author: ESPINOSA, J.

text:
    STATE OF CONNECTICUT v. ROBERT TOZIER, JR.
    (AC 33210)
    Beach, Alvord and Espinosa, Js.

      Argued March 16
    officially released July 10, 2012

      Gerald M. Beaudoin, with whom, on the brief, was Francisco A. Cardona, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Dennis O’Connor, former senior assistant state’s attorney, for the appellee (state).
   Opinion

ESPINOSA, J.

The defendant, Robert Tozier, Jr., appeals from the judgment of conviction, rendered following a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (4). The defendant claims that (1) the evidence did not support the jury’s finding of guilt; (2) the court’s jury charge did not require the state to prove each and every element of the crimes of which he was convicted and, thus, deprived him of his due process right to a fair trial; (3) General Statutes §§ 53a-70 (a) (4) and 53a-65 (5) are unconstitutionally vague, both facially and as applied to him and (4) the court, following an in camera review of the victim’s counseling records, improperly failed to disclose such records and denied his motions for a new trial and for a mistrial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. After 9 p.m. on the evening of November 24, 2008, the female victim visited a friend, A, at the home of A’s friend, B, and B’s boyfriend, the defendant. For approximately the next one to one and one-half horns, the victim spent time talking with A in the defendant’s presence in the living room. At times relevant, A’s daughter, B and B’s daughter were upstairs asleep. The victim drank one half of a can of beer as well as a shot of rum, neither of which caused her any adverse physical or mental effects. At some point after 10:30 p.m., the defendant prepared beverages for the victim and A that they had not solicited. The defendant gave the victim a glass she believed to contain rum and Coke. The victim consumed only one half of the beverage and perceived that it had an unusual, or “funny,” taste. The defendant gave A a clear beverage she believed to contain Sprite and vodka. A consumed a small amount of the beverage and noticed that it had small black particles in it and had an unusual taste.

In a short time, the victim and A experienced adverse physical effects. A experienced a deterioration in her motor skills and felt very tired. A went upstairs and fell asleep. The victim suddenly felt very intoxicated and tired, and she lost track of events. At one point, she woke up on the sofa in the living room and vomited in the living room and a bathroom. The defendant cleaned up the victim’s vomit and told her that he would not tell anyone that she had been sick. The defendant gave the victim another red colored beverage that had an unpleasant taste. He told her that it would improve her condition. After consuming some of the beverage, the victim lost track of events for an additional period of time.

The victim spent the night on the sofa in the living room. During the night, the defendant partially removed the victim’s pants and inserted a plastic sex toy into the victim’s vagina, causing her a great deal of pain. Thereafter, the defendant performed cunnilingus on the victim before inserting the plastic sex toy into her vagina once again. During these events, the victim experienced a sensation of paralysis that left her unable to move or to call for help. After the victim fell asleep for a brief period of time, she awoke to find that the defendant had removed one leg of her pants and, with his penis beneath her legs, moved as though he was engaging in sexual intercourse with her. The defendant said to the victim, “You know you like it” and “you know you like this, bitch.” Due to the sensation of paralysis that she experienced, the victim was unable to move. Then, the defendant clothed the victim and told her that what had occurred that night would be their secret and that he would not tell anyone about it.

The victim remained unable to move or to speak; she was aware of what was occurring around her but felt numb and as though she was in a coma. She fell asleep and awoke the next morning having regained the ability to move and to speak, but she was either unsure or could not immediately recall the events that had occurred during the overnight hours involving the defendant. The victim returned home. She felt physical discomfort in her private parts as a result of the defendant’s sexual activities. Gradually, she recalled with greater clarity the events that had occurred. Over the next few days, she spoke with A and B about these events and ultimately reported the incident to the police. A medical examination performed three days following the incident revealed bleeding from the victim’s cervical opening. Additional facts will be set forth as necessary.

I

First, the defendant claims that the evidence did not support the jury’s finding of guilt. We disagree.

After the state concluded its case-in-chief, the defendant moved for a judgment of acquittal. The defendant’s attorney argued that § 53a-65 (6), which defines “mentally incapacitated” as that term is used in § 53a-70 (a) (4), plainly required the state to identify the substance that the defendant allegedly administered to the victim. The court denied the motion. The defendant’s attorney renewed the motion following the defendant’s case-in-chief. Again, the court denied the motion. Following the defendant’s conviction, he filed a written motion for judgment of acquittal in which he argued that the state failed “to prove precisely what drug or substance the [victim] was given.” He argued that the jury based its finding of guilt solely on the “uncorroborated word of the [victim]” and speculative expert testimony that certain drugs that were difficult for a layperson to obtain could have resulted in the symptoms allegedly experienced by the victim. Once more, the court denied the motion.

On appeal, the defendant does not dispute that there was evidence demonstrating that he had sexual intercourse with the victim. Reiterating arguments similar to those that he raised at trial, the defendant argues that, although there was evidence that the victim consumed beverages that the defendant provided to her, there was no evidence of what was contained in those beverages. The defendant observes, accurately, that there was no scientific evidence of what substances were in the victim’s body during the events in question. Blood and urine samples performed on the victim days after the incident did not reveal the presence of any suspicious substances. The state presented expert testimony from Robert Powers, the director of the controlled substances and toxicology laboratory at the state department of public safety. Powers opined to a reasonable degree of scientific probability that the progression of symptoms described by the victim was consistent with the ingestion of several types of drugs such as gamma hydroxybutyrate (GHB) and ketamine, but that it was highly unlikely that these substances would be detectable days following their ingestion. The defendant emphasizes that Powers did not testify that the victim’s symptoms were in fact brought about by her ingestion of any specific drug or intoxicating substance. Furthermore, for the first time on appeal, the defendant argues that the state did not present evidence that the victim had been rendered temporarily incapable of appraising or controlling her conduct. In this vein, the defendant emphasizes the evidence that during the events in question, the victim willingly ingested beverages that had an unusual taste and that caused her to feel intoxicated and tired.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the fight most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating the evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a [trier’s] factual inferences that support a guilty verdict need only be reasonable. . . .

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . .

“[An] appellate court’s first task, in responding to a claim of evidentiary insufficiency, is to apply the traditional scope of review to the evidence. That requires that . . . we view all of the evidence, and the reasonable inferences drawable therefrom, in favor of the [trier’s] verdict.” (Citations omitted; internal quotation marks omitted.) State v. Butler, 296 Conn. 62, 76-77, 993 A.2d 970 (2010).

Section 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (4) engages in sexual intercourse with another person and such other person is mentally incapacitated to the extent that such other person is unable to consent to such sexual intercourse.” Section 53a-65 (5) provides: “ ‘Mentally incapacitated’ means that a person is rendered temporarily incapable of appraising or controlling such person’s conduct owing to the influence of a drug or intoxicating substance administered to such person without such person’s consent, or owing to any other act committed upon such person without such person’s consent.”

As a preliminary matter, we reject the defendant’s novel contention that the state bore the burden of demonstrating that any specific or identifiable drug or intoxicating substance had been administered to the victim without her consent. There is no reasonable basis for this interpretation of the offense, nor does it find support in our case law. Rather, with regard to the contested element of the offense and consistent with the state’s theory of criminal liability, the state bore the burden of proving beyond a reasonable doubt that the victim was under the influence of some drug or intoxicating substance.

There was ample circumstantial evidence that the beverages provided to the victim by the defendant contained some drug or intoxicating substance. Specifically, there was testimonial evidence that beverages provided to the victim and A, in contrast to the other beverages they had consumed that night, adversely affected their physical state. It is not insignificant that the victim and A experienced a somewhat simultaneous deterioration in their physical state after having consumed the beverages, as A’s similar deterioration in her overall abilities corroborates the evidence that the victim was provided a drug or intoxicating substance. Also, A observed small black particles in her clear beverage. From this evidence, the jury reasonably could infer that the defendant, who prepared and served the beverages at issue, added a drug or intoxicating substance to them. Likewise, the testimony concerning the defendant’s reaction to the victim’s physical condition, especially his sexual conduct toward the victim, tended to demonstrate that the victim had ingested a drug or intoxicating substance provided to her by the defendant. The defendant gave the victim beverages that she did not request, had sexual intercourse with the victim while she was unable to speak or to move and, later, replaced the victim’s clothing and told her that their activities were a secret. These events strongly suggest that the defendant had a plan and a motive to render the victim mentally incapacitated for the purpose of sexually assaulting her and, thus, corroborate a finding that she had been given a drug or intoxicating substance by the defendant.

Additionally, Powers testified to a reasonable degree of scientific probability that the victim’s symptoms were consistent with the ingestion of two types of drugs, GHB and ketamine, and were not consistent with the victim’s ingestion of her antidepressant medicine and the three alcoholic drinks the victim consumed on the night in question. Powers opined that it was unlikely that an analysis of the victim’s blood and urine, conducted days following the events at issue, would have revealed the presence of the illicit substances at issue. This testimony provided a basis on which the jury reasonably could have found that the blood and urine analysis of the victim did not necessarily weigh in the defendant’s favor.

The defendant’s argument that the evidence did not support a finding that the victim had been rendered temporarily incapable of appraising or controlling her conduct lacks merit. The state’s evidence included unambiguous testimony from the victim that she consumed some of the beverages at issue, she lost consciousness, lost track of time, felt numb, felt like she was in a coma, experienced a sense of paralysis and was physically unable to call for help or to move while the defendant sexually assaulted her. The victim testified that the defendant moved her body back and forth to facilitate dressing her, and that she experienced a loss of memory of relevant events until hours after she returned home. The victim’s testimony amply demonstrated that she was rendered temporarily incapable of appraising or controlling her conduct. It is of no consequence to our analysis that the victim testified that she willingly drank the beverages provided to her by the defendant when, as the jury reasonably could have found, she was wholly unaware that they contained a drug or intoxicating substance. The fact that the victim was able to consume a beverage of her own volition does not make it less likely that a substance in the beverage later rendered her temporarily unable to control her conduct. Accordingly, we reject the defendant’s sufficiency of the evidence claim.

II

Next, the defendant claims that the corut’s jury charge did not require the state to prove each and every element of the crimes of which he was convicted and, thus, deprived him of his due process right to a fair trial. We disagree.

The defendant’s claim of instructional error concerning § 53a-70 (a) (4) is multifaceted. The defendant claims that the court’s instruction was deficient in that it failed to instruct the jury that the state had the burden of proving beyond a reasonable doubt “that the [victim] was administered a drug or intoxicating substance” and that the victim had “[a] lack of knowledge that she was administered a drug or intoxicating substance . . . .” (Emphasis in original.) Additionally, the defendant argues that “a finding of fact should have been required as to which drug(s) or substance(s) were administered to the [victim].” (Emphasis in original.) In this regard, the defendant argues: “In order for a jury to make a finding that a drug or intoxicating substance had been administered to the [victim], proof and a finding of fact as to the identity of such drug or substance would necessarily be required. To make such a finding, the jury would have to know that whatever may have been administered to the [victim] was, in fact, a drug or intoxicating substance.” (Emphasis in original.) Thereafter, in a similar, conclusory manner, the defendant asserts that the court “oversimplified the law” by reducing the state’s burden to two components: (1) proof beyond a reasonable doubt that the defendant engaged in sexual intercourse with the victim and (2) proof beyond a reasonable doubt that, at the time of the sexual intercourse, the victim was mentally incapacitated and unable to consent to the intercourse.

The defendant did not preserve this claim for appellate review as he did not submit a written request to charge covering the elements of § 53a-70 (a) (4) or object to the court’s charge after it was given and distinctly raise these arguments before the trial court. See Practice Book § 42-16. The defendant urges us to conclude that the court committed plain error. The state argues that the claim is not reviewable because the defendant abandoned the claim by virtue of inadequate analysis of the claim. Alternatively, the state asserts that, in accordance with our Supreme Court’s holding in State v. Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011), the defendant is not entitled to relief because he waived any objection to the court’s instruction.

As a preliminary matter, we observe that the defendant’s analysis of this claim is lacking. Although the defendant makes several assertions concerning the essential elements of § 53a-70 (a) (4), he does not support these assertions by means of statutory analysis or citation to relevant authority. The defendant concludes his analysis of the claim by stating that this court should determine that the trial court committed plain error. Beyond a citation to Practice Book § 60-5, the authorities cited in the analysis of the claim do not pertain to plain error review, but to review of constitutional challenges to trial court jury instructions. We are not required to review issues that have been inadequately presented to this court. “It is well established that analysis, rather than abstract assertion, of claims is a prerequisite to appellate review.” State v. Jones, 99 Conn. App. 196, 202, 912 A.2d 1099, cert. denied, 281 Conn. 927, 918 A.2d 279 (2007).

Alternatively, even if we were to overlook the deficiencies in the presentation of this claim, we would not conclude that plain error exists. The record reveals that the court provided a written copy of its proposed charge to the parties on August 6, 2010. On August 10, 2010, the court held a charge conference with the parties and solicited “comments or requests” from the parties concerning the charge. The defendant’s attorney raised an issue concerning the charge and raised questions concerning jury interrogatories, but did not challenge the court’s instruction on § 53a-70 (a) (4). Also on that same date, the court delivered a portion of its charge that included the challenged instructions. On August 11,2010, before concluding its charge, the court, outside the presence of the jury, asked counsel if there were “[a]ny preliminary issues” to address. The defendant’s attorney replied, “No, Your Honor.” After the court concluded its charge, it asked the parties if there were any exceptions, suggested corrections or suggested additions to its charge. The prosecutor stated that there were none, to which the defendant’s attorney stated, “Agreed.”

It is well established in our case law that a valid waiver of a claim of instructional error thwarts plain error review. See State v. Kitchens, supra, 299 Conn. 474 n.18. In Kitchens, our Supreme Court recognized that “Connecticut courts have deemed a claim of instructional error implicitly waived when the defense failed to take exception to, and acquiesced in, the jury instructions following one or more opportunities to review them.” Id., 480. We conclude that this case fits into this category of implicit waiver. There is no dispute that, days before the court delivered its charge, the court afforded the defendant a meaningful opportunity to review the instructions of which he now complains. On the basis of our close examination of the facts of this case, we conclude that the representations of the defendant’s attorney reflected acquiescence in those instructions. Rather than merely not taking an exception to the instructions, the defendant’s attorney, when asked to bring any concerns about the charge to the court’s attention, affirmatively represented that he did not have any relevant concerns. Because the defendant affirmatively accepted the instructions at trial, we cannot conclude that plain error exists.

Ill

Next, the defendant claims that §§ 53a-70 (a) (4) and 53a-65 (5) are unconstitutionally vague, both facially and as applied to him. We disagree.

The defendant appears to claim that §§ 53a-70 (a) (4) and 53a-65 (5) are vague in that they did not adequately lead him to comprehend that his conduct was prohibited. He asserts that these statutes “do not require any proof as to who administered the drug or intoxicating substance to the [victim], nor do they even require that the defendant knew, or had reason to know, that the [victim] was mentally incapacitated.” (Emphasis in original.) The defendant argues that, insofar as criminal liability may be imposed after a third party administered a drug or intoxicating substance to a victim, the statutes do not require that a person charged with the offense be aware of that fact at the time that he or she engaged in sexual intercourse with such victim.

The defendant acknowledges that this claim is unpre-served and seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The claim is reviewable under Golding because the record is adequate for review and the claim is of constitutional magnitude. See State v. Stewart, 77 Conn. App. 393, 403, 823 A.2d 392 (“a claim that a statute is unconstitutionally vague implicates a defendant’s fundamental due process right to fair warning”), cert. denied, 265 Conn. 906, 831 A.2d 253 (2003). The defendant is unable, however, to satisfy Golding's third prong because he is unable to demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial.

“The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. . . . For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue. ... A defendant whose conduct clearly comes within a statute’s unmistakable core of prohibited conduct may not raise a facial vagueness challenge to the statute. . . .

“The defendant must demonstrate beyond a reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement. . . . The proper test for determining [whether] a statute is vague as applied is whether a reasonable person would have anticipated that the statute would apply to his or her particular conduct. . . . The test is objectively applied to the actor’s conduct and judged by a reasonable person’s reading of the statute .... [0]ur fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant’s acts were prohibited . . . .” (Internal quotation marks omitted.) State v. Nasheed, 121 Conn. App. 672, 685, 997 A.2d 623, cert. denied, 298 Conn. 902, 3 A.3d 73 (2010). “A determination of statutory vagueness is a question of law over which we exercise de novo review. ... In undertaking such review, we make every reasonable presumption in favor of the statute’s validity.” (Citation omitted.) State v. LaFontaine, 128 Conn. App. 546, 550, 16 A.3d 1281 (2011).

A careful review of the defendant’s arguments reveals that he does not argue that §§ 53a-70 (a) (4) and 53a-65 (5), when read together, did not clearly prohibit a person from having sexual intercourse with a mentally incapacitated victim who was unable to consent to such intercourse. Essentially, the defendant argues that these statutory enactments are vague because they do not require a showing that the criminal actor administered the drug or intoxicating substance that caused a victim’s mental incapacity and do not require a showing that the criminal actor knew, or had reason to know, that a victim was mentally incapacitated at the time that he or she engaged in sexual intercourse with the victim. That the statutes do not encompass such proof does not reflect any ambiguity in either §§ 53a-70 (a) (4) or 53a-65 (5). Rather, it reflects that criminal liability does not require a showing that the criminal actor administered the drug or intoxicating substance at issue or that the criminal actor knew, or had reason to know, that a victim was mentally incapacitated.

To the extent that the defendant claims that the definition of the offense is vague because it leaves open the possibility that a criminal actor did not administer the drug or intoxicating substance, was unaware that a third party had administered such drug or intoxicating substance or was unaware that the victim was mentally incapacitated at the time that he or she engaged in sexual intercourse with the victim, we observe that none of these concerns arise in the present case. The state tried the case on the theory that, unbeknownst to the victim, the defendant administered a drug or intoxicating substance to her for the purpose of causing her mental incapacity. Then, having rendered her unable to consent, the defendant engaged in sexnal intercourse with her. On this record, there can be no dispute that the jury’s finding of guilt was premised on a finding that the defendant engaged in conduct that plainly was prohibited by the statutes at issue. The defendant has not demonstrated beyond a reasonable doubt that the statutes, as applied to him, deprived him of adequate notice that his conduct was unlawful or that a reasonable person of ordinary intelligence would have any doubt that his conduct toward the victim was prohibited. Accordingly, the defendant’s vagueness challenge fails.

IV

Finally, the defendant claims that the court, following an in camera review of the victim’s counseling records, improperly failed to disclose such records and denied his motions for a new trial and for a mistrial. We disagree.

The record reflects that, on July 12, 2010, prior to the start of the trial, the defendant, relying on State v. Bruno, 197 Conn. 326, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986), and State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984), filed a motion requesting an in camera review of the psychiatric and mental health records of the victim. The defendant did not pursue the motion after it was filed. On October 13, 2010, following the jury’s verdict, the defendant filed a motion for a mistrial and a motion for a new trial. In both of these motions, the defendant represented that he had not pursued the motion requesting an in camera review of the psychiatric and mental health records of the victim because the state had represented that the victim “was not and had not been engaged in treatment or counseling” for mental illness. The defendant represented, however, that the presentence investigation report provided to counsel on October 12, 2010, indicated that the victim had, in fact, sought counseling and therapy. The defendant argued in the motions that he detrimentally had relied on the state’s inaccurate representation. In the motion for a new trial, the defendant explicitly asserted that his reliance deprived him of his right to confront his accuser.

The court heard argument on the motions. The prosecutor represented on the basis of his inquiry into the matter that the reference to counseling in the presen-tence investigation report pertained to the victim’s interactions with a counselor associated with a victim support group. The interactions occurred after the events at issue at trial and consisted of two face-to-face meetings between the victim and the counselor, as well as two telephone conversations. The prosecutor represented that, to his knowledge, the counselor received some level of training but was not a professional in psychiatry and, in fact, did not hold a college degree.

The prosecutor informed the court that, although he did not believe that the materials related to this type of counseling fell under the ambit of Bruno and Espos-ito, he obtained the victim’s permission to submit to the court for in camera review the records related to the counseling. Further, he obtained the victim’s permission for the court to divulge to counsel any information from those records in the event that it deemed such information to be relevant to the defendant’s pending motions. After hearing those representations, the court stated that it carefully would review the victim’s trial testimony and review the records at issue in accordance with the dictates of Bruno and Esposito. The court stated that it would disclose any relevant information and, otherwise, seal the records. The defendant’s attorney agreed with the court’s procedure for reviewing the records.

At a later proceeding, the court stated: “There was a motion made by the defendant which required some investigation; some documents were produced pursuant to a waiver by the [victim] in the case. I examined the [documents] also with the [victim’s] permission pursuant to a waiver, and I presided over the case, and there is nothing exculpatory in the documents, they’re very brief. I don’t want to describe them in detail; I’ll order them sealed and made part of the record for purposes of appellate review. There is nothing exculpatory. There is nothing that could be used to impeach the credibility of the defendant on cross-examination. So the motion for mistrial is denied.”

On appeal, the defendant, referring to the precise language of the court’s ruling as quoted in the preceding paragraph, argues that the court improperly reviewed the records to determine if they included material that could have been used to impeach his credibility, rather than that of the victim. The defendant argues that the court abused its discretion by failing to disclose the records and asks this court to review the records for the purpose of determining whether the court’s ruling reflected an abuse of discretion.

“Connecticut has a broad psychiatrist-patient privilege that protects the confidential communications or records of a patient seeking diagnosis and treatment. . . . Our Supreme Court has held that records and communications between a sexual assault victim and a sexual assault counselor are similarly protected and subject to the Esposito-Bruno procedure before such information may be disclosed to the defendant. . . .

“The victim’s right to privacy in such cases, however, often directly conflicts with the defendant’s right to confront the state’s witnesses. The right to confrontation is fundamental to a fair trial under both the federal and state constitutions. ... It is expressly protected by the sixth and fourteenth amendments to the United States constitution . . . and by article first, § 8, of the Connecticut constitution. . . . The defendant is guaranteed more than an opportunity to confront witnesses physically. . . . The right to confrontation secures to the defendant the opportunity to cross-examine witnesses against him . . . and to expose to the jury the facts from which the jurors . . . could appropriately draw inferences relating to the reliability of the witnesses.” (Internal quotation marks omitted.) State v. DeJesus, 91 Conn. App. 47, 73-74, 880 A.2d 910 (2005), rev’d in part on other grounds, 288 Conn. 418, 953 A.2d 45 (2008).

In Esposito, our Supreme Court struck a balance between the confidentiality of psychiatric records and the defendant’s right to confrontation, concluding: “If . . . the claimed impeaching information is privileged there must be a showing that there is reasonable ground to believe that the failure to produce the information is likely to impair the defendant’s right of confrontation such that the witness’ direct testimony should be stricken. Upon such a showing the court may then afford the state an opportunity to secure the consent of the witness for the court to conduct an in camera inspection of the claimed information and, if necessary, to turn over to the defendant any relevant material for the purposes of cross-examination. If the defendant does make such showing and such consent is not forthcoming then the court may be obliged to strike the testimony of the witness. If the consent is limited to an in camera inspection and such inspection, in the opinion of the trial judge, does not disclose relevant material then the resealed record is to be made available for inspection on appellate review. If the in camera inspection does reveal relevant material then the witness should be given an opportunity to decide whether to consent to release of such material to the defendant or to face having her testimony stricken in the event of refusal.” State v. Esposito, supra, 192 Conn. 179-80; see also State v. Bruno, supra, 197 Conn. 329-30.

“On review, we must determine whether the court’s decision constituted an abuse of discretion. . . . This court has the responsibility to conduct its own in camera review of the sealed records to determine whether the trial court abused its discretion in refusing to release those records to the defendant. . . . While we are mindful that the defendant’s task to lay a foundation as to the likely relevance of records to which he is not privy is not an easy one, we are also mindful of the witness’ legitimate interest in maintaining, to the extent possible, the privacy of her confidential records. . . . The linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth ... so as to justify breach of their confidentiality .... Whether and to what extent access to the records should be granted to protect the defendant’s right of confrontation must be determined on a case by case basis.” (Citations omitted; internal quotation marks omitted.) State v. Delgado, 64 Conn. App. 312, 319, 780 A.2d 180 (2001), aff'd, 261 Conn. 708, 805 A.2d 705 (2002).

As a preliminary matter, we address the court’s statement that it had reviewed the materials and had concluded that they did not contain information that would have been useful to impeach the credibility of the defendant on cross-examination. Viewed in light of the defendant’s motions, the court’s earlier colloquy with the parties concerning the materials and the court’s explicit statement that it was going to review the materials in accordance with Esposito and Bruno, we are left to conclude that the court merely misstated its conclusion. It appears that the court meant to indicate that the materials did not contain exculpatory information and did not contain information that would have been useful to impeach the credibility of the victim on cross-examination.

We carefully have reviewed the victim’s trial testimony and the sealed materials presented to the trial court. We have reviewed the materials for the purpose of determining whether they sufficiently disclose information that would have been useful to the defense and, especially, probative of the victim’s reliability. Because we conclude that they do not contain such information, we conclude that the court’s decision not to disclose the records did not reflect an abuse of discretion. Likewise, we conclude that, insofar as the defendant’s motions for a mistrial and for a new trial were based on the probative value of undisclosed materials, the court properly denied the motions.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was found guilty under counts one and three of the state’s four count substitute information. The court imposed a sentence of seven years of incarceration followed by ten years of special parole with other conditions. Each count encompassed two theories of culpability. Count one charged the defendant with sexual assault in the first degree in that he engaged in vaginal intercourse, involving the use of an object, with the victim by the use of force in violation of § 53a-70 (a) (1), and while the victim was mentally incapacitated in violation of § 53a-70 (a) (4). Count three charged the defendant with sexual assault in the first degree in that he engaged in cunnilingus with the victim by the use of force in violation of § 53a-70 (a) (1), and while the victim was mentally incapacitated in ■violation of § 53a-70 (a) (4). On these counts, the jury found the defendant not guilty of committing the offenses by means of the use of force.
      Additionally, the jury found the defendant not guilty of sexual assault in the first degree by engaging in anal intercourse with the victim, with the use of an object, in violation of § 53a-70 (a) (1) and (4), as alleged in count two. Finally, the jury found the defendant not guilty of attempt to commit sexual assault in the first degree by attempting with the use of force to compel the victim to submit to attempted anal intercourse with the use of an instrument in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1), and by attempting to perform anal intercourse on the mentally incapacitated victim by the use of an instrument in violation of §§ 53a-49 (a) (2) and 53a-70 (a) (4).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       On appeal, the defendant couches this claim in terms of the trial court’s failure to grant his motion for a judgment of acquittal. The problem with couching the claim in this manner, however, is that, on appeal, the defendant’s evidentiary insufficiency arguments are broader than those that he raised in his motion for a judgment of acquittal. Although the newly raised arguments are unpreserved, we observe that they are renewable on appeal absent recourse to any extraordinary level of review because “any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right” and would be entitled to extraordinary review. State v. Adams, 225 Conn. 270, 276 n.3, 623 A.2d 42 (1993). Thus, regardless of whether the arguments raised on appeal were raised at trial, we will address all of the defendant’s arguments concerning evidentiary insufficiency.

       The defendant testified at trial that he and the victim engaged in consensual sexual intercourse during the events in question.

       Additionally, there was evidence that the victim was under the influence of cold medication at or around the time of the events in question. There was no evidence that it caused her incapacity.

       “The plain error doctrine is a rule of reversibility reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . [Thus, an appellant] cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Citation omitted; internal quotation marks omitted.) State v. Roger B., 297 Conn. 607, 618, 999 A.2d 752 (2010).

       In so doing, the defendant draws our attention to analogous statutory enactments in other jurisdictions in which such a showing is an essential element of criminal liability.

       Consistent with the fact that knowledge of a victim’s mental incapacity is not an essential element of the crime, we note that our legislature enacted General Statutes § 53a-67 (a), which provides in relevant part: “In any prosecution for an offense under this part based on the victim’s being . . . mentally incapacitated ... it shall be an affirmative defense that the actor, at the time such actor engaged in the conduct constituting the offense, did not know of such condition of the victim.” Plainly, if the legislature intended that an actor’s knowledge of a victim’s mental incapacity was an essential element of the crime, this affirmative defense would be superfluous because, without a showing that an actor had such knowledge, proof of such essential element would be lacking and criminal liability could not be imposed on the actor.

       Additionally, he argued that the records could have contained “exculpatory impeachment material” and, thus, their nondisclosure by the state violated his due process right to a fair trial under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny. The court did not independently address the Brady claim, and there is no claim under Brady in this appeal.

       The defendant also asserts, without further explanation, that the court “applied an incorrect standard of review during its in camera inspection of the [victim’s] counseling records.” It is unclear if this argument is distinct from the other arguments raised by the defendant.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE ENRICO S.

    (AC 34094)
    DiPentima, C. X, and Sheldon and Dupont, Js.

      Argued May 31
    officially released June 28, 2012

      Venda B., pro se, the appellant (respondent mother).

      Cynthia Mahon, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (petitioner).

      Theodore L. Freedman, 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

       June 28,2012, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

PER CURIAM.

The respondent mother appeals from the termination of her parental rights. Having carefully reviewed the record and the briefs of the parties, we conclude that the judgment of the trial court properly was rendered in favor of the petitioner, the commissioner of children and families.

The record reveals the following facts and procedural history. On October 15, 2008, the petitioner filed a neglect petition and a motion for an order of temporary custody with respect to the respondent’s minor son, Enrico S. Specifically, the petitioner alleged that the child was being subjected to illegal activity, domestic and other violence and chronic substance abuse by his parents. The court granted the order of temporary custody ex parte, and, on March 11, 2009, after a hearing, the child was adjudicated neglected and committed to the custody of the petitioner. Although reunification was the initial goal of the permanency plan, the petitioner subsequently sought the termination of the respondent’s parental rights and adoption.

On September 27, 2010, the petitioner filed a petition to terminate the parental rights of the respondent and the child’s father. The respondent moved to revoke the commitment and transfer guardianship of the child to a paternal uncle. These motions were consolidated for trial, which occurred on September 8 and 9, 2011.

The court found that the respondent “has significant problems with substance abuse, mental health and criminal activity, all of which have precluded her from providing a safe and caring home for [the child].” It concluded, therefore, that the petitioner had established, by clear and convincing evidence, that the respondent had failed to achieve sufficient personal rehabilitation and failed to engage in behaviors that would encourage the belief that she could assume a responsible position in the child’s life within a reasonable period of time, given his age and needs. See General Statutes § 17a-112 (j) (3) (B) (i). By the same standard, the court also found that the department of children and families had made reasonable efforts to reunite the respondent and the child. Specifically, the court cited the numerous programs offered to the respondent to help her identify and address her substance abuse and mental health issues. Finally, the court found by clear and convincing evidence that termination of the respondent’s parental rights was in the best interest of the child.

The court, in a comprehensive memorandum of decision, set forth the statutory bases for terminating the parental rights of the respondent. The court also denied the respondent’s motion to revoke the commitment and to transfer guardianship of the child. On December 27, 2011, the self-represented respondent filed this appeal. On appeal, she claims that she received ineffective assistance from her attorney during the proceeding before the trial court. She also appears to argue that the court improperly granted the order of temporary custody.

“Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law .... Self-represented parties are not afforded a lesser standard of compliance, and [a]lthough we are solicitous of the rights of pro se litigants . . . [s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law. . . . We decline to undertake appellate review of claims where there is no reasoned legal argument nor any citation to legal authority.” (Citations omitted; internal quotation marks omitted.) In re Emilie L., 126 Conn. App. 283, 285 n.3, 11 A.3d 1117 (2011).

The respondent did not cite any relevant authority in her brief, nor is there any legal analysis of her allegations of ineffective assistance of counsel. Pursuant to well established precedent, we conclude that this claim has been abandoned as a result of an inadequate brief. See, e.g., In re Nicholas B., 135 Conn. App. 381, 384, 41 A.3d 1054 (2012); In re Kaitlyn A., 118 Conn. App. 14, 20 n.6, 982 A.2d 253 (2009).

With respect to the issue of whether the court properly granted the order of temporary custody and its subsequent finding of neglect, the petitioner argues that we should not review the respondent’s untimely collateral attack on these adjudications. We agree with the petitioner. See In re Stephen M., 109 Conn. App. 644, 662-65, 953 A.2d 668 (2008) (order of temporary custody and finding of neglect constitute final judgments for purposes of appeal; appeal may not be postponed until after final judgment terminating parental rights because immediate appeal is only way to ensure protection of best interests of children).

The judgment is affirmed.

       The court also terminated the parental rights of the child’s father. As he is not a party to this appeal, we need not discuss the reasons for the termination of his parental rights. We refer in this opinion to the respondent mother as the respondent.

       Pursuant to Practice Book § 67-13, the counsel for the child filed a statement adopting the position of the petitioner.

       “In Connecticut, a parent who faces the termination of his or her parental rights is entitled, by statute, to the assistance of counsel. General Statutes § 45a-717 (b). Because of the substantial interests involved, a parent in a termination of parental rights hearing has the right not only to counsel but to the effective assistance of counsel. ... In re Alexander V., 223 Conn. 557, 569, 613 A.2d 780 (1992).” (Internal quotation marks omitted.) In re Nicholas B., 135 Conn. App. 381, 384 n.2, 41 A.3d 1054 (2012).

       Even if we were to review this claim, we would conclude that it would fail on its merits. “In determining whether counsel has been ineffective in a termination proceeding, we have enunciated the following standard: The range of competence . . . requires not errorless counsel, and not counsel judged ineffective by hindsight, but counsel whose performance is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in [that particular area of the] law. . . . The respondent must prove that [counsel’s performance] fell below this standard of competency and also that the lack of competency contributed to the termination of parental rights. ... A showing of incompetency without a showing of resulting prejudice . . . does not amount to ineffective assistance of counsel.” (Internal quotation marks omitted.) In re Dylan C., 126 Conn. App. 71, 91, 10 A.3d 100 (2011). The record reveals that, even if the respondent’s counsel had been deficient, the court properly found that termination was proper in this case. Therefore, the respondent would be unable to show any prejudice. See id., 91-92.


text:
    DORCAS WHITE v. DEPARTMENT OF CHILDREN AND FAMILIES
    (AC 32981)
    Lavine, Beach and Espinosa, Js.
    Argued January 20
    officially released July 17, 2012

      Josephine S. Miller, for the appellant (plaintiff).

      Antoría D. Howard, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).
   Opinion

ESPINOSA, J.

The plaintiff, Dorcas White, appeals from the judgment of the trial court dismissing as untimely her action against the defendant, the department of children and families, alleging employment discrimination on the basis of her disability in violation of General Statutes § 46a-60 (a) (1) and retaliation in violation of § 46a-60 (a) (4). The plaintiff alleges that the court improperly determined that she could not invoke General Statutes § 62-592, the accidental failure of suit statute, to bring her otherwise untimely claims. We affirm the judgment of the trial court.

The following undisputed facts are relevant to our consideration of this appeal. The plaintiff began employment as a social worker with the defendant on June 13, 2003. On July 9, 2003, she injured her back while carrying a child as a part of her regular duties at work. On September 18, 2003, the plaintiff saw her physician, who prohibited her from lifting more than ten pounds.

With the consent of her physician, the plaintiff resumed working without restrictions on December 11, 2003. The plaintiff subsequently reinjured her back while carrying a child at work on April 28, 2004. She was placed on medical leave until June 16, 2004, when she received approval for a temporary light duty assignment. The defendant had a light duty policy that stated that light duty assignments were for a maximum of ninety days, after which the employee had to be able to resume full duties. In November, 2004, the plaintiff underwent back surgery. She returned to work on July 6, 2005, and again received a light duty assignment. On October 3, 2005, she underwent hand surgery, after which she did not return to work until November, 2005.

On January 9, 2006, the plaintiff’s physician determined that the plaintiff had achieved maximum medical improvement and that her work restrictions would be permanent. The defendant notified the plaintiff that, given these permanent restrictions, she could not return to work as a social worker. After determining that there was no alternate position that the plaintiff medically was able to perform, the defendant notified the plaintiff that she was being separated from state service.

On February 13, 2004, the plaintiff filed a complaint with the commission on human rights and opportunities (commission), alleging retaliation in violation of the Workers’ Compensation Act, General Statutes § 31-275 et seq., and discrimination on the basis of race and disability. The commission administratively dismissed this complaint on October 6, 2005. On April 26, 2006, the plaintiff filed an action in the Superior Court claiming (1) race discrimination in violation of the Connecticut Fair Employment Practices Act (fair employment act), General Statutes § 46a-51 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and (2) retaliation in violation of General Statutes § 31-290a. The defendant successfully requested that the case be removed to federal court on the ground that it presented a question of federal law.

On August 15, 2007, the defendant filed a motion for summary judgment in the United States District Court for the District of Connecticut. On August 28, 2007, the plaintiff retained new counsel, and, on August 31, 2007, she filed a motion for leave to amend her complaint to include, among other claims, fair employment act claims of retaliation and discrimination on the basis of disability. The District Court denied this motion on November 30, 2007, stating that the plaintiff had not shown good cause for the amendment. White v. Dept. of Children & Families, United States District Court, Docket No. 3:06-CV-00774 (AWT) (D. Conn. November 30, 2007). On March 31, 2008, the District Court granted the defendant’s motion for summary judgment. White v. Dept. of Children & Families, 544 F. Sup. 2d 112 (D. Conn. 2008). The United States Court of Appeals for the Second Circuit affirmed this decision on May 15, 2009. White v. Dept. of Children & Families, 330 Fed. Appx. 7 (2d Cir. 2009).

The plaintiff initiated the present action in the Superior Court by way of a two count complaint on September 10, 2009, alleging the same underlying facts as pleaded in the complaint in her original action filed in the Superior Court on April 26, 2006, but claiming damages as a result of discrimination on the basis of disability in violation of § 46a-60 (a) (1) and retaliation in violation of § 46a-60 (a) (4). The defendant filed a motion to dismiss on November 13, 2009, asserting that the ninety day statute of limitations had expired on the plaintiffs claims. The plaintiff opposed the motion, claiming that the accidental failure of suit statute, § 52-592, operated to save her otherwise untimely claims. On November 30, 2009, the court granted the motion to dismiss, finding that the matter already had been tried on the merits and, accordingly, that § 52-592 did not apply. The plaintiff filed the present appeal on December 10, 2010.

The plaintiff claims that the court improperly determined that she could not invoke § 52-592 to bring her otherwise untimely disability discrimination and retaliation claims. The plaintiff posits that the plain language of § 52-592 permits her to bring additional state law claims arising from the same set of facts that constituted the cause of action for her complaint in the District Court. According to the plaintiff, as long as those claims were not tried on the merits and arose from the same cause of action as the claims dismissed in the District Court, § 52-592 allows the plaintiff to bring them in the Superior Court at any time within one year after the dismissal in the District Court or, if an appeal was taken, after the determination of the appeal. We reject the plaintiffs argument under § 52-592 because we conclude that her disability discrimination and retaliation claims in the present case arose from a separate and distinct cause of action that she did not bring within the time allowed by the statute of limitations.

“[T]he question of whether the court properly applied § 52-592 presents an issue of law over which our review is plenary.” Tellar v. Abbott Laboratories, Inc., 114 Conn. App. 244, 249, 969 A.2d 210 (2009). “Although § 52-592 is remedial in nature, passed to avoid hardships arising from an unbending enforcement of limitation statutes ... it should not be construed so liberally as to render statutes of limitation virtually meaningless. . . . The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts.” (Citations omitted; internal quotation marks omitted.) Davis v. Family Dollar Store, 78 Conn. App. 235, 240, 826 A.2d 262 (2003), appeal dismissed, 271 Conn. 655, 859 A.2d 25 (2004).

In Daoust v. McWilliams, 49 Conn. App. 715, 716 A.2d 922 (1998), this court addressed the question of whether § 52-592 operated to save only the same state law claims that were dismissed in federal court. The plaintiff in Daoust brought an action in the United States District Court for the District of Connecticut alleging violations of several of his rights under the federal constitution, 42 U.S.C. §§ 1983 and 1988, and the laws of Connecticut. Id., 717. The District Court granted summary judgment against the plaintiff and refused to exercise supplemental jurisdiction to decide the state law claims. Id., 717-18. Subsequently, the plaintiff filed an action in the Superior Court alleging, among other claims, state law claims that were not pleaded in his action in the District Court and for which the statute of limitations had run. Id., 718. The plaintiff asserted that he could bring these untimely state claims pursuant to § 52-692, but the trial court disagreed, holding that § 52-592 allowed a plaintiff to bring only those state law claims that were dismissed without prejudice in federal court. Id., 720-21.

On appeal, this court reversed the decision of the trial court, stating that “[§] 52-592 uses the words action and cause of action, and not claim, to refer to what is allowed to be brought under its provisions. . . . Even though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action. . . . [I]t is evident that both the initial suit filed in the federal court and the subsequent suit filed in the Superior Court constitute the same cause of action, although they may involve different claims for relief. . . . Because the plaintiffs [state law] claims . . . are part of a new action . . . for the same cause brought within one year after the determination of the original action, as required by § 52-592 (a), they are not barred by the three year statute of limitations.” (Citations omitted; internal quotation marks omitted.) Id., 721-22.

We conclude that the plaintiffs cause of action for disability discrimination and retaliation under the fair employment act was not before the federal court. The plaintiffs April 26, 2006 complaint brought in the Superior Court did not allege these claims, bringing only claims of race discrimination and retaliation under the Workers’ Compensation Act. After the case was removed to federal court, the District Court denied the plaintiffs motion to amend her complaint to include her disability discrimination and retaliation claims under the fair employment act. Therefore, the District Court never considered these claims on their merits.

Furthermore, we axe not persuaded that these claims arise from the same cause of action as the claims that properly were before the District Court, namely, the claims of race discrimination and retaliation under the Workers’ Compensation Act. Unlike in Daoust, the two sets of claims here do not involve the same conduct and do not arise from the same cause of action. The conduct that the plaintiff would be required to demonstrate for her disability discrimination claims would be completely distinct from the conduct she would be required to demonstrate for her race discrimination claims. Accordingly, in the present case, the plaintiff is alleging a new cause of action that is separate from the cause of action that was the basis of her April 26, 2006 complaint. Because the present case involves a new cause of action, the plaintiff may not invoke § 52-592 to save any untimely claims.

Having concluded that the present case involves a new cause of action, we must determine whether the claims made in the complaint are timely. Under General Statutes § 46a-101 (e), the plaintiff had ninety days from the receipt of a release of jurisdiction from the commission to bring an action in the Superior Court. See also General Statutes § 46a-83a. Throughout the course of this litigation, there has been an ongoing dispute between the parties regarding whether the plaintiff actually received this release from the commission. Our review of the record reveals no finding of fact by any court regarding the plaintiffs receipt of the release. The plaintiff represents, however, in her reply brief to this court that the release was actually obtained prior to the District Court rendering its judgment. The District Court issued its decision on March 31, 2008. See White v. Dept. of Children & Families, supra, 544 F. Sup. 2d 112. Even if we accept the plaintiffs representation as true, the plaintiff received the release more than one year prior to initiating the present action in the Superior Court on September 10, 2009. By that time, the ninety day statute of limitations long since had expired on her claims of disability discrimination and retaliation under the fair employment act. Accordingly, her action was barred by the statute of limitations. We conclude that the court properly dismissed the complaint, even though we disagree with the reasons articulated by the court.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer’s agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness . . . [or] (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84 . . . .”

       General Statutes § 46a-101 (e) provides: “Any action brought by the complainant in accordance with section 46a-100 shall be brought within ninety days of the receipt of the release from the commission.”

       General Statutes § 52-592 provides in relevant part: “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . because the action has been dismissed for want of jurisdiction . . . the plaintiff . . . may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment. . . .
      “(d) The provisions of this section shall apply to . . . any action between the same parties or the legal representatives of either of them for the same cause of action or subject of action brought to any court in this state, either before dismissal of the original action and its affirmance or within one year after the dismissal and affirmance, and to any action brought to the United States circuit or district court for the district of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court. If such action is within the jurisdiction of any state court, the time for bringing the action to the state court shall commence from the date of dismissal in the United States court, or, if an appeal or writ of error has been taken from the dismissal, from the final determination of the appeal or writ of error. . . .”

       Specifically, the plaintiff would be required to establish a different discriminatory intent on the part of the defendant to maintain each set of claims. See General Statutes § 46a-60 (a) (1) (barring discrimination by employer on basis of employee’s “race” or “physical disability”). For example, evidence that the defendant provided more opportunities for light duty work to similarly situated employees of a different racial background than the plaintiff, although potentially relevant to her race discrimination claims, would not assist her in making her disability discrimination claims. Each set of claims would require demonstrating different facts that could be construed as evidence of the two distinct discriminatory motives. See Sherman v. Ronco, 294 Conn. 548, 563, 985 A.2d 1042 (2010) (“[i]f . . . the new theory of liability is not supported by the original factual allegations of the earlier, timely complaint, and would require the presentation of new and different evidence, the amendment does not relate back”); Craine v. Trinity College, 259 Conn. 625, 636-38, 791 A.2d 518 (2002) (discussing plaintiffs burdens in making prima facie case of discrimination).

       We may affirm the judgment of the court on different grounds if we disagree with the grounds relied on by the court. See, e.g., Vaillancourt v. Latifi, 81 Conn. App. 541, 544 n.4, 840 A.2d 1209 (2004).


author: SCHALLER, J.

text:
    RAJIV SETHI v. BRUHAN YAGILDERE
    (AC 32868)
    Robinson, Sheldon and Schaller, Js.

      Argued January 3
    officially released July 17, 2012

      Laurence V. Pamoff for the appellant (plaintiff).

      Stephen P. Wright, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Rajiv Sethi, appeals from the summary judgment rendered by the trial court in favor of the defendant, Bruhan Yagildere. On appeal, the plaintiff claims that the court improperly determined that he lacked standing to allege unjust enrichment and a violation of the Connecticut Unfair Trade Practice Act (CUTPA). We conclude that, although the trial court correctly determined that the plaintiff lacked standing, it was incorrect to render summary judgment in the absence of subject matter jurisdiction. Accordingly, we reverse the judgment of the trial court and remand the case with direction to render a judgment of dismissal.

The plaintiff commenced the present action against the defendant on December 28, 2009. The operative complaint, filed by the plaintiff on May 26, 2010, alleges the following facts. The defendant owns and operates a business known as the “Bereket Deli” located at 4031 Main Street in Bridgeport. In April, 2004, the defendant orally agreed to sell the business. Shortly thereafter, the plaintiffs father “gave [the defendant] the sum of $70,000 as a deposit” and “took over the operation of the business . . . .” In September, 2004, the defendant “wrongfully evicted” the plaintiffs father and sold a one-half interest in the business to another party. The defendant subsequently refused to return the deposit. The complaint also alleges that, in a previous action brought by the plaintiffs father, the court found that the deposit was “ ‘paid by his son to the [d]efendanf ” and that the plaintiff was the son referred to in that decision. The complaint contains no allegation that the plaintiff entered into a contract with the defendant or paid any money in connection with the sale of the defendant’s business. Count one of the complaint alleges unjust enrichment. Count two alleges a violation of CUTPA.

On July 1, 2010, the defendant filed a motion for summary judgment arguing, inter alia, that the plaintiff lacked standing to bring the action. The court granted this motion on October 14, 2010. This appeal followed.

We begin our analysis by setting forth our standard of review and the relevant legal principles. “If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause. ... A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009).

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.” (Internal quotation marks omitted.) Id.

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action .... Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the [challenged action]. . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 207, 994 A.2d 106 (2010). The plaintiff has the burden of demonstrating that he is the proper party to invoke the court’s jurisdiction. Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S. Ct. 659, 163 L. Ed. 2d 526 (2005).

In the present case, the plaintiff proceeds under a theory that the deposit was paid by his father. Indeed, the complaint contains an explicit allegation that the plaintiffs father, Balram Sethi, “gave [the defendant] the sum of $70,000 as a deposit for the business [and] took over the operation of the business . . . .” This allegation constitutes a judicial admission that the plaintiffs father, and not the plaintiff, paid the deposit. See Dreier v. Upjohn Co., 196 Conn. 242, 248, 492 A.2d 164 (1985) (“[factual allegations contained in pleadings upon which the cause is tried are considered judicial admissions and hence irrefutable as long as they remain in the case”). Moreover, in an affidavit filed in opposition to the defendant’s motion for summary judgment, the plaintiff stated that “I never had any contract with the [defendant and never paid anything to the [defendant.” Under such circumstances, the trial court was correct to conclude that the plaintiff did not have standing to allege a wrongful retention of the deposit.

The factual findings relating to the payment of the deposit made in connection with the plaintiffs father’s case do not alter this conclusion. While litigation of a factual question might, under some circumstances, be binding in a subsequent case; see, e.g., Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296-97, 596 A.2d 414 (1991) (collateral estoppel); the prior court’s conclusion that the plaintiff paid the deposit is wholly inconsistent with the allegations made by the plaintiff in his complaint and the assertions contained within his affidavit. Although the plaintiff could have pursued his claims under a theory that he paid the deposit, a factual allegation which would have been entirely consistent with the resolution of his father’s case, it is abundantly clear that he is not doing so in the present case.

The absence of standing deprives the court of subject matter jurisdiction. See Burton v. Commissioner of Environmental Protection, supra, 291 Conn. 802. Consequently, the award of summary judgment in favor of the defendant was, as a matter of form, improper. See 418 Meadow Street Associates, LLC v. Clean Air Partners, LLC, 123 Conn. App. 416, 417-18, 1 A.3d 1194, cert. granted on other grounds, 298 Conn. 932, 5 A.3d 490 (2010) (reversing judgment in favor of defendant and remanding case with direction to dismiss after concluding that plaintiff lacked standing); Terese B. v. Commissioner of Children & Families, 68 Conn. App. 223, 228, 789 A.2d 1114 (2002) (“[ajggrievementis essentially a question of standing; without it, a court must dismiss an action for want of jurisdiction” [internal quotation marks omitted]).

The form of judgment is improper, the judgment is reversed and the case is remanded with direction to render judgment dismissing the case for lack of subject matter jurisdiction.

In this opinion the other judges concurred.

       See General Statutes § 42-110a et seq.

       The plaintiff also argues on appeal that the trial court incorrectly concluded that the three year statute of limitations applicable to CUTPA claims; see General Statutes § 42-1 lOg (f); barred the second count of his complaint. Because we conclude that the plaintiff lacks standing to bring this action, we need not address this claim of error.

       The complaint does not identify the other party to this alleged agreement.

       The plaintiffs father, Balram Sethi, filed a separate action in the trial court, seeking, inter alia, a return of the deposit under a theory of unjust enrichment. See Sethi v. Yaglidere, Superior Court, judicial district of Fairfield, Docket No. CV-04-4003034-S (August 24, 2009). On August 24, 2009, the court, Arnold J., stated that the plaintiff “paid the defendant the sum of [$70,000] toward the purchase price for the business, utilizing [his own] funds.” On the basis of this conclusion, the court found that Balram Sethi did not have standing to allege that the defendant wrongfully retained the deposit. Id. This judgment was subsequently affirmed by this court. See Sethi v. Yagildere, 125 Conn. App. 902, 10 A.3d 52 (2010), cert. denied, 299 Conn. 929, 12 A.3d 570 (2011).

       In response to a motion filed by the plaintiff, the court subsequently issued a written memorandum of decision regarding the defendant’s motion for summary judgment on March 10, 2011.

       We note that, although the use of a motion for summary judgment may be a proper vehicle to raise issues of subject matter jurisdiction in some cases; see Manifold v. Ragaglia, 94 Conn. App. 103, 121 n.11, 891 A.2d 106 (2006); generally, “[t]he proper procedural vehicle for disputing a party’s standing is a motion to dismiss.” Cadle Co. v. D’Addario, 268 Conn. 441, 445 n.5, 844 A.2d 836 (2004). We see no reason to deviate from the general practice in the present case. Consequently, we treat the defendant’s motion for summary judgment as a motion to dismiss. See id.

       When addressing issues of subject matter jurisdiction, factual assertions contained within affidavits may be considered to the extent they represent undisputed statements of fact. See May v. Coffey, 291 Conn. 106, 108-109, 967 A.2d 495 (2009); LaSalle Bank, National Assn. v. Bialobrzeski, 123 Conn. App. 781, 789-90, 3 A.3d 176 (2010); see also Practice Book § 10-31.

       We also note that the second count of the complaint contains an allegation that the plaintiff was “financially damaged” by the acts of the defendant. The presence of this allegation does not, in light of the specific allegation that the deposit was paid by the plaintiffs father, alter our conclusion on the issue of standing.