author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. EDWARD FERREIRA
    (AC 17814)
    Landau, Schaller and Hennessy, Js.

      Argued March 4
    officially released September 7, 1999

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom were John Davenport, assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Edward Ferreira, appeals from the judgment of conviction, rendered after a jury trial, of aiding and abetting manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-8 (a) and 53a-55a (a). The defendant’s sole claim on appeal is that it was improper for the trial court to instruct the jury that the crime of aiding and abetting manslaughter in the first degree with a firearm is a lesser included offense of aiding and abetting a murder when the information fails to allege the use of a firearm in the commission of the murder.

The following procedural history is relevant to the resolution of this issue. The state charged the defendant in a substitute information with murder in violation of General Statutes § 53a-54a (a), aiding and abetting murder in violation of General Statutes §§ 53-8 (a) and 53a-54a (a), felony murder in violation of General Statutes § 53a-54c, conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a) and aiding and abetting burglary in the first degree in violation of General Statutes §§ 53a-8 (a) and 53a-101 (a) (1). On March 24, 1997, prior to trial, the state filed a supplemental bill of particulars, which indicated the manner in which the crimes were allegedly committed.

The trial court instructed the jury that it could consider whether the defendant was guilty of any of four lesser included offenses, including aiding and abetting manslaughter in the first degree with a firearm in violation of §§ 53a- 8 (a) and 53a-55a (a). The defendant did not object to the trial court’s instruction on this lesser included offense. The jury returned a verdict of not guilty on all of the charges in the substitute information, and guilty on the lesser included offense of aiding and abetting manslaughter in the first degree with a firearm.

The defendant argues that the information charged him with two alternative counts of murder but did not mention that a firearm was used in the commission of the murder. Citing State v. Guess, 39 Conn. App. 224, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995), and State v. Falcon, 26 Conn. App. 259, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992), the defendant further argues that, under these circumstances, it was improper for the trial court to instruct the jury that it could consider aiding and abetting manslaughter in the first degree with a firearm as a lesser included offense of murder. The state responds that the trial court properly instructed the jury regarding the lesser included offense of aiding and abetting manslaughter in the first degree with a firearm because the bill of particulars specifically alleged that the defendant and his accomplices shot and killed the victim with a deadly weapon. We agree with the state.

As a threshold matter, we note that the defendant did not raise this issue at trial and now seeks review under either the plain error doctrine or State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review this claim under Golding because the record is adequate for review and “[t]he lesser included offense doctrine implicates notice requirements of due process.” State v. Falcon, supra, 26 Conn. App. 264. The defendant’s claim fails under the third prong of Golding, however, because the alleged constitutional violation did not clearly exist and did not clearly deprive the defendant of a fair trial.

A criminal defendant has a constitutional right “to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial.” (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 381, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). The state satisfies this constitutional mandate when its pleadings inform “the defendant of the charge [s] against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and [are] definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .” (Internal quotation marks omitted.) Id. “Where one or more offenses are lesser than and included in the crime charged in the information, notice of the crime charged includes notice of all lesser included offenses. . . . The test for determining whether one crime is a lesser included offense of another crime is whether it is possible to commit the greater offense in the manner described in the information or bill of particulars without having first committed the lesser.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Falcon, supra, 26 Conn. App. 264.

This court has held that a defendant cannot be lawfully convicted of manslaughter in the first degree with a firearm as a lesser included offense of murder when there is no allegation that the defendant committed the murder by the use of a firearm. See State v. Guess, supra, 39 Conn. App. 238. This is because the crime of manslaughter in the first degree with a firearm would require proof of an additional element, namely the use of a firearm, that is not a necessary element to the crime of murder as alleged; see State v. Falcon, supra, 26 Conn. App. 265-66; and, therefore, it would be possible to commit the greater offense without having first committed the lesser.

The defendant argues that in Falcon and Guess, “this court considered the identical issue raised here, finding that the offense of manslaughter in the first degree with a firearm is not a lesser included offense of murder when the information fails to allege that a firearm was used in the commission of the murder.” In both of the cases cited there was no allegation in the information that a firearm was used in the commission of the crime. Neither case, however, discussed a bill of particulars. In State v. Guess, supra, 39 Conn. App. 237, the state urged this court to consider other counts in the information, which referred to the use of a handgun, and to the probable cause hearing to supply the missing element, namely, the use of a handgun. This court declined to do so. In State v. Falcon, supra, 26 Conn. App. 266, this court held that “it is simply irrelevant that the evidence adduced at trial could have supported the additional element of use of a firearm.”

In this case, the state is asking this court to consider the information and the bill of particulars together in determining whether there was an allegation that the defendant committed the minder by means of a firearm. We have held that it is appropriate for this court to “look at the statutes, the information and the bill of particulars ... to determine what constitutes a lesser included offense of the offense charged.” (Emphasis added.) Id. We must decide, therefore, whether it is possible to commit murder, in the manner described in the information and the bill of particulars, without first having committed manslaughter in the first degree with a firearm.

The state charged the defendant in a substitute information with, inter alia, aiding and abetting murder in violation of §§ 53a-8 (a) and 53a-54a (a). On March 24, 1997, prior to trial, the state filed a supplemental bill of particulars. The bill of particulars alleged that the defendant committed the charged offenses in the following manner: “The defendant, accompanied by two others, agreed to go to 66-68 York Street, Waterbury, Connecticut to kill Donald Bedard by means of a deadly weapon. . . . The defendant and at least one other person went into 66-68 York Street and shot and killed Donald Bedard and removed a box which contained money.” (Emphasis added.) Count two of the substitute information provided that the defendant “did commit the crime of murder in violation of [General Statutes] §§ 53a-8 (a) and 53a-54a (a) in that on or about January 21,1996, at or about 9 a.m., at or near 66-68 York Street, Waterbury, [Connecticut], the said [defendant] acting with the intent to cause the death of another person, solicited and intentionally aided another person to cause the death of another person, to wit: Donald Bedard.” The defendant, therefore, was given notice through the information and the bill of particulars that he was charged with the crime of aiding and abetting murder, and that it was alleged that he and his associates shot and killed the victim by means of a deadly weapon.

Section 53a-55a (a) provides in relevant part that “[a] person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. . . A firearm is defined as “any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged . . . General Statutes § 53a-3 (19). General Statutes § 53a-3 (6) defines a deadly weapon as “any weapon, whether loaded or unloaded, from which a shot may be discharged, or a switchblade knife, gravity knife, billy, blackjack, bludgeon, or metal knuckles.

Because the statutory definitions of firearm and deadly weapon both include a weapon from which a shot may be discharged and because a firearm is the only deadly weapon, as defined in the statutes, which is capable of shooting, it is impossible to commit murder in the manner described in the information or bill of particulars without having committed manslaughter in the first degree with a firearm. We conclude, therefore, that the notice contained in the bill of particulars and the information was adequate to inform the defendant that a firearm was used in the commission of the murder. The trial court, therefore, properly instructed the jury that aiding and abetting manslaughter in the first degree with a firearm is a lesser included offense of aiding and abetting murder.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-55a (a) provides: “A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. No person shall be found guilty of manslaughter in the first degree and manslaughter in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”
      “[W]e will review an unpreserved claim under the plain error doctrine only in those 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.” (Internal quotation marks omitted.) State v. Crespo, 246 Conn. 665, 687, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999).

       “In State v. Golding, [supra, 213 Conn. 239-40, our Supreme Court] reformulated the standard announced in State v. Evans, [165 Conn. 61, 327 A.2d 576 (1973)], for appellate consideration of constitutional claims that were not preserved at trial. [Our Supreme Court] stated that ‘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.’ . . . State v. Golding, supra, [239-40].” (Emphasis in original.) State v. Watlington, 216 Conn. 188, 192, 579 A.2d 490 (1990). “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Manfredi, 17 Conn. App. 602, 621, 555 A.2d 436 (1989), aff'd, 213 Conn. 500, 569 A.2d 506, cert. denied, 498 U.S. 818, 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990).

       We note that in this case as in State v. Cole, 8 Conn. App. 545, 554-56, 513 A.2d 752 (1986), a substitute long form information was filed which did not include the factual details included in a bill of particulars filed prior to the information as is required by Practice Book § 41-20 et seq., formerly § 831 et seq. We find that this omission was harmless since there was no difference between the informations filed before and after the filing of the bill of particulars and, when the information and the bill of particulars were read together, they informed the defendant of the charges against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JEFFREY TORRANCE
    (AC 18837)
    Foti, Landau and Dupont, Js.
    Submitted on briefs June 9
    officially released September 7, 1999

      Lee N. Johnson filed a brief for the appellant (defendant).

      Kevin T. Kane, state’s attorney, Rita, M. Shair, assistant state’s attorney, and Lonnie Braxton, deputy assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Jeffrey Torrance, appeals from the trial court’s denial of his demand for a trial de novo filed pursuant to General Statutes § 51-193u (d). See also Practice Book § 44-30. He claims that the trial court improperly concluded that it lacked jurisdiction. We agree and reverse the trial court’s ruling.

The defendant was ticketed for failure to make an appropriate turn signal in violation of General Statutes § 14-242. He entered aplea of not guilty, was tried before a magistrate, found guilty and fined $78. He was instructed to pay the fine at the clerk’s office, which he did before leaving the courthouse. Three days later he filed his demand for a trial de novo, which was denied by the trial court. The trial court concluded that because the defendant paid the fine, the trial court lacked jurisdiction to grant a trial de novo.

The state concedes, and we agree, that the magistrate system does not preclude a person from the opportunity to be heard before a judge of the Superior Court. Because the defendant filed his demand for a trial de novo within five days of the magistrate’s action as required by § 51-193u (d), the magistrate’s ruling became null and void, and the defendant was entitled to a trial de novo.

The judgment is reversed and the matter is remanded for a trial de novo.

       General Statutes § 51-193u (d) provides: “A decision of the magistrate, including any penalty imposed, shall become a,judgment of the court if no demand for a trial de novo is filed. Such decision of the magistrate shall become null and void if a timely demand for a trial de novo is filed. A demand for a trial de novo shall be filed with the court clerk within five days of the date the decision was rendered by the magistrate and, if filed by the prosecutorial official, it shall include a certification that a copy thereof has been served on the defendant or his attorney, in accordance with the rules of court. No record of the proceedings shall be required to be kept.”

       Practice Book § 44-30 provides in relevant part: “(a) Infractions and motor vehicle violations which may be submitted to a magistrate pursuant to statute may be heard by magistrates in those court locations where a magistrate has been appointed by the chief court administrator, except that magistrates may not conduct jury trials.

        “(b) Hearings by magistrates shall be conducted in accordance with the criminal rules of evidence and with the provisions of chapter 42 insofar as the provisions of that chapter are applicable. A magistrate shall sign all orders the magistrate issues, such signature to be followed by the word ‘magistrate.’
      “(c) A decision of the magistrate, including any penalty imposed, shall become a judgment of the court if no demand for a trial de novo is filed. Such decision of the magistrate shall become null and void if a timely demand for a trial de novo is filed. A demand for a trial de novo shall be filed with the court clerk within five days of the date the decision was rendered by the magistrate and, if filed by the prosecuting authority, it shall include a certification that a copy thereof has been served on the defendant or his or her attorney, in accordance with the rules of practice. . . .”

       General Statutes § 54-96a vacates an appeal and restores the judgment “of the Superior Court” of a fine only, when the fine is paid before the appeal is heard. The payment of such a fine fully executes the sentence, terminates the case and precludes an appeal. State v. Jenkins, 35 Conn. Sup. 516, 518, 394 A.2d 294 (1977); State v. Henkel, 23 Conn. Sup. 135, 137, 177 A.2d 684 (1961). The fine in the present case is not from a judgment of the Superior Court.


author: O’CONNELL, C. J.

text:
    STATE OF CONNECTICUT v. ROBERT C. HOOVER
    (AC 17365)
    O’Connell, C. X, and Foti and Sullivan, Js.
    Argued June 1
    officially released September 7, 1999

      Richard S. Cramer, for the appellant (defendant).

      Eileen McCarthy Geel, assistant state’s attorney, with whom were Stephen G. Preleski, supervisory assistant state’s attorney, and Ronald Dearstyne, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant, Robert C. Hoover, appeals from the judgment of conviction, rendered following a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103, larceny in the sixth degree in violation of General Statutes § 53a-125b and failure to appear in the second degree in violation of General Statutes § 53a-173. The defendant claims that the trial court improperly (1) found there was sufficient evidence to support the charge of failure to appear in the second degree, (2) admitted into evidence a police photograph and (3) instructed the jury on reasonable doubt and the presumption of innocence. We affirm the judgment of the trial court.

This appeal arises out of the theft of an air conditioner from the back of a truck parked on Center Street in Southington. On the evening of June 20, 1996, Joseph Gardner and Alexander Kulesza spent the evening at a bar in Southington. Upon leaving the bar, they came upon two young men, one of whom was stealing an air conditioner out of the back of Gardner’s truck. Gardner confronted the thief, pushed the air conditioner out of his hands and hit him once in the face near his eye. The perpetrator then fled. When police arrived a short time later, the two witnesses described the thief as a young man with light hair wearing a yellow T-shirt. The police took Gardner and Kulesza to the comer of West Center and South Center Streets where an officer was questioning the defendant. Both witnesses positively identified the defendant as the person who had stolen the air conditioner, and the defendant was advised of lús rights, transported to the police station, fingerprinted and photographed.

The defendant was released on a written promise to appear in court on July 1,1996. The defendant appeared on that date pro se and pleaded not guilty to the charges against him. The defendant returned to court on July 25,1996, and was ordered to return on August 15, 1996, for a pretrial. On August 15, 1996, the defendant appeared and the pretrial was continued until September 5, 1996. The docket sheet for September 5, 1996, admitted into evidence without objection, affirms that the defendant failed to appear on that date. The court issued a rearrest order and set a new bond.

On September 9, 1996, the defendant came to the courthouse and filed a pro se motion to vacate the rearrest order. In his motion, the defendant stated that he failed to appear because of an out of state wedding. The defendant’s motion was denied and the defendant was arraigned on the failure to appear charge.

At trial, the defendant testified that he had not gone out of state for a wedding, but that he had gone out of state to visit a friend from August 15 until September 8, 1996, and that he missed his September 5, 1996 appearance because he mistakenly thought that his case was continued until September 9, 1996.

I

The defendant first claims that there was insufficient evidence to convict him of failure to appear in the second degree. Specifically, the defendant contends that the state did not prove beyond a reasonable doubt that he wilfully failed to appear in court.

The standard of review for a sufficiency of the evidence claim is well settled. “In reviewing [a] sufficiency [of the evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994).

Section 53a-173 provides that, to secure a conviction for failure to appear in the second degree, the state must prove beyond a reasonable doubt that the defendant was legally ordered to appear under the terms of his bail bond, that he failed to appear and that such failure was wilful. To prove the wilful element of failure to appear “the state must prove beyond a reasonable doubt . . . that the defendant received and deliberately ignored a notice to appear . . . .” (Internal quotation marks omitted.) State v. Cassidy, 236 Conn. 112, 135, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996).

In this case, the transcript of August 15, 1996, which was read to the jury, clearly demonstrated that the defendant received oral notice of the order to appear for a pretrial on September 5, 1996. The state further provided evidence that the defendant signed his appearance bond in which he agreed to appear in court on the date assigned to him and on any subsequent dates, and acknowledged that he understood that he would be charged with failure to appear if he did not appear on any date on which he was ordered to appear. The defendant did not notify the court of his inability to appear prior to missing the September 5 court date but, instead, filed a motion four days after his failure to appear asserting an admittedly false reason for his absence. Although the defendant testified at trial that he did not know that his court date was set for September 5, 1996, the jury was not required to credit that testimony. Instead, the jury was entitled to rely on the transcript and the signed appearance bond to infer that the defendant had knowledge of his obligation to appear in court on September 5, and wilfully chose not to attend. It is the function of the jury to consider the evidence and to judge the credibility of witnesses. State v. Dudla, 190 Conn. 1, 7, 458 A.2d 682 (1983). The jury is free to accept or reject all or part of a witness’ testimony. State v. Brigandi, 186 Conn. 521, 531, 442 A.2d 927 (1982). “Although some evidence may be inconsistent with the state’s theory of the case, the jury is not bound to credit only that evidence to the exclusion of evidence consistent with the state’s theory. State v. Pinnock, 220 Conn. 765, 775-76, 601 A.2d 521 (1992).” State v. Salz, 226 Conn. 20, 29-30, 627 A.2d 862 (1993). Consequently, the defendant’s sufficiency claim must fail.

II

The defendant’s second claim is that the trial court improperly admitted into evidence a photograph of him, commonly known as a mug shot, which was taken by the police at the time of his arrest. He claims that it was both irrelevant and prejudicial.

“ ‘A mug shot is admissible if it is relevant and material and if its probative value outweighs its prejudicial tendency. . . .’ State v. Peary, 176 Conn. 170, 175-76, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979).” State v. Ruffin, 48 Conn. App. 504, 510, 710 A.2d 1381, cert. denied, 245 Conn. 910, 718 A.2d 18 (1998). “The primary responsibility for conducting the prejudicial-probative balancing test rests with the trial court, and its conclusion will be disturbed only for a manifest abuse of discretion.” State v. Figueroa, 235 Conn. 145, 162, 665 A.2d 63 (1995).

In this case, identification of the defendant as the individual who had stolen the air conditioner was at issue. Both of the witnesses testified at trial that the perpetrator of the burglary and larceny had light hair and wore a yellow T-shirt. They further testified that Gardner had struck the perpetrator in the face near the eye. Although both witnesses positively identified the defendant as the perpetrator on the evening of the crime, neither could identify the defendant in court nine months later. The photograph in question was taken shortly after the crime and showed the defendant wearing a yellow T-shirt and bearing a facial injury next to his eye. The photograph was clearly relevant, therefore, to the identification of the defendant as the perpetrator.

The defendant also claims that the admission of the mug shot was more prejudicial than probative. Before it was offered into evidence, all police identifying markings were removed from the photograph. Even without removal of the markings, however, we are unable to understand any claim of prejudice.

Defendants commonly object to the introduction of mug shots from prior arrests on the ground that the jury may infer that they have criminal records and are therefore more likely to have committed the charged crime than would a person with no record. See, e.g., State v. Woods, 171 Conn. 610, 612-13, 370 A.2d 1080 (1976); State v. Ruffin, supra, 48 Conn. App. 510-11; State v. Harris, 43 Conn. App. 830, 838, 687 A.2d 544 (1996). In the present case, however, the photograph was taken in connection with the very case for which the defendant was on trial. We cannot conclude that it came as a surprise to the jurors that a person on trial before them for burglary, larceny and failure to appear had been arrested for those crimes. The claim of prejudice, therefore, has no merit.

Ill

The defendant’s final claim is that the trial court improperly instructed the jury on reasonable doubt and the presumption of innocence. The defendant did not object at trial to either of these instructions and has failed to seek review of them under the doctrine of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). This court will not review claims that were not distinctly raised in the trial court. Practice Book § 60-5; State v. Tillman, 220 Conn. 487, 504, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992); Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 716, 535 A.2d 799 (1988). Under an exception to that rule, a defendant may prevail on a claim of constitutional error not preserved at trial if all the conditions of State v. Golding, supra, 239-40, are met. It is well established, however, that to obtain extraordinary review of an unpreserved claim under Golding, the defendant must make a claim of entitlement, invoking the Golding reviewability doctrine and discussing its application. Where the defendant fails to invoke the Golding doctrine as a basis for review of a claim or fails otherwise to brief any claim of entitlement to such review, his claim is not reviewable. State v. Jones, 50 Conn. App. 338, 346-47, 718 A.2d 470 (1998); State v. Teel, 42 Conn. App. 500, 504, 681 A.2d 974, cert. denied, 239 Conn. 921, 682 A.2d 1012 (1996). Accordingly, we decline review of this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       At oral argument before this court, defense counsel attempted to withdraw this claim. Due to lack of certainty as to whether the withdrawal was with the defendant's consent, we elect to consider it.

       Under the Golding guidelines, a defendant can prevail on a constitutional claim, 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.” State v. Golding, supra, 213 Conn. 239-40. If any one of these conditions is missing, the defendant’s claim will fail.


text:
    STATE OF CONNECTICUT v. CHRISTOPHER DUMAS
    (AC 17703)
    O’Connell, C. J., and Hennessy and Daly, Js.
    Argued June 4
    officially released September 14, 1999

      Francis T. Mandanici, assistant public defender, for the appellant (defendant).

      LeonF. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Christopher Dumas, appeals from the judgment of conviction, rendered after a trial to the court, of carrying a dangerous weapon without a permit in violation of General Statutes § 53-206, attempt to commit larceny in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-123 (a) (3), attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (3), and violation of probation in violation of General Statutes § 53a-32. On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction, (2) the prosecutor committed misconduct during his closing argument, (3) the trial court improperly failed to recuse itself, (4) the trial court improperly granted the state’s discovery request for a fingerprint examination and improperly denied his discovery request for an eye examination of the victim, (5) the trial court improperly required the defendant to sit at the defense table dining the trial and (6) the trial court improperly admitted hearsay evidence. We affirm the judgments of the trial court.

The following facts are necessary to a proper resolution of the defendant’s appeal. On August 16, 1996, at approximately 9:15 a.m., the victim, Sheldon Taubman, was walking on a sidewalk in downtown New Haven. The defendant ran into the victim, pinned him against an iron fence and held a knife pointed downward at him. The victim then felt a tugging on a backpack that he was carrying on his left shoulder. The defendant, however, was unable to take the victim’s backpack.

The victim escaped from the defendant and ran toward Olive Street. Before reaching Olive Street, the victim looked behind him and saw the defendant walking quickly in the opposite direction. The victim yelled for help from some nearby people. After the victim began yelling for help, the defendant started running. The victim then chased the defendant. During the chase, the victim saw a police officer, told him about the incident and gave him a description of the perpetrator.

Approximately one hour later, some officers brought the victim back to the scene of the incident. The officer who brought the victim back then asked him to observe the defendant as some officers removed him from the police car across the street. The victim told the officer that everything about the defendant was consistent with the appearance of the perpetrator, even though he had not been able to observe the perpetrator’s face clearly during the incident.

I

The defendant first claims that the evidence was insufficient to support his conviction. Specifically, the defendant claims that the evidence was insufficient to prove that (1) he intended to commit larceny in the second degree and robbery in the first degree and (2) the blade of his knife was four inches or longer. We disagree.

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all reasonable inferences that it yields, a trier of fact could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.” (Citations omitted.) State v. Scales, 38 Conn. App. 225, 228, 660 A.2d 860 (1995).

A

The defendant claims that the evidence was insufficient to prove that he had the mental state required for the commission of attempt to commit larceny and robbery. We disagree.

General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (3) the property ... is taken from the person of another . . . .” “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .” General Statutes § 53a-119.

“It is well established that [t]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the [finder of fact] to decide.” (Internal quotation marks omitted.) State v. Watson, 50 Conn. App. 591, 605, 718 A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058, 119 S. Ct. 1373, 143 L. Ed. 2d 532 (1999).

From the evidence presented and all of the reasonable inferences that it yields, the trial court reasonably could have found that the defendant had the requisite intent to commit larceny in the second degree and robbery in the first degree. The victim’s testimony supports the trial court’s finding that the defendant intentionally and forcibly stopped the victim, pinned him against a fence while holding a large knife and attempted to pull the defendant’s backpack from his left shoulder before the victim could escape.

The defendant claims that “it would be pure speculation to conclude that the peipetrator pinned him against the fence as compared to merely bumping into him, especially since the peipetrator said nothing that constituted an intent to take any property.” We disagree, however, because the trial court reasonably could have found that the defendant, by threatening the victim with a knife as he forced the defendant against the fence was not merely bumping into him. “In evaluating evidence that could yield contrary inferences, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence.” State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996). Moreover, “the absence of a specific demand for property, in and of itself, does not prevent a finding by the trier of fact [on] the element of intent . . . .” State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984).

B

The defendant also claims that the evidence was insufficient to support his conviction of carrying a dangerous weapon and attempt to commit robbery in the first degree. Specifically, the defendant claims that because the victim described the length of the defendant’s knife as “probably in the five to six inch range,” the evidence was insufficient to prove that the defendant either carried a dangerous weapon without a permit in violation of § 53-206 or threatened the use of a dangerous instrument as required for a conviction of attempt to commit robbery in violation of § 53a-134 (a) (3). We disagree.

Additional facts are necessary to our resolution of this claim. The victim testified that the defendant, as he pinned the victim against the fence, was holding a “fairly long” knife. The victim then testified that even though he could not say exactly how long the knife’s blade was, he thought “it was probably in the five to six inch range.” The knife was never introduced into evidence. Moreover, the defendant did not have apermit to carry a dangerous weapon.

“Any person who carries upon his person any . . . knife the edged portion of the blade of which is four inches or over in length . . . unless such person has been granted a written permit issued and signed by the first selectman of a town, the mayor or chief of police of a city or the warden of a borough, authorizing such person to carry such weapon or instrument within such town, city or borough, shall be fined not more than five hundred dollars or imprisoned not more than three years or both. . . .” General Statutes § 53-206 (a).

After construing the evidence in a light most favorable to sustaining the conviction, we conclude that the trial court reasonably could have concluded that the defendant was carrying a dangerous weapon without a permit in violation of § 53-206. Even though neither party introduced the knife into evidence, the victim testified that the length of the blade was probably five or six inches. We conclude that the victim’s testimony was sufficient to support the trial court’s conclusion that the defendant was carrying a dangerous weapon without a permit in violation of § 53-206.

Moreover, the defendant’s claim that the evidence was insufficient to prove that the knife was a dangerous instrument as required by § 53a-134 (a) (3) is without merit. General Statutes § 53a-3 (7) defines a dangerous instrument as “any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . .” The trial court could reasonably conclude that the knife used in this case was capable of causing death or serious physical injury. Accordingly, we conclude that the evidence was sufficient for the trial court to find that the defendant attempted to commit robbery in the first degree.

II

The defendant’s second claim is that the prosecutor committed misconduct during the course of his closing argument. Specifically, the defendant claims that the prosecutor’s closing argument “impermissibly burdened the defendant’s constitutional rights to require the state to meet its burden of proving him guilty beyond a reasonable doubt.” We disagree.

Additional facts are necessary for a proper resolution of this claim. During the trial, the defendant requested that he be permitted to leave the courtroom during the testimony of the arresting officers so that the officers could not identify him. The trial court denied the defendant’s request. After the state rested, the defendant rested without presenting any evidence. During the state’s closing argument, the prosecutor stated that “[t]he defendant has no burden, obviously, to prove anything. And counsel has made that abundantly clear. The defendant put the state to its proof, including the proof that the man seated in the courtroom was the man who was arrested, including the proof that the man in the courtroom was the person who was convicted back in 1990. That’s his prerogative. He’s done it. In my humble opinion, it would not have been done in front of a jury for the very reason that the jury in hearing a litany of wild defense claims being posed, a defendant trying a case to a jury would have realized what the backlash of that would be because what a juror would conclude is that with no defense to the charges, whether they’re in the criminal file or in the [violation of probation] file, the defense embarked through a series of obstacles in front of the state in an effort to see if they could trip them up, there being no true defense to the charges that we’re here on, either on the [violation of probation] or in the criminal offense. That’s how I saw it. I think the defense looks to Your Honor not to draw the same negative inference from it.”

The defendant failed to raise this claim at trial and now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “[T]o deprive a defendant of his constitutional right to a fair trial. . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . . [M]oreover . . . [Golding] review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial. . . . State v. Atkinson, 235 Conn. 748, 769, 670 A.2d 276 (1996).” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 356-57, 696 A.2d 944 (1997).

We will review the defendant’s second claim because the record is adequate for review and because the defendant’s claim of prosecutorial misconduct is of constitutional magnitude alleging the violation of a fundamental right. The record in this case, however, does not support a claim that the defendant was clearly deprived of a fair trial and, therefore, fails under the third prong of Golding. Here, the challenged statements merely described the defendant’s trial strategy. The prosecutor clearly stated that the defendant had the right to proceed as he did. Further, the defendant does not raise any other claims of prosecutorial misconduct. “We will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Villanueva, 44 Conn. App. 457, 461, 689 A.2d 1141, cert. denied, 240 Conn. 930, 693 A.2d 302 (1997).

Further, the prosecutor’s comments were directed to the court, not to a jury. “While this fact alone would not excuse an egregious violation of the rule, it is properly taken into consideration as part of the context in which it is made. An indirect comment in argument to the court on a point of law is less serious than a comment in jury summation that asks the jury to infer that the defendant’s silence is evidence of guilt. See United States v. Robinson, 485 U.S. 25, 108 S. Ct. 864, 99 L. Ed. 2d 23 (1989).” State v. Cobb, 27 Conn. App. 601, 607, 605 A.2d 1385 (1992).

Ill

The defendant’s third claim is that the trial court improperly failed to recuse itself. Specifically, the defendant claims that because the trial court referred to him as a “marauder” shortly after sentencing, it exhibited a personal bias against the defendant and should have recused itself from the case. The defendant’s claim is without merit.

The following facts are necessary to our resolution of this claim. During the sentencing hearing, the state remarked to the trial court that the defendant, in 1990, committed four armed robberies for which he received a six year sentence. The state then stated that as soon as the defendant finished serving those six years, he committed the crimes against the victim here in violation of the terms of his probation. The trial court then sentenced the defendant to a term of twelve years to be served consecutively with a six year sentence for violating his probation. The trial court explained that “ [t]he reason the sentences were imposed to that magnitude . . . [is] that it is time that the citizens of New Haven and society in general are protected from marauders like [the defendant]. That’s what he is.” The defendant immediately objected, moving the trial court to disqualify itself because it had “already imposed sentence and then to add a dig on him that he’s a marauder . . . shows a bias and prejudice . . . and we should reopen the sentencing and have it heard by some other judge.” The trial court denied the defendant’s motion.

Practice Book § 1-22, formerly § 996, provides in relevant part that “[a] judicial authority shall, upon motion of either party or upon its own motion, be disqualified from acting in a matter if such judicial authority is disqualified from acting therein pursuant to Canon 3 (c) of the Code of Judicial Conduct or because the judicial authority previously tried the same matter and a new trial was granted therein or because the judgment was reversed on appeal. . . .”

“Accusations of judicial bias or misconduct implicate the basic concepts of a fair trial. . . . The appearance as well as the actuality of [partiality] on the part of the trier will suffice to constitute proof of bias sufficient to warrant disqualification. . . . Canon 3 (c) (1) provides in relevant part: A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party . . . .” (Citation omitted; internal quotation marks omitted.) State v. Montini, 52 Conn. App. 682, 694, 730 A.2d 76, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999).

“To prevail on [his] claim of a violation of this canon, the [defendant] need not show actual bias. The [defendant] has met [his] burden if [he] can prove that the conduct in question gave rise to a reasonable appearance of impropriety. We use an objective rather than a subjective standard in deciding whether there has been a violation of canon 3 (c) (1). Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification. Thus, an impropriety or the appearance of impropriety . . . that would reasonably lead one to question the judge’s impartiality in a given proceeding clearly falls within the scope of the general standard .... The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his . . . impartiality, on the basis of all of the circumstances.” (Internal quotation marks omitted.) Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 819-20, 717 A.2d 1232 (1998).

We conclude that the trial court’s use of the word “marauder” to describe the defendant could not lead a reasonable person to question the court’s impartiality. The trial court merely used the term marauder to describe the defendant as a person who was involved with small scale attacks. The defendant does not provide any evidence in support of his bare assertions of bias. “It is a fundamental principle that to demonstrate bias sufficient to support a claim of judicial disqualification, the due administration of justice requires that such a demonstration be based on more than opinion or conclusion.” (Internal quotation marks omitted.) State v. Montini, supra, 52 Conn. App. 695-96.

Finally, the defendant’s claim that the trial court demonstrated its bias toward him “because he was treated unfairly throughout the trial as shown by the questionable adverse rulings by the judge” is without merit. “[T]he alleged bias and prejudice, to be disqualifying, must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” (Internal quotation marks omitted.) Id., 696. Accordingly, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion for recusal.

IV

The defendant’s fourth claim is that the trial court improperly granted the state’s motion for a fingerprint examination of the defendant while at the same time denying the defendant’s motion for an eye examination of the victim. This claim is without merit.

The following additional facts are necessary for a proper resolution of this claim. On the first day of trial, the state called Officer Brian Donnelly to prove, inter alia, that the defendant was the person that he had arrested after the crimes were reported. Before Donnelly took the stand to testify, however, the defendant requested that the trial court permit him to leave the courtroom so that Donnelly could not identify him as the person that he arrested. In response, the state filed a motion to obtain nontestimonial evidence pursuant to Practice Book § 776, now § 40-32, to take the defendant’s fingerprints. The defendant objected to the state’s motion and further argued that the victim should submit to an eye examination. The defendant argued that if the trial court were to grant the state’s motion then it would have a duty to grant the defendant’s motion “in order to avoid a double standard.” The defendant, during his cross-examination of the victim, however, never asked him any questions regarding his eyesight. The trial court granted the state’s motion and denied the defendant’s motion. In granting the state’s motion, the trial court stated that there was good cause to grant it because the issue of whether the defendant was the person arrested was unforeseen, and the fingerprint evidence was therefore material in determining whether the defendant committed the offenses. In denying the defendant’s motion, the trial court concluded that there was no evidence presented that the victim had a vision problem and, therefore, an eye examination was unnecessary.

The defendant claims that the trial court should have denied the state’s motion because it was a pretrial discovery request under Practice Book §§ 40-34 and 41-3, formerly §§ 778 and 809, that was not made within ten days after the first pretrial conference. See Practice Book § 41-5, formerly § 811. We conclude, however, that the state sufficiently showed that there was good cause to grant its untimely motion because the defendant was attempting to prevent the state from identifying him. See Practice Book § 41-4, formerly § 810; cf. State v. Synakorn, 239 Conn. 427, 434, 685 A.2d 1123 (1996).

“[Practice Book §] 776 [now § 40-32] authorizes a reasonably conducted procedure to obtain nontestimonial evidence if the judicial authority finds probable cause to believe that the evidence may be of material aid in determining whether the defendant committed the offense charged and that the evidence cannot practicably be obtained from other sources. Practice Book § 778 (7) [now § 40-34 (7)] specifically authorizes ‘reasonable body surface examinations’ as part of a procedure to obtain nontestimonial evidence.” State v. Skipper, 228 Conn. 610, 628, 673 A.2d 1101 (1994). The trial court concluded that the fingerprint evidence would be a material aid in determining whether the defendant committed the charged offense and that such evidence could not practicably be obtained from other sources. Accordingly, we cannot conclude that the trial court abused its discretion by ordering, pursuant to Practice Book § 40-32 et seq., that the defendant have his fingerprints taken.

The defendant also claims that because “the defendant’s motion and the state’s motion were similar, and since the defendant’s motion stated that both motions should be treated evenhandedly, the court by granting the state’s motion and denying the defendant’s motion,” violated a number of his constitutional rights. The defendant fails to provide any authority to support his claim. “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. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citations omitted; internal quotation marks omitted.) Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996). We conclude, therefore, that the trial court properly ruled on each motion individually and was not under any duty to grant the defendant’s motion merely because the court granted the state’s motion. Accordingly, the trial court did not abuse its discretion in denying the defendant’s motion.

V

The defendant next claims that the trial court abused its discretion by forcing him “to sit at the defense table and be subjected to suggestive one-on-one identifications.” This claim is without merit.

During it’s case-in-chief, the state called two police officers to identify the defendant as the man they arrested after the crimes were committed. Before each officer testified, however, the defendant requested that he either be permitted to (1) leave the courtroom when the officers were called to testify, (2) face backward when they testified, (3) wear a bag over his head when they testified or (4) sit elsewhere in the courtroom when they testified. The trial court denied each of these requests.

“[T]he manner in which in-court identifications are conducted is not of constitutional magnitude but rests within the sound discretion of the trial court. ... In such cases, the defendant’s protection against the obvious suggestiveness in any courtroom identification confrontation is his right to cross-examination ... or other practical procedures designed to lessen the degree of suggestiveness.” (Citations omitted; internal quotation marks omitted.) State v. Reddick, 224 Conn. 445, 470, 619 A.2d 453 (1993).

We conclude that the trial court did not abuse its discretion in denying the defendant’s requests. Requiring the defendant to sit at the defense table was not suggestive in any way. Further, the defendant had the opportunity to cross-examine each of the officers regarding their identifications of him.

VI

The defendant’s final claim is that the trial court improperly admitted hearsay. Specifically, the defendant claims that the trial court improperly admitted under the business records exception to the hearsay rule (1) a computer printout and (2) a photograph of the defendant. The defendant’s claims are without merit.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Rogers, 38 Conn. App. 777, 796, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996).

“An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies.” State v. Hines, 243 Conn. 796, 803, 709 A.2d 522 (1998). “General Statutes § 52-180 requires that evidence proffered under the business records exception to the hearsay rule satisfy three requirements: (1) that the record was made in the regular course of business; (2) that it was the regular course of the business to make the writing; and (3) that the writing was made at the time of the transaction or occurrence or within a reasonable time thereafter.” (Internal quotation marks omitted.) State v. Scott, 31 Conn. App. 660, 665, 626 A.2d 817 (1993). “The trial court is given discretion under General Statutes § 52-180 (a) to determine whether the criteria of the statute have been satisfied and, in reviewing the decision of the trial court to admit the evidence, an appellate court should construe the statute liberally.” (Internal quotation marks omitted.) Id.

A

The defendant claims that the trial court improperly admitted a computer printout under the business records exception to the hearsay rule because the witness could not identify the person who entered the data to produce the printout and could not identify the time when the entries were made.

The state introduced the clothes that the defendant was wearing at the time of the incident through Aaron Hazelwood, a correction officer at the New Haven Correctional Center. Hazelwood testified that as soon as an inmate is brought to the prison, he is issued prison clothes. The inmate’s original clothing is inventoried, put into a garment bag and is locked up in a “property room.” Hazelwood then testified that he researched the prison records to determine that the defendant was admitted to the prison on August 19, 1996. The state presented Hazelwood with a computer printout indicating that the defendant was admitted to the prison on August 19, 1996. Hazelwood testified that the printout was made in the regular course of business, that it was the regular course of business to make the writing and that the writing was made at the time of the occurrence. Hazelwood then testified that an intake counselor is responsible for making the entries to create the computer printout indicating when the inmates are admitted. Hazelwood stated that he could not identify which intake counselor entered the defendant’s information, but that it was an everyday practice for an intake counselor to make the entries. Hazelwood, however, did not have actual knowledge that the entries here were made by an intake counselor. Further, Hazelwood admitted that he did not know exactly when the entries were made.

We conclude that even though Hazelwood could not identify the person who prepared the printout and could not identify when the printout was made, the trial court did not abuse its discretion in admitting the printout as a business record. Hazelwood testified that an intake counselor would prepare this type of printout every day. Even though Hazelwood did not know who the intake counselor was that day, “General Statutes § 52-180 (b) (1) provides that the failure to produce the person who has personal knowledge of the event recorded will not affect the admissibility of a document, although that failure may affect the weight to be accorded to it.” (Internal quotation marks omitted.) State v. Scott, supra, 31 Conn. App. 666. Thus, it is of no moment that Hazelwood was not the person who created the printout and did not have personal knowledge of the person who actually created the document.

Moreover, the defendant claims that the state failed to prove that the printout was made at the time that the defendant was admitted to the prison. We conclude, however, that the trial court reasonably could have found that the printout was made contemporaneously with the defendant’s admittance to the prison. “[T]he inability of [the witness] to testify as to the exact date and time when a report was filled out does not render the report inadmissible. We have held that the statute should be liberally interpreted. ... In part, this is due to the fact that the statute recognizes that the trustworthiness of such documents comes from their being used for business and not for litigation. ... In light of this principle, if it can be demonstrated . . . that it was the regular business practice to file reports within a reasonable time after the incident itself, this is sufficient to assure that the report was made at a time when the incident was fresh in the author’s mind.” (Citations omitted.) Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 388-89, 461 A.2d 422 (1983). We conclude, therefore, that the trial court did not abuse its discretion in admitting the printout under the business records exception to the hearsay rule.

B

The defendant also claims that the trial court abused its discretion by admitting a photograph of the defendant under the business records exception.

The state called Sergeant Joyce Illingworth to testify that the arrest records of the New Haven police department are maintained by the department in the regular course of business and are made by the officers within the department at or about the time that the person is arrested. One of the records brought by Illingworth to trial was a computerized photograph of the defendant. Illingworth explained that the department took the photograph as part of the booking process. Illingworth searched the defendant’s computerized records and determined that the photograph was the defendant’s arrest photograph of August 16, 1996. The trial court, under the business records exception, admitted the photograph over the defendant’s objection that there was no evidence of who took the photograph or of when the photograph was taken.

Illingworth testified that Marie Mancini, a record clerk under her supervision, took the photograph on August 16, 1996, at 5:35 p.m. Further, Illingworth testified that the photograph was taken as part of the booking process. The trial court reasonably could have inferred that the photograph was taken at the time the defendant was ar rested and booked on August 16, 1996. Accordingly, we conclude that the trial court did not abuse its discretion in admitting the photograph as a business record under § 52-180.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant also claims that the trial court improperly concluded that he violated his probation. In light of our conclusion that the trial court properly found the defendant guilty beyond a reasonable doubt on all of the charges, we conclude that the trial court properly found that the defendant violated his probation under the lower burden of proof required in a probation revocation proceeding. See State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994) (holding that state has burden of establishing violation of probation by fair preponderance of evidence).

       Robbery and larceny require the perpetrator to have the same level of intent. Robbery in the first degree under § 53a-134 (a) (3) requires a defendant to commit a robbery while threatening the use of a dangerous instrument. “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” (Emphasis added.) General Statutes § 53a-133.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument. . . .’’“Dangerous instrument” is defined as “any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . .” General Statutes § 53a-3 (7).

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


text:
    IN RE NATALIA G.

    (AC 18756)
    Landau, Spear and Hennessy, Js.
    Argued March 15
    officially released September 14, 1999

      Scott Allan Sandler, for the appellant (respondent father).

      Paula D. Sullivan, 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

HENNESSY, J.

This is an appeal by the respondent father from the judgment of the trial court terminating his parental rights with respect to his daughter, Natalia G., pursuant to General Statutes (Rev. to 1997) § 17a-112. On appeal, the respondent claims that the trial court improperly (1) found that the department of children and families (department) made reasonable efforts to reunify the respondent with Natalia, (2) found that the respondent had failed to achieve personal rehabilitation within the meaning of General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B), and (3) made mandatory findings, pursuant to General Statutes (Rev. to 1997) § 17a-112 (e), now § 17a-112 (d), that were factually incorrect and legally unsupported. We affirm the judgment of the trial court.

The following facts are relevant to our disposition of this appeal. Natalia was bom on August 4, 1994. On October 23, 1996, she was removed from the care of her parents and placed in the care of the department under an order of temporary custody. On March 7,1997, having been found to be a neglected child, Natalia was committed to the department for a period of up to twelve months. The commitment to the department was later extended on January 14, 1998. Thereafter, a petition to terminate the parental rights of both parents was filed on March 11,1998, and was granted on July 22, 1998, on the statutory ground of failure to rehabilitate. It is from this judgment that the respondent appeals.

I

The respondent first claims that the trial court improperly found that the department made reasonable efforts to reunify him with Natalia. Specifically, the respondent claims that because he was twenty-two years of age and drug-dependent, and without appropriate and meaningful assistance, he could not have hoped to meet the court expectations or to take advantage of related department services. We disagree.

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Marvin M., 48 Conn. App. 563, 577-78, 711 A.2d 756, cert. denied, 245 Conn. 916, 719 A.2d 900 (1998).

General Statutes (Rev. to 1997) § 17a-112 (e) requires in relevant part that the trial court “consider and shall make written findings regarding: (1) [t]he timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent . . . .” In its memorandum of decision, the trial court found that “[appropriate and timely services were provided by the department, including substance abuse and individual counseling, transportation assistance and visitation coordination . . . [and] that the [department] made reasonable efforts to reunify the family, given the situation and circumstances, as far as possible.”

Our review of the record shows that from the time the child was placed in the care of the department in October, 1996, until February, 1997, the department was not aware of the respondent’s whereabouts, despite the fact that the trial court had ordered the respondent to keep the department apprised of his address. During March, 1997, the respondent failed to keep three successive appointments with Catholic Family Services, arranged by the department, for the assessment and treatment of his drag problem. Thereafter, in April, the respondent missed a portion of a court-ordered psychological evaluation that assessed parent-child interaction. In June, during an evaluation by Catholic Family Services to develop an appropriate course of action for his substance abuse, the respondent tested positive at the highest level for cocaine and heroin. In response to the positive drag test, Catholic Family Services informed the respondent that he needed inpatient treatment, that it would refer him to such a program and advised him to contact Blue Hills Hospital for intensive treatment. In the following months until October, 1997, however, the respondent made no effort to contact Catholic Family Services or the department in order to participate in any program. Furthermore, during this same period, the respondent did not inquire about or visit his daughter.

We cannot conclude, as the respondent urges, that the department is at fault for not finding a way to force him to accept treatment and to visit his daughter. After a review of the record and briefs, we cannot say that the finding of the trial court that the department made reasonable efforts to reunify the respondent with his daughter was not legally correct or factually supported.

II

The respondent next claims that the trial court improperly found that he failed to achieve sufficient personal rehabilitation within the meaning of General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B). We disagree.

“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. . . . Our Supreme Court has held that General Statutes (Rev. to 1989) § 17-43a (b) (2) [the predecessor to § 17a-112] 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)] that the evidence is clear and convincing that the parent has not rehabilitated [himself] 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. . . . In re Christina V., 38 Conn. App. 214, 220-21, 660 A.2d 863 (1995).” (Internal quotation marks omitted.) In re Marvin M., supra, 48 Conn. App. 578.

The trial court found by clear and convincing evidence that the child previously had been adjudicated neglected and uncared for on March 7, 1996, and that since that date, the respondent had failed to achieve such degree of rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, he could assume a responsible position in her life. The court found that this situation had existed for more than one year.

On October 23,1996, Natalia, who was then two years of age, was found with her parents living in an unoccupied, boarded up, burned out funeral home. After being taken to a hospital, the child was placed in the custody of the department and has been in a foster home ever since.

The respondent readily admits that he is in need of treatment for his drug addiction, and that his age and immaturity contributed to his inability to meet the expectations of the trial court that he pursue a lifestyle that would enable him to take custody of his daughter. He claims, however, that he never was given the opportunity to do so in the absence of offers of appropriate and timely service, and it therefore is mere conjecture to find that he would not have achieved a certain degree of personal rehabilitation had such offers been made. The facts, however, indicate otherwise.

The respondent, because of drug-related problems, spent time in jail, which made him unavailable to visit his daughter, and unavailable to Catholic Family Services and the department. When he was not in jail, his drug addiction prevented him from regularly keeping appointments for visitation with his daughter and with those who were attempting to address his drug problem. The respondent also failed to meet the expectations set by the trial court in connection with the neglect adjudication. Moreover, he has failed to make this court aware of the methods that he believes the department should have used to provide appropriate programs for him, when he did not make the department aware of his whereabouts or appear for appointments as required. For the forgoing reasons, we cannot conclude that the trial court’s determination that the respondent has failed to achieve rehabilitation was clearly erroneous.

Ill

The respondent claims finally that the trial court’s findings as required by General Statutes (Rev. to 1997) § 17a-112 (e) were not legally correct or factually supported. The respondent maintains that the failure of the department to provide him with adequate drug counseling and programs was the reason underlying his inability to meet the expectations of the court and the cause of his having missed appointments to visit his daughter and meet with Catholic Family Services and the department. He argues that if the department had placed him in an inpatient drug program, the trial court would not have been able to make the findings it did. We cannot fault the department for not being able to deliver services to the respondent when he failed to inform the department of his whereabouts and failed to appear for appointments as required by the trial court. Furthermore, it is not the department’s responsibility forcibly to commit the respondent to an inpatient drug treatment program, nor does it have the ability or authority to do so, which appears to be what he is claiming the department should have done. We therefore conclude that the trial court’s findings were legally correct and supported by the record as required by the statute.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court terminated the parental rights of both the respondent mother and the respondent father. The respondent mother has not appealed from that decision. We refer in this opinion to the respondent father as the respondent.

       General Statutes (Rev. to 1997) § 17a-112 provides in relevant part: “(c) The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence ... (2) that termination is in the best interest of the child, and (3) that . . . (B) the parent of a child who has been found by the Superior Court to have been neglected or uncared for in aprior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       Both agencies were unaware of his incarceration. In addition, the respondent was in jail at the time the petition for termination of parental rights was filed.

       General Statutes (Rev. to 1997) § 17a-112 (e) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to acljust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”