flashing lights and the speed of the plaintiffs vehicle, critically important facts in a motor vehicle accident of this nature, the evidence was prejudicial to the plaintiff. The trial court, therefore, abused its discretion by admitting the police report.

II

The plaintiffs second claim is that the trial court abused its discretion by admitting into evidence the defendants’ requests for admission. Because this issue is likely to recur at the new trial, we will address it here.

The following facts are necessary for our resolution of this claim. On the return date, the defendants propounded certain requests for admission to the plaintiff, pursuant to Practice Book § 13-22. The plaintiff never responded to the defendants’ requests, and the defendants sought to have the admissions entered into evidence as judicial admissions. The requests for admission concerned the statements made by the bystander witnesses to the accident. The plaintiff admitted that the statements were contained in the police report, but did not admit that the bystanders saw the accident or the truth of their statements.

“Pursuant to Practice Book § 238 [now § 13-22], a party may seive on any other party a request for admission of the truth of any matter relevant to the disposition of the pending action. Generally, any matter admitted by the party to whom the request is made is conclusively established. Practice Book § 240 [now § 13-24], Admissions obtained may be offered into evidence, but their admissibility is subject to evidentiary principles, including the hearsay rule. See Larson v. Fazzino, 216 Conn. 431, 433 n.4, 582 A.2d 179 (1990); Falcone v. Night Watchman, Inc., 11 Conn. App. 218, 219 n.1, 526 A.2d 550 (1987); 8 C. Miller & A. Wright, Federal Practice and Procedure (1970) § 2264.” Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 227, 645 A.2d 557, cert. denied, 231 Conn. 915, 648 A.2d 154 (1994). Because the statements made by the bystander witnesses are hearsay, the requests for admission are not competent evidence. The court abused its discretion by admitting the requests for admission into evidence.

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

In this opinion the other judges concurred.

       General Statutes § 52-180 (a) provides: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, arid that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter. ”

       The relevant requests for admission are:
      “9. Admit that Ana Sieling and Andrea Calve were both witnesses to the collision.”
      “10. Admit that both witnesses, Sieling and Calve, stated to the investigating officer, Ramos, that they saw and heard the [named defendant’s] vehicle traveling south on Scribner Avenue.”
      “11. Admit that the witness Sieling also stated that the [plaintiffs] vehicle was traveling at a high rate of speed when it entered the intersection of Connecticut and Scribner Avenue.”

       The plaintiff admitted prior to trial that her failure to respond was an admission, but she attempted to amend the effect of her failure to respond. The agreement of the parties and the trial court’s action with regard to amending the response is not relevant to the appeal.


author: DALY, J.

text:
    IN RE ADELINA G. ET AL.

    (AC 19039)
    Hennessy, Vertefeuille and Daly, Js.
    Argued September 30
    officially released November 30, 1999

      David B. Rozwaski, with whom, on the brief, was SaraR. Martin, for the appellant (respondent mother).

      Carmel Alicia Motherway, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       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

DALY, J.

This is an appeal by the respondent mother from the judgments of the trial court terminating her parental rights with respect to her daughter, Adelina, and her son, Luis, pursuant to General Statutes (Rev. to 1997) § 17a-112, as amended by No. 98-241 of the 1998 Public Acts. On appeal, the respondent claims that (1) her due process and equal protection rights have been infringed by the department of children and families’ (department) rescission of its promise of long-term foster care to Adelina and (2) the trial court improperly denied her motion for an in camera interview with Adelina, thereby violating her statutory right of confrontation under General Statutes § 46b-135 (b). We decline to review these claims.

The following facts are relevant to our disposition of this appeal. Adelina was born on March 7, 1984. She was committed to the custody of the commissioner of children and families (commissioner) as an uncared-for child on July 15, 1992. On January 27, 1998, the commissioner filed a petition to terminate the respondent’s parental rights. A trial was held during August, 1998. On October 5,1998, the court granted the petition and terminated the respondent’s parental rights, finding by clear and convincing evidence that Adelina had been adjudicated uncared-for, that the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that she could assume a reasonable position in Adelina’s life within a reasonable time considering her age and needs, and that these grounds had existed for more than one year. This appeal followed.

I

The respondent claims first that her due process and equal protection rights have been infringed by the department’s rescission of its promise of long-term foster care to Adelina. We decline to review this claim.

During oral argument, the respondent did not address this issue, choosing, rather, to raise for the first time during oral argument an issue concerning the dispositional phase of the termination proceedings, arguing that Adelina’s best interest would be served through long-term foster care placement and that it is unnecessary to terminate her parental rights. Specifically, the respondent claimed that the trial court incorrectly decided the dispositional phase of the case because it failed to hear direct testimony from the child regarding her desires and wishes on this matter. Because the issue was raised for the first time during oral argument and, therefore, has not been properly briefed, we decline to consider it. See State v. Wright, 197 Conn. 588, 595, 500 A.2d 547 (1985).

II

The respondent claims next that the trial court improperly denied her motion for an in camera interview with Adelina, thereby violating her statutory right of confrontation under § 46b-135 (b). We decline to review this claim.

The issue as framed in the respondent’s brief states that in refusing to allow Adelina to testify, the trial court has infringed upon the respondent’s due process and equal protection rights. The respondent, however, fails to give any state or federal constitutional analysis on this issue. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Raymond v. Rock Acquisition Ltd. Partnership, 50 Conn. App. 411, 420, 717 A.2d 824 (1998); see also State v. Leary, 51 Conn. App. 497, 499, 725 A.2d 328 (1999); Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 586, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned. . . . Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996).” (Internal quotation marks omitted.) State v. Barnett, 53 Conn. App. 581, 587, 734 A.2d 991, cert. denied, 250 Conn. 918, 738 A.2d 659 (1999).

In her brief, the respondent sets out this claim and the relevant facts. She fails to provide, however, a standard of review. Curiously, the only citation to legal authority made by the respondent is to cases that, in fact, undermine her argument. See In re Lauren R., 49 Conn. App. 763, 780, 715 A.2d 822 (1998); In re Wayne A., 25 Conn. App. 536, 542, 595 A.2d 373 (1991); In re Noel M., 23 Conn. App. 410, 421, 580 A.2d 996 (1990). Accordingly, we decline to review this claim.

The appeal from the judgment terminating parental rights with respect to Luis G. is dismissed; the judgment terminating parental rights with respect to Adelina G. is affirmed.

In this opinion the other judges concurred.

       The respondent father is not a party to this appeal, having voluntarily consented to termination of his parental rights. We refer in this opinion to the respondent mother as the respondent.

       The commissioner of children and families filed petitions to terminate the respondents’ parental rights with respect to two of their three children. The trial court rendered separate judgments as to the two children, and the respondent’s appeal form lists the docket number of each judgment. The respondent has not, however, raised any claims related to the termination of her parental rights as to her son, Luis. We therefore dismiss her appeal as to tha.1 judgment.

       A third child of the respondent remains in the custody of the commissioner. The commissioner did not petition to terminate the respondent’s parental rights as to that child.

       Moreover, counsel for the respondent seemed to abandon the issue discussed in the brief. When asked at oral argument before this court, counsel responded that the only two issues before the court were the in chambers conference issue and the issue concerning the dispositional phase. We will discuss the in chambers conference issue in part II of this opinion.

       General Statutes § 46b-135 (b) provides: “At the commencement of any proceeding on behalf of a neglected, uncared-for or dependent child or youth, the parent or parents or guardian ol' the child or youth shall have the right to counsel, and shall be so informed by the judge, and that if they are unable to afford counsel, counsel will be provided for them, and such counsel and such parent or guardian of the child or youth shall have the rights of confrontation and cross-examination.”


author: FREEDMAN, J.

text:
    SECURITY MUTUAL LIFE INSURANCE COMPANY OF NEW YORK v. KINGS WEST LIMITED PARTNERSHIP ET AL.
    (AC 18899)
    Lavery, Spear and Freedman, Js.
    Argued June 2
    official released December 14, 1999

      Edward T. Krumeich, for the appellant (receiver).

      Bernard Green, with whom, on the brief, was Mami Smith Katz, for the appellee (named defendant).
   Opinion

FREEDMAN, J.

This is an appeal by CB Commercial/ Hampshire, LLC, as receiver of rents for property that was the subject of a mortgage foreclosure action, from the decision of the trial court with respect to the receiver’s final accounting and dismissal. We dismiss the receiver’s appeal.

The following facts are relevant to this appeal. The plaintiff, Security Mutual Life Insurance Company of New York, brought this foreclosure action against the defendant Kings West Limited Partnership (Kings West) and other defendants to foreclose a mortgage on a commercial office building owned by Kings West in South-port. On June 7, 1996, the trial court entered an order, pursuant to a stipulation of the parties, appointing CB Commercial/Hampshire, LLC, as receiver of rents (receiver). The receiver was not a party to the underlying foreclosure action. The receiver, however, has appealed from the trial court’s order disallowing two items in the receiver’s final accounting.

Following oral argument in this case, our Supreme Court decided State v. Salmon, 250 Conn. 147, 152, 735 A.2d 333 (1999), holding that review by way of an appeal pursuant to General Statutes § 52-263 is available only to parties to an underlying action. This court thereafter ordered the parties to file supplemental briefs addressing the effect of Salmon on this appeal. We now conclude that the appeal must be dismissed pursuant to Salmon.

In State v. Salmon, supra, 250 Conn. 147, our Supreme Court considered whether a bail bond company, which was not a party to the underlying criminal action, could appeal pursuant to § 52-263, from the trial court’s order to forfeit its bond. The court concluded that, as a non-party, the bail bond company had no such right to appeal. Id., 162. Following a lengthy discussion regarding the parameters of the “party” requirement of § 52-263, the court in Salmon concluded that the term party is limited to parties to the underlying action. Id. The court next adopted “a bright-line test requiring the appellant, in order to establish a right of appellate review pursuant to § 52-263, to establish in the following sequence that: (1) it was a party to the underlying action; (2) it was aggrieved by the trial court decision; and (3) the appeal is from a final judgment.” Id., 162-63.

Although it was not a plaintiff or a defendant in the foreclosure action, the receiver claims, inter aha, that it has standing to appeal under § 52-263 because it was a party to the accounting procedure that was ancillary to and a part of the underlying foreclosure action. The receiver argues that as an “arm of the court,” it has a duty to account to the court and has standing to be deemed a “party” to the accounting. The receiver further argues that by virtue of this court’s “inherent supervisory authority over the administration of justice,” we may exercise jurisdiction over this appeal. We disagree.

As previously stated, State v. Salmon, supra, 250 Conn. 147, clearly provides that only a party to the underlying action may appeal pursuant to § 52-263. Because the receiver was not a party to the underlying foreclosure action, Salmon requires that the present appeal be dismissed. See also Hartford Federal Savings & Loan Assn. v. Tucker, 13 Conn. App. 239, 251-52, 536 A.2d 962, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988) (committee of sale in foreclosure action, which functions as “arm of the court,” does not have standing to challenge award of fees and expenses that were less than those sought by committee).

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 52-263 provides: “Upon the trial of all matters of fact in any cause or action in the Superior Court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court, or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.”

       The parties were ordered to address whether, in light of State v. Salmon, supra, 250 Conn. 147, “this appeal must be dismissed for lack of jurisdiction because the receiver was not a party to the underlying action.”

       In so holding, our Supreme Court overruled certain earlier precedents “[t]o the extent that those precedents imply that a person or legal entity that is not a party to the underlying action constitutes a parly for purposes of appellate review pursuant to § 52-263 . . . .” State v. Salmon, supra, 250 Conn. 155.

       We note, however, that although the receiver does not have a right to appellate review pursuant to § 52-263, the remedy of a writ of error is not categorically foreclosed for untimeliness. See State v. Salmon, supra, 250 Conn. 167 n.20; see also Kennedy v. QVC Network, Inc., 43 Conn. App. 851, 686 A.2d 997 (1996).

       In Hartford Federal Savings & Loan Assn. v. Tucker, supra, 13 Conn. App. 251 n.8, we stated that “[b]oth the receiver of rents . . . and the committee of sale . . . have filed appearances in connection with this appeal. There is no indication in the record, however, that either was a party in the action. As a result of the lack of status as parties, for the purposes of this appeal, we have treated the briefs of both the receiver of rents and the committee of sale as amicus curiae briefs.”


text:
    STATE OF CONNECTICUT v. MARCUS GREGORY
    (AC 19726)
    Spear, Mihalakos and Daly, Js.

      Argued September 29
    officially released December 14, 1999

      Norman A. Pattis, for the appellant (defendant).

      Kevin Doyle, deputy assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, and Carolyn K. Longstreth, senior assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Marcus Gregory, appeals from the judgments of conviction, rendered after a jury trial, of conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a-92 (a) (2) (B) and 53a-48, kidnapping in the first degree in violation of General Statutes §§ 53a-92 (a) (2) (B) and 53a-8, conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (2) and 53a-48, burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (2) and 53a-8, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-48, aiding robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-8, and larceny in the third degree in violation of General Statutes § 53a-124 (a) (1) as a lesser included offense of larceny in the second degree under General Statutes § 53a-123 (a) (1). The defendant moved to suppress physical evidence that had been seized from his person on January 9 and 10, 1997, arising from his arrest in Bridgeport. This motion was denied by the trial court.

On appeal, the defendant claims (1) that there was not reasonable suspicion to justify a pat-down during an investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and (2) that the defendant’s fifth amendment right against self-incrimination was violated because of the failure by the police to advise him of his Miranda rights. We affirm the judgments of the trial court.

The juiy reasonably could have found the following facts: On the night of January 9, 1997, Regina Rogers returned from her place of employment to her home at Wakelee Avenue in Ansonia. As Regina Rogers entered her garage, she was accosted by the defendant, who forced her into the garage. Francis Rogers heard his wife scream and went to investigate. As he opened the garage door, he was accosted by the defendant, who was holding a pistol. Francis Rogers later identified the defendant as the man who pointed the pistol at his head and ordered him to the ground. The defendant was accompanied by two other men who proceeded to ransack the Rogers’ home.

The defendant and one of the other intruders forced Francis Rogers into his wife’s car and drove him to an automatic teller machine where, at gunpoint, they made him withdraw $600. Upon their return, the defendant and the other men bound both victims and removed several items from their home including a Derby High School class ring and a distinctive cable wire.

While conducting a drunk driving investigation on Route 25 southbound at exit 2 in Bridgeport, Troopers Richard Gregory and Edward Wooldridge of the state police observed a red Subaru station wagon without illuminated headlights. When Wooldridge attempted to stop the car, the operator sped up and made several turns. Subsequently, the operator of the vehicle jumped out of the vehicle. At that point Wooldridge briefly observed the operator of the vehicle, whom he described as a black male with short hair wearing a dark jacket, jeans and dark sneakers. Officer Orlando Lanzante of the Bridgeport police department, along with Gregory and Wooldridge, spotted the defendant hiding behind a couch in an alley. This alley was known by the police to be located in a high crime area. Lanzante and Wooldridge drew their weapons and ordered the defendant to the ground. The defendant did not comply but protested his innocence and claimed harassment. After the defendant refused a second order to get on the ground, Gregory forced him to the ground and handcuffed him. The defendant was brought out of the alley and patted down for weapons by Wooldridge after the defendant failed to produce identification. When asked what he was doing in the area, the defendant replied that he had been smoking marijuana. Upon initially patting the man down, Wooldridge discovered a plastic package of marijuana in the defendant’s front shirt pocket. Wooldridge then placed the defendant under arrest for possession of marijuana and conducted a full search incident to arrest. Subsequent to the arrest, the defendant was again searched and was found to be in possession of a class ring, a beeper, a cable wire and cash.

The red Subaru station wagon was later searched and found to contain several household items, all of which were later determined to have been removed from the victims’ home. At about 2:20 a.m., Officer Robert Novia of the Bridgeport police department and a police dog tracked the route that the driver of the Subaru had taken to determine if the defendant had been in the vehicle. The dog was able to pick up a scent in the car and tracked the scent to the spot in the alleyway where the defendant was apprehended. The defendant was identified as the assailant by both victims.

I

The defendant’s first claim is that there was no articulable suspicion to justify a pat-down search for weapons during the investigatory stop. We disagree.

When reviewing the denial of a motion to suppress, this court will not disturb the trial court’s ruling if the factual findings are not clearly erroneous and the trial court’s conclusions are legally and logically consistent with the facts. See State v. Wilkins, 240 Conn. 489, 496, 692 A.2d 1233 (1997). This court conducts a “careful examination” of the validity of a Terry search for weapons because the validity of the stop implicates the defendant’s constitutional rights. Terry v. Ohio, supra, 392 U.S. 27. During a Terry detention, the police may conduct a pat-down search to locate weapons if they reasonably believe that the suspect may be armed and dangerous. See id., 24. According to Terry v. Ohio, supra, 20-27, where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that individual for a crime or the absolute certainty that the individual is armed. Once a reasonable and articulable suspicion exists, an officer may detain a suspect to conduct an investigative stop to confirm or dispel such suspicions. Suspicious conduct during a Terry stop, including flight at the approach of officers and a refusal to comply with officers’ instructions, are other integral factors that will justify a pat-down for weapons. Our courts apply a test that weighs the totality of the circumstances. See id., 21-22.

An officer may conduct a pat-down frisk for weapons if the officer possesses a reasonable suspicion that the person possesses a weapon. See Ybarra v. Illinois, 444 U.S. 85, 93, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979). To determine whether an investigatory detention and pat-down are permissible a two part inquiry is utilized: (1) was the officer justified in initially detaining the individual based on specific and articulable facts; and (2) did specific and articulable facts exist that suggested that the individual presented a harm to the officers or others so as to justify the pat-down. See State v. Wilkins, supra, 240 Conn. 489; see also United States v. Holzman, 871 F.2d 1496 (9th Cir. 1989). The wanton and reckless conduct by the defendant to avoid detection by the police suggests a strong consciousness of guilt. See United States v. Brown, 159 F.3d 147, 149-50 (3d Cir. 1998), cert. denied, 525 U.S. 1184, 119 S. Ct. 1127, 143 L. Ed. 2d 120 (1999). The trial court found that the Terry stop was justified and the length and intrusiveness of the stop were lawful pursuant to Terry The defendant’s presence in a high crime area, his attempt to conceal himself from the police officers and his refusal to follow the officers’ directions heightened the officers’ fear for their safety and adequately supported the decision to perform the pat-down search. The trial court weighed all of the surrounding circumstances, including the defendant’s conduct, the nature of the investigation and the time and area of the stop in determining that the officers had reasonable suspicion to conclude that the defendant might have been armed and dangerous. Further, the defendant was uncooperative, and the surrounding circumstances increased the officers’ suspicions and allowed them to detain the suspect and to conduct the pat-down in accordance with the law.

II

The second claim is that the defendant’s fifth amendment right against self-incrimination was violated when an officer asked him why he was hiding in the alley without reading him his Miranda rights. The defendant concedes that the officers could lawfully detain and question him, but argues that because the officers restricted his movement by handcuffing him, any questions that were posed to him constituted a custodial interrogation thus requiring that the defendant be given Miranda warnings. We disagree with the defendant’s contention and affirm the trial corut’s ruling.

Miranda warnings must be given once a person is placed in custody and before questioning begins. The trial court ruled that the single inquiry by the officers as to why the defendant was hiding did not constitute an interrogation that would require a Miranda warning. As a general rule, Miranda rights are not required to be given before asking a Terry detainee to explain his presence in the area. See Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). During the course of a Terry stop, the police may request identification or inquire about a suspect’s activities without advising the suspect of his Miranda rights. See State v. Torres, 197 Conn. 620, 628, 500 A.2d 1299 (1985). In this case, the officers’ single question was not restrictive enough to constitute an interrogation so as to require a Miranda warning.

The judgments are affirmed.

In this opinion the other judges concurred.

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

       “Our constitutional preference for warrants is overcome only in specific and limited circumstances.” State v. Miller, 227 Conn. 363, 383, 630 A.2d 1315 (1993); see State v. Delossantos, 211 Conn. 258, 266-67, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989) (recognizing exception for search incident to arrest as matter of state constitutional law). State v. DaEria, 51 Conn. App. 149, 165, 721 A.2d 539 (1998), recognized the rule that “[a] lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant . . . whether or not there is probable cause to search.” (Internal quotation marks omitted.)

       See State v. Groomes, 232 Conn. 455, 467-68, 656 A.2d 646 (1995) (under state and federal constitutions, police may detain individual for investigative purposes if there is reasonable and articulable suspicion that individual is engaged or about to engage in criminal activity); State v. Torres, 230 Conn. 372, 379, 645 A.2d 529 (1994) (reasonable and articulable suspicion is objective standard that focuses not on actual state of mind of police officer but on whether reasonable person, having information available to and known by police, would have that level of suspicion); State v. Cofield, 220 Conn. 38, 45, 595 A.2d 1349 (1991) (officer’s decision must be based on more than hunch or speculation).

       See Terry v. Ohio, supra, 392 U.S. 21.

       See United States v. Sanders, 994 F.2d 200, 207-208 (5th Cir.), cert. denied, 510 U.S. 955, 114 S. Ct. 408, 126 L. Ed. 2d 355, cert. denied, 510 U.S. 1014, 114 S. Ct. 608, 126 L. Ed. 2d 572 (1993) (suspect's nonconiplianee with order to get to ground justified handcuffing and frisk for weapons); State v. Wilkins, supra, 240 Conn. 496 (defendant’s failure to keep hands in sight after twice being requested to do so by officer supported frisk for weapons).

       See Miranda v. Arizona, supra, 384 U.S. 467-68.

       See State v. Dixon, 25 Conn. App. 3, 9, 592 A.2d 406 (1991) (after defendant’s arrest, officer’s question, “ ‘[w]hat are you doing here?’ ” found not to be interrogation).