text:
    STATE OF CONNECTICUT v. JOHN GAUTHIER
    (AC 21934)
    Flynn, Bishop and West, Js.

      Argued September 9 —
    officially released December 3, 2002

      Deborah G. Stevenson, special public defender, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Thomas R. Garcia, assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, John Gauthier, appeals from the judgments of the trial court revoking his probation and imposing a ten year term of incarceration. The defendant claims that (1) the evidence was insufficient to support a finding that he had violated the conditions of his probation, (2) the court improperly combined the criminal trial and the revocation of probation hearing into a single proceeding, (3) the court evinced bias during the dispositional phase of the hearing in such a manner as to violate his constitutional right to an allocution in his defense, (4) the court’s consideration of the violation of probation charge following his acquittal violated the constitutional prohibition against double jeopardy and was precluded by the principle of collateral estoppel. We affirm the judgments of the trial court.

The court reasonably could have found the following facts. On December 5, 1997, the defendant was convicted, following a jury trial, of one count each of arson in the third degree in violation of General Statutes § 53a-113 (a), conspiracy to commit arson in the third degree in violation of General Statutes §§ 53a-48 and 53a-113 (a), arson in the first degree in violation of General Statutes § 53a-lll (a) (1) and conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a-48 and 53a-lll (a) (1). The defendant was sentenced to a total effective term of fifteen years incarceration, execution suspended after two years, with five years of probation. On September 30, 1998, the defendant was released from the custody of the department of correction and began his term of probation.

On August 6, 1999, the defendant was drinking with several friends at the 4-Play bar in Newington. Among the individuals with whom the defendant was socializing were Denise London, Chris Drwiega, David Romeiko and Romeiko’s girlfriend, Meghan Dicioccio. Wojciech Budrewicz also was patronizing the bar that evening. Budrewicz approached the defendant’s group and the parties fell into a dispute, which resulted in a short-lived but vigorous brawl during which Budrewicz got the better of Romeiko.

The defendant and Romeiko decided to go to Budrewicz’s home to seek revenge for Romeiko’s beating during the bar fight. The defendant’s group, traveling in several cars, stopped at a Shell gasoline station, where either Romeiko or the defendant purchased two glass bottles of juice. After emptying the original contents of those bottles, the defendant filled them with gasoline. The group then proceeded to Budrewicz’s house. Romeiko and the defendant then each threw one of the lighted gasoline filled bottles at Budrewicz’s home, in which Budrewicz, his sister and their parents were sleeping. Although all four of the occupants managed to escape the resulting inferno, the house was consumed within minutes.

On August 7, 1999, the defendant was arrested and charged with arson in the first degree in violation of § 53a-lll (a) (1), attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, conspiracy to commit arson in the first degree in violation of §§ 53a-48 (a) and 53a-lll (a) (1), and illegal bomb manufacturing in violation of General Statutes § 53-80a. On September 20, 1999, the defendant was charged separately with violations of probation pursuant to General Statutes § 53a-32. The criminal charges and the violation of probation charges all arose from the same underlying activity.

From May 24, 2000, through June 7, 2000, the court conducted a combined trial and probation revocation hearing. The jury acquitted the defendant on all four of the criminal charges. On June 13, 2000, following the conclusion of the criminal trial, and in the absence of the jury, the court heard additional testimony and evidence regarding the alleged violations of probation.

On April 6, 2001, the court found that the defendant had violated the terms of his probation and sentenced him to a total effective sentence of ten years with probation for four years. This appeal followed.

I

We first address the defendant’s claim that the evidence was insufficient to support the finding that he had violated the terms and conditions of his parole.

“To support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. ... In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling . . . .” (Internal quotation marks omitted.) State v. Jones, 55 Conn. App. 243, 247, 739 A.2d 697 (1999), cert. denied, 253 Conn. 922, 754 A.2d 798 (2000).

The record shows that sufficient evidence was presented to support the court’s finding. The court, in its capacity as the trier of fact for the purpose of the violation of probation hearing, was not bound by the factual findings of the jury in the criminal case. The judge was entitled to weigh independently the credibility of the witnesses who testified and to come to a different conclusion regarding their credibility from that of the jury. Dicioccio testified that she saw the defendant and Romeiko each walk out of the Shell station carrying a Snapple bottle. Drwiega testified that he saw a Snapple bottle in the defendant’s hand at the Shell station. Dicioccio testified that she saw the defendant and Romeiko dump the contents of the bottles out and that she saw the defendant refill those bottles with gasoline. Both Dicioccio and Drwiega testified that they saw the defendant tearing up a sheet that was in the trunk of his car while at the Shell station. The testimony indicated that the defendant not only drove his car to Budrewicz’s house voluntarily, but that he also threatened Dicioccio to obtain directions. Dicioccio further testified that she observed the defendant and Romeiko each throw one of the lighted bottles at Budrewicz’s house. Drwiega testified that in the immediate aftermath of the firebombing, the defendant exclaimed, “Molotov cocktail. We took care of it.” In the statement that he gave to the police following his arrest, the defendant could not completely deny his culpability for the arson. In that statement, the defendant claimed that due to the vast quantity of alcohol that he had consumed during the evening in question, he could not recall who threw the second bottle. He conceded, however, that it may have been him.

The defendant challenges the reliability of Diweiga and Dicioccio’s testimony. Specifically, he argues that the credibility of their testimony is suspect because it conflicts with other testimony presented during the proceedings. The defendant also claims that any reliance on Dicioccio’s testimony was improper because her credibility as an eyewitness was suspect given the conditions under which she claimed to have witnessed the defendant throw the incendiary device at Budrewicz’s house and the fact that she had been charged with perjury in the criminal trial against Romeiko.

“[E]vidence is not insufficient . . . because it is conflicting or inconsistent. [The fact finder] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [fact finder’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [fact finder] can . . . decide what — all, none, or some — of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Colon, 71 Conn. App. 217, 224-25, 800 A.2d 1268, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002).

The court was well aware of the factors raised by the defendant that would diminish the credibility of the witnesses. As the sole finder of fact in the probation revocation proceeding, however, the court was entitled to arrive at its own conclusion regarding the witnesses’ credibility and what weight to afford their testimony. The court concluded that the testimony of the witnesses established that it was more probable than not that the defendant had violated the terms and conditions of his probation. Having reviewed the record, we conclude that that conclusion was not clearly erroneous.

II

The defendant next claims that the court improperly combined the criminal trial and the revocation of probation hearing into a single proceeding. The defendant seeks review of his claim pursuant to either State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine.

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.) Id. The defendant fails to satisfy the third prong of Golding, namely, that a constitutional violation clearly exists and clearly deprived him of a fair trial. Likewise, we conclude that the court did not commit plain error.

The defendant argues that he was prejudiced by the joinder of the criminal trial and the probation revocation hearing because each of the proceedings is governed by a different standard of proof. The essence of his claim is that by combining the criminal trial and the probation revocation hearing, the defendant was placed in the difficult position of having to mount a defense in two dissimilar ways concurrently. The defendant claims that such a circumstance violates his due process rights under the United States constitution.

“Probation revocation proceedings fall within the protections guaranteed by the due process clause of the fourteenth amendment to the federal constitution. . . . That clause provides in relevant part: ‘[N]or shall any State deprive any person of life, liberty or property, without due process of law . . . .’ U.S. Const., amend. XIV, § 1. Probation itself is a conditional liberty and a privilege that, once granted, is a constitutionally protected interest. . . . The revocation proceeding must comport with the basic requirements of due process because termination of that privilege results in a loss of liberty.” State v. Faraday, 69 Conn. App. 421, 424, 794 A.2d 1098, cert. granted on other grounds, 261 Conn. 915, 806 A.2d 1055 (2002). “[T]he minimum due process requirements for revocation of [probation] include written notice of the claimed [probation] violation, disclosure to the [probationer] of the evidence against him, the opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and cross-examine adverse witnesses in most instances, a neutral hearing body, and a written statement as to the evidence for and reasons for [probation] violation.” State v. Baxter, 19 Conn. App, 304, 311, 563 A.2d 721 (1989). Despite that panoply of requirements, a probation revocation hearing does not require all of the procedural components associated with an adversarial criminal proceeding. State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994).

The fact that the jury acquitted the defendant on the criminal charges belies his contention that his defense was compromised as a result of the combined proceeding. As for the claim that the procedural integrity of the probation hearing was flawed, the record indicates that the proceedings satisfied the requirements of due process. During the combined proceeding, the court scrupulously maintained a separation of its judicial role in the criminal trial and its fact-finding role in the probation hearing. The court also provided both parties with the opportunity to present additional witnesses and evidence following the close of the criminal trial. Presumably, that opportunity was provided precisely for the purpose of allowing the parties to present evidence that either was not relevant or was not appropriate for the jury’s consideration in the criminal trial. Both parties took advantage of that opportunity and called additional witnesses.

We conclude that the defendant has failed to establish any violation of due process.

III

The defendant also claims that the court was biased during the dispositional phase of the violation of probation hearing. The substance of his claim is that the court improperly restricted his constitutional right of allocution during sentencing. We disagree.

As presented in the defendant’s brief, the claim of judicial bias is predicated on the conduct of the court regarding the defendant’s allocution during sentencing. The defendant seeks review of his claim pursuant to State v. Golding, supra, 213 Conn. 239-40. We note that appellate review of a claim of judicial bias in a probation revocation hearing is limited to the plain error doctrine. State v. Strickland, 42 Conn. App. 768, 776, 682 A.2d 521 (1996), rev’d on other grounds, 243 Conn. 339, 703 A.2d 109 (1997). “It is well settled that courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court through a motion for disqualification .... Absent plain error, a claim of judicial bias cannot be reviewed on appeal unless preserved in the trial court. ... To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Citations omitted; internal quotation marks omitted.) State v. McDuffie, 51 Conn. App. 210, 216-17, 721 A.2d 142 (1998), cert. denied, 247 Conn. 958, 723 A.2d 814 (1999).

A defendant has the right to address the court at the time of sentencing in the dispositional phase of a probation revocation hearing. State v. Strickland, 243 Conn. 339, 703 A.2d 109 (1997). The defendant asserts that the court did not provide him with a true opportunity for allocution because it allowed allocution only for the limited purpose of confession. The transcript of the dispositional phase of the hearing clearly indicates that the court provided the defendant with a full and fair opportunity to speak on his behalf.

Although it is clear that the court wanted the defendant to address the issue of his culpability, it did not restrict his allocution to that issue. On the contrary, the court invited the defendant to speak freely and openly. In response to defense counsel’s request for an allocution, the court responded, “He can speak as long as he wants. I would like to hear from [the defendant]. Anything he wants to say, but particularly about the events on the night four sleeping people had their house burned to the ground.” Thereupon, the defendant gave a statement concerning the salutary effect that the previous period of incarceration had had on him and his aspirations and plans for the future.

The defendant also claims that the court ended his allocution when it became apparent that he was not going to confess to the crimes of which he had been acquitted. The record, however, clearly indicates that the defendant said as much as he cared to during the allocution. The defendant spoke without any interruption from the court and ended his statement by formally thanking the court for its time.

Indeed, when the court, at the conclusion of the defendant’s statement, inquired of him whether he wanted to speak more directly about his participation in the arson, it was the defendant’s attorney who cautioned him about responding. Nevertheless, the defendant did make some additional brief remarks. On the basis of the record, we conclude that the defendant’s right to an allocution was not infringed in any way by the court. To the contrary, the defendant took full advantage of the opportunity to speak that was provided to him by the court. After careful review of the record, we conclude that the court’s conduct did not affect the fairness or integrity of the proceedings, nor did it result in manifest injustice to the defendant.

IV

The final claim raised by the defendant is that the court improperly considered his violation of probation after he had been acquitted. The defendant argues that by considering the violation of probation charge following his acquittal on the criminal charges, the court violated his constitutional right to be free of double jeopardy. In the alternative, the defendant argues that the principle of collateral estoppel should have preeluded the court from independently determining the issue of his liability for the charged conduct. We disagree with both of the defendant’s contentions.

The defendant correctly cites State v. Smith, 207 Conn. 152, 176-77, 540 A.2d 679 (1988), for the proposition that the doctrine of double jeopardy is not applicable to probation revocation proceedings because, in a revocation proceeding, the defendant is not exposed to criminal prosecution for the same offense following conviction or acquittal. Nevertheless, the defendant argues that this revocation proceeding should be considered criminal for double jeopardy purposes because the sentence was imposed as punishment for the criminal activity of which the defendant had been acquitted, rather than for the prior crimes for which he previously had been convicted. That is the same argument that was rejected by our Supreme Court in State v. McDowell, 242 Conn. 648, 652, 699 A.2d 987 (1997). In McDowell, the court unequivocally recognized that any punishment involved in a revocation proceeding is “attributable to the crime for which [the defendant] was originally convicted and sentenced, rather than to the charges on which the violation of probation is based.” (Internal quotation marks omitted.) Id., 653. The defendant has not offered any evidence to rebut that presumption. He does not argue, for instance, that the court increased his sentence beyond that to which he was exposed for violation of probation. The defendant’s claim, based as it is on mere conjecture and assertion, must, therefore, fail.

The defendant also makes the argument that his acquittal of the criminal charges should have collaterally estopped the court from considering that same conduct for the purpose of finding a violation of the terms of his probation. Such an argument is unavailing.

In addressing the relevance of collateral estoppel principles in the context of the different purposes of the criminal justice and probation systems, our Supreme Court has recognized that those differing purposes should bar the application of collateral estoppel even if its formal prerequisites have been met. Id., 656. Moreover, we have consistently expressed the conviction that the outcome of a criminal proceeding simply has no relevance whatsoever to an independent determination on the same facts made in a revocation of probation hearing. State v. Chambers, 61 Conn. App. 781, 790-91, 767 A.2d 1215, cert. denied, 256 Conn. 903, 772 A.2d 597 (2001).

In a criminal trial, the state must prove its case beyond a reasonable doubt. In a probation revocation hearing, by contrast, a violation of probation need only be shown by a preponderance of the evidence. The differing standards of proof relevant to those proceedings militate against application of collateral estoppel. In this case, the most that can be said regarding the jury verdict is that the jury found that the alleged criminal conduct had not been proven beyond a reasonable doubt. The jury had no occasion to consider whether the charged conduct had been proven by a preponderance of the evidence, the standard of proof applicable to a probation revocation hearing. Thus, contrary to the defendant’s argument, the factual issues had not been conclusively determined in a prior judicial proceeding for the purposes of the probation hearing.

The judgments are affirmed.

In this opinion the other judges concurred.

       There is substantial overlap between the issues presented within the various sections of the defendant’s brief. We have taken the liberty of organizing the claims raised by the defendant in his brief in a more discrete manner and address them accordingly.

       The relevance of that testimony relied on the clear implication that the ribbons of sheet supplied the wicks for the incendiary devices.

       A “Molotov cocktail” is defined as “a crude bomb made of a bottle filled with a flammable liquid (as gasoline) and usually fitted with a wick (as a saturated rag) that is ignited just before the bottle is hurled.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1999). The device is named after Vyacheslav Mikhaylovich Molotov (1890-1986), a Soviet statesman.

       Dicioccio stated that she witnessed the event in the rearview mirror of a car parked four houses away from Budrewicz’s house. She also stated that there was an oak tree, a fence and a speed limit sign in her field of vision.

       Pursuant to Practice Book § 60-5, “[t]he court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       Although the defendant also claims a violation of the constitution of Connecticut, he has not provided an independent analysis of his claim under our state constitution. We accordingly consider that claim abandoned. See Ramos v. Vernon, 254 Conn. 799, 815, 761 A.2d 705 (2000).

       In Strickland, the court found that the defendant had violated the conditions of his probation and sentenced him to serve the remainder of his sentence. During the sentencing, the defendant twice asked to be heard on his behalf, but the court denied him any opportunity to speak. State v. Strickland, supra, 243 Conn. 342-43.

       The defendant also characterizes the court action as “judicial nullification” of the jury verdict. That argument, however, is wholly without merit because the court’s judgment in the probation revocation proceeding had no effect whatsoever on the jury’s acquittal of the defendant on the criminal charges.


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    JOSEPH BENEDUCI v. CANDIDO A. VALADARES
    (AC 21950)
    Foti, Dranginis and Flynn, Js.
    Argued September 13 —
    officially released December 3, 2002

      William J. Ingersoll, for the appellant (plaintiff).

      David Fite Waters, for the appellee (defendant).
   Opinion

FLYNN, J.

The plaintiff, Joseph Beneduci, is the owner of property adjoining land of the defendant, Can-dido A. Valadares. A dispute arose between the parties regarding a common driveway, which passes over land owned by the plaintiff. The parties presented evidence to an attorney trial referee (referee) regarding the plaintiffs claims for injunctive relief and damages and the defendant’s counterclaim for damages. To determine the issues underlying this dispute, the referee was required to determine the extent of the defendant’s rights to use the right-of-way. The referee issued a report as to his findings and legal conclusions. Thereafter, the trial court rendered judgment on the referee’s report. In doing so, that court, inter alia, enjoined the defendant “from engaging in any activity on the large right-of-way beyond using it for ingress and egress to his property and . . . from . . . interfering with any activity of the plaintiff on the large right-of-way which does not affect the defendant’s use of the driveway for ingress and egress to his property.” The court further enjoined the defendant “from using the easterly portion of the small right-of-way and from interfering with [the] plaintiffs sign.” The plaintiff challenges four aspects of the judgment on the referee’s report: (1) the creation of a passing area in the right-of-way; (2) the authorization to the defendant to make certain improvements to the right-of-way; (3) the restriction on the plaintiff from removing vegetation near the right-of-way; and (4) the allocation of maintenance costs of the right-of-way. We affirm, in part, and reverse, in part, the judgment of the trial court.

The following facts, as set forth in the referee’s report, are relevant to our resolution of the plaintiffs appeal. “Sometime prior to 1946, a iight-of-way was created over certain property located on Styles Lane in Nor-walk, Connecticut (hereinafter the large right-of-way). That right-of-way is approximately 800 feet long, about twenty-four feet wide, and partially fronts on Styles Lane, a public thoroughfare. The large right-of-way was the only means of ingress and egress to a parcel of land of approximately four acres (the original parcel). In 1946, the original parcel was divided. In that year, a map was prepared by Samuel [W.] Hoyt, Jr. Co., Inc., entitled ‘Map of Property Prepared for [Hermine] Peterson at Norwalk, Conn.’ That map ... is filed with the Norwalk land records as Map No. 2350. The map reflects that the original parcel had been divided into (a) a one acre parcel with a residence which became 6 Styles Lane and was ultimately purchased by the defendant in 1995; and (b) an undeveloped three acre parcel which the plaintiff subsequently purchased, and which became 10 Styles Lane.

“The large right-of-way existed at the time of the division to service all of the original parcel. Map No. 2350 reflects that it was apparently granted in a deed previously filed at Volume 169-88 of the Norwalk land records. That deed is not in evidence. Therefore, the language of the original deed granting the large right-of-way that now services both 6 Styles Lane and 10 Styles Lane is not before the court.

“As part of the 1946 subdivision, a small right-of-way was created on the 10 Styles Lane parcel to connect the large right-of-way to 6 Styles Lane. It is [a] four sided piece of land, the shortest of which is twenty-nine feet long, and the longest not quite forty-seven feet. While Map No. 2350 reflects the dimensions and location of the small right-of-way, no deed was presented at trial that purported to reflect the language of the grant of that right-of-way. Combined, the two rights-of-way are the only means of ingress and egress for 6 Styles Road. Absent the deeds, there is no proof that the rights-of-way were for anything other than ingress and egress, which has been their traditional use, and I find that they did not include parking, landscaping or storing of logs.

“In a deed filed on October 21, 1970, in the Norwalk land records at Volume 737, Page 572, Helen Merrill and Anita Ross sold approximately three acres of undeveloped land to Marissa [Beneduci] and [the plaintiff] Joseph Beneduci, where a dwelling, 10 Styles Lane, was ultimately built. The deed conveying the land referred for its description to Map 1520, excepting the one acre premises described in Map 2350, which now belongs to the defendant. The deed purported to convey to Mr. and Mrs. [Beneduci] ‘a right of way from said premises to Styles Lane as shown on said maps,’ i.e., the large right-of-way. Accordingly, access to 10 Styles Lane was over the same large right-of-way as to 6 Styles Lane. However, it appears that Merrill and Ross were not the original grantors of the right-of-way, but rather successors to the original grantee. The deed also reflects that the land was conveyed free and clear of encumbrances except, inter alia, ‘a right of way at the extreme southerly portion of said premises as shown on the above Map No. 2350,’ i.e., the small right-of-way.

“In a warranty deed filed with the Norwalk land records on August 1, 1995, Sally Bochner and Jane Cogie, successor owners of 6 Styles Lane, conveyed those premises to defendant Candido Valadares, referring to Map No. 2350 for a full description of the property. Once again, Bochner and Cogie were successors in interest of the original grantees of the rights-of-way. The conveyance purported to be ‘Together with a right of way for all lawful purposes in, through, over and upon a small portion of the property of [Hermine] Peterson, bounding the above described premises [on the] southeast thereof and more particularly designated as “Right of way” on the aforesaid map, in common with [Her-mine] Peterson, her heirs and assigns and together with an easement of way, leading [from] Styles Lane to the southerly line of the first mentioned, “Right of way” herein, in common with [Hermine] Peterson, her heirs and assigns. Reference to said map is hereby made and had for a more particular description and location of said premises on the rights of way above mentioned.’ Accordingly, Bochner and Cogie were not granting a right-of-way to [the defendant] in the language of the deed, but rather conveying to him whatever rights of way they had previously acquired, the dimensions (but not the nature) of which were reflected in Map 2350.

“After purchasing his property, [the defendant] commenced activities on both the large right-of-way and the small right-of-way that [the plaintiff] objected to. Prior to 1995, the large right-of-way had been bordered by trees and vegetation, and used solely as a driveway. But [the defendant] removed trees, bushes and vegetation, created and used parking areas, and stored firewood on the sides of the driveway on the large right-of-way. He also built a wall with pillars, which narrowed the Styles Lane entrance to the large right-of-way.

“Prior to 1995, the eastern portion of the small right-of-way had been undisturbed, containing trees and vegetation. [The defendant] removed trees and vegetation from the eastern side of the small right-of-way, which historically had not been used for travel. The trees and vegetation did not interfere with its normal use. Over time, he unnecessarily expanded the use of the eastern side for travel and turnaround purposes, disturbed a sign [the plaintiff] had placed to indicate which was his residence and removed or destroyed boundary markers or fences installed by [the plaintiff] defining his property line. [The defendant] also created a parking space on a neighbor’s property, using a portion of the right-of-way to get to it.

“When it became known to both parties that ownership of the large right-of-way was in question, [the plaintiff] commenced proceedings in Norwalk Probate Court to have the apparent record owner of the large right-of-way declared dead and to have a contract for the purchase of the large right-of-way approved by the Probate Court. [The defendant] objected, and the property was put up for sale by sealed bid, with the plaintiff and the defendant [being] the only bidders. [The plaintiff] was the successful bidder and obtained] a deed.

“After [the plaintiff] became the title owner of the large right-of-way, he placed logs along the side of the driveway. [The defendant] removed objects placed by [the plaintiff] along the driveway to prevent parking. Finally, when snowplowing, [the defendant] removed some gravel.” (Emphasis in original.)

The plaintiff commenced the present action against the defendant and requested that the court, inter alia, enjoin the defendant from performing any act utilizing the right-of-way for any purpose other than ingress and egress. The defendant’s counterclaim contained no particular claims for relief. The matter was submitted to a referee who, after hearing the evidence and viewing the disputed property, found the facts previously set forth and reached certain conclusions of law. The court rendered judgment in accordance with the referee’s report, from which the plaintiff appeals. The defendant did not cross appeal.

We begin our analysis of the plaintiffs claims by setting forth our standard of review. “The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, 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.” Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992). We must also bear in mind the fact that the referee visited the disputed property. “A view of the subject matter in dispute may be taken by the court, in the exercise of a sound discretion, whenever it is necessary or important to a clearer understanding of the issues. . . . Information obtained through a visual observation of the locus in quo is just as much evidence as any other evidence in the case. . . . Evidence obtained by visual inspection is not subject to appellate review. . . . Conclusions based on such evidence are entitled to great weight on appeal . . . and are subject to review only for clear error.” (Citations omitted; internal quotation marks omitted.) Castonguay v. Plourde, 46 Conn. App. 251, 262, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997).

The plaintiffs first claim relates to the creation of a passing area in the right-of-way. The plaintiff argues that the referee’s conclusion was without legal authority. The plaintiff cites Wilson v. DeGenaro, 36 Conn. Sup. 200, 415 A.2d 1334 (1979), aff'd, 181 Conn. 480, 435 A.2d 1021 (1980), for the proposition that where a definite right-of-way exists, a court cannot give a party more than that party is entitled to receive. Wilson is inapposite, as are other similar cases dealing with the interpretation of a right-of-way granted in a deed, because the language of the original, pre-1946 deed that created the right-of-way was not presented in evidence by the plaintiff to the referee. In fact, the plaintiff apparently relied exclusively on later conveyances in the chain of title containing references to the “map of property prepared for [Hermine] Peterson” dated 1946. The best indication that we have of the location of the right-of-way is contained in the “map of property prepared for [Hermine] Peterson,” which states that the right-of-way was “granted in deed Vol. 169-88, Norwalk Land Records.” Beyond this reference, though, we have no indication of what is contained in that deed. By failing to offer any evidence of the metes and bounds of the right-of-way as set by that deed, “the plaintiff acted at his peril that the court would not make the more specific findings that he desired.” Kelley v. Tomas, 66 Conn. App. 146, 167 n.4, 783 A.2d 1226 (2001).

The referee was faced with a situation in which the parties agreed that a right-of-way existed across the plaintiffs property as shown on the “map of property prepared for [Hermine] Peterson,” but the parties did not agree to the extent of the usage the defendant might make of the right-of-way. Absent any evidence of the language of the deed creating the right-of-way, the referee correctly relied upon Pudim v. Moses, 20 Conn. Sup. 311, 134 A.2d 478 (1957), for the proposition that when an easement is not specifically defined, “the rule is that the easement be only such as is reasonably necessary and convenient for the purpose for which it was created.” Id., 313. In his analysis, the referee considered Strollo v. Iannantuoni, 53 Conn. App. 658, 734 A.2d 144, cert. denied, 250 Conn. 924, 738 A.2d 662 (1999). In Strollo, this court stated that “[t]he use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit. . . . The decision as to what would constitute a reasonable use of a right-of-way is for the trier of fact whose decision may not be overturned unless it is clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Id., 660-61.

The plaintiff did not ask the referee to interpret the language of the deed granting the right-of-way. In the absence of the deed, the plaintiff was asking the referee to make a factual determination as to what would constitute a reasonable use of the right-of-way. As such, we cannot overturn the court’s decision unless, based on the record, we conclude that the decision was clearly erroneous. See Somers v. LeVasseur, 230 Conn. 560, 564, 645 A.2d 993 (1994). The plaintiff, however, did not provide a transcript of the testimony before the referee to either the trial court or this court. We are also not in a position to review the referee’s visual inspection of the disputed property. See Castonguay v. Plourde, supra, 46 Conn. App. 262. The only indication of the testimony presented at trial is the referee’s findings of fact. On the basis of those findings, we cannot conclude that the court’s decision, as to the necessity of a passing area, was clearly erroneous.

The plaintiff also challenges the portion of the referee’s report that allows the defendant to make repairs or improvements. The plaintiff asserts that there was no evidence of any existing improvements and that the referee did not precisely limit the improvements the defendant was allowed to make. *8We disagree with both assertions. As to the first assertion, the referee’s report included the finding that “when snowplowing, [the defendant] removed some gravel.” In addition, one or both of the parties entered photographs as evidence of the condition of the right-of-way. These photographs show a gravel driveway, not a dirt driveway without any improvements as the plaintiff’s argument suggests. The plaintiffs second assertion, that the referee did not limit the improvements that the defendant may make, is also unsupported by the record. The referee’s report clearly describes two improvements the defendant may make: installing traprock to a depth of 2.5 inches and grading the right-of-way. The remainder of the referee’s conclusions enjoined the defendant from engaging in any activity on the right-of-way beyond using it for ingress and egress to his property and making the improvements previously set forth.

The third claim is the plaintiffs challenge to that portion of the referee’s report restricting the plaintiff from removing vegetation near the right-of-way. The referee, in his conclusions of law, stated: “Neither party may remove vegetation, shrubbery, weeds, vines or trees except to the extent they are within the nine to eleven foot right-of-way. ...” In adopting the referee’s report, the court made this a part of its judgment. In analyzing the plaintiffs third claim, we must address a jurisdictional issue raised by the referee’s conclusion.

We note that even though the issue of jurisdiction was not argued by either party, a court has the authority to consider this issue sua sponte. “[Our Supreme Court] has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time. . . . [T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. . . . Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent.” (Citations omitted; internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002).

“The determination of whether subject matter jurisdiction exists is a question of law and, thus, our review is plenary.” Hultman v. Blumenthal, 67 Conn. App. 613, 615, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002). “Jurisdiction is the power in a court to hear and determine the cause of action presented to it. . . . To constitute this there are three essentials: first, the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper parties must be present; and third, the point decided must be, in substance and effect, within the issue.” (Citation omitted; internal quotation marks omitted.) Lobsenz v. Davidoff, 182 Conn. 111, 116, 438 A.2d 21 (1980). We note that the defendant in his counterclaim did not request that the referee impose this restriction upon the plaintiff. Apparently, the issue of whether the plaintiff should be restricted from removing vegetation on his property was never raised in the pleadings. For that reason, we must reverse the trial court’s decision as to that part of the referee’s report because the court lacked jurisdiction as to this issue.

The plaintiffs final claim pertains to the allocation of maintenance costs of the right-of-way. The referee’s report states in pertinent part: “The cost of removing any obstructions or materials not in accordance with this opinion should be borne by the parties that placed them. Thereafter, since both parties use the driveway, any routine maintenance of the right-of-way in its current state, as modified by this decision, should be shared equally between the parties, or their respective heirs, successors and assigns.” The plaintiff cites Center Drive-In Theatre, Inc. v. Derby, 166 Conn. 460, 352 A.2d 304 (1974), which sets forth the general rule that “[w]here the instrument is silent, the owner of an easement has a duty to make such repairs as are necessary for the owner of the land to have the reasonable use of his estate.” Id., 464. This general rule, however, has been applied to situations where the easement benefits only the dominant estate. See, e.g., id., 460 (city owning easement for pipeline under servient estate); Powers v. Grenier Construction, Inc., 10 Conn. App. 556, 524 A.2d 667 (1987) (holding owner of easement for drainage purposes liable for flooding caused by failure to repair). We must now determine whether this rule applies with equal force in a situation such as the present one where both the dominant and the servient estates derive the same benefit from the common use of a driveway. We conclude that it does not.

The plaintiff only recently became the owner of the servient estate over which the common driveway passes. Prior to the plaintiffs purchasing the servient estate, he had an easement over the disputed driveway just as the defendant did. At that time, the general rule set forth in Center Drive-In Theatre, Inc. v. Derby, supra, 166 Conn. 464, would have required both the plaintiff and the defendant to contribute jointly to the costs for repair and maintenance of the right-of-way that served both their parcels. The former owner of the servient estate, not using the property for the purpose authorized by the easement, was under no obligation to contribute to the maintenance of the right-of-way. Kelly v. Ivler, 187 Conn. 31, 45, 450 A.2d 817 (1982). When the plaintiff became the owner in fee of the servient estate, his easement was extinguished by merger; see Blanchard v. Maxson, 84 Conn. 429, 434, 80 A. 206 (1911); but he continued to use the driveway as the means of ingress and egress to his house. The referee reasonably determined that both the plaintiff and the defendant used the driveway. If the defendant did not have the easement over the driveway, the plaintiff would bear the full cost of repairs and maintenance himself. We cannot conclude that the defendant should be required to subsidize the plaintiffs use of his own property. It is appropriate that both parties contribute to the maintenance of the driveway because both parties contribute to the wear on the driveway. We conclude that the proper rule is, absent language in a deed to the contrary, “[j]oint use by the servient owner and the servitude beneficiary ... of the servient estate for the purpose authorized by the easement . . . gives rise to an obligation to contribute j ointly to the costs reasonably incurred for repair and maintenance of the portion of the servient estate . . . used in common.” 1 Restatement (Third), Property, Servitudes § 4.13 (3), pp. 631-32 (2000). This was the result reached by the court, and, so, we affirm that portion of the judgment requiring the plaintiff and the defendant to share the costs of routine maintenance.

The judgment is reversed in part and the case is remanded with direction to render judgment as on file except as modified to eliminate the restriction on the plaintiff from removing vegetation on his property.

In this opinion the other judges concurred.

       The plaintiffs claims for relief were as follows:
      “1. That the defendant be enjoined from performing any act or utilizing the right-of-way for any purpose except ingress and egress.
      “2. Money damages.
      “3. Attorney fees.
      “4. Costs and fees.
      “5. Such other and further relief the court deems appropriate.”
      The defendant’s counterclaim did not plead a claim for relief, but the defendant did plead damages in the body of his complaint.

       Although the referee’s report describes the driveway as two sections (“the large right-of-way” and “the small right-of-way”), there is no need to employ this distinction in this opinion, because the plaintiff is now the owner in fee of the entire servient estate over which both sections pass, and there is no claim by the plaintiff that the two sections should be treated differently for the purposes of this appeal. Therefore, we will describe both sections collectively as either “the right-of-way” when analyzing the defendant’s rights or simply “the driveway” when analyzing the plaintiffs rights and duties.

       The referee’s conclusions of law at paragraph 7. c. of his report states: “One passing area, in a location to be agreed upon by the parties within thirty days, and approximately half way up the large right-of-way, should be created. It shall be eighteen feet wide and twenty-five feet long so that it will allow two passenger-sized vehicles to pass each other. If the parties cannot agree upon the location of the area within thirty days, the matter may be referred back to me for such determination.”

       We are able to review the photographs of the right-of-way that are part of the record. In the absence of testimony explaining the location and perspective of the pictures, though, these photographs provide little assistance in determining whether a passing area was necessary.

       Paragraph 7. g. of the referee’s conclusions of law states: “The driveway and the allowed portion of the small right-of-way, although passable, are in need of some repair and may be graded to even them out. The question is who should pay for it. ‘The law is settled that the obligation of the owner of the servient estate, as regards the easement, is not to maintain it, but to refrain from doing or suffering something to be done which results in an impairment of it.’ Kelly v. Ivler, 187 Conn. 31, 45, 450 A.2d 817 (1982). The defendant claims the improvements should be paid for jointly, but the plaintiff is perfectly happy with the current state of affairs. Under the circumstances, since the driveway is still passable, if the defendant wants to improve it, that expense should not be forced upon the plaintiff, and the defendant should pay for the improvements. Likewise, the defendant may additionally, at his expense, install 3/4” traproclc spread to a depth of 2.5” for the length of the right-of-way. See Kuras v. Kope, 205 Conn. 332, 346, 533 A.2d 1202 (1987).”

       The plaintiff, in his reply brief, raises two issues that he did not raise in his initial brief to this court: (1) whether the referee’s finding that the right-of-way was “passable” should prevent the defendant from making improvements; and (2) whether there is a legally significant distinction between “improvements” and “maintenance.” The plaintiff, however, failed to raise these issues in his initial brief. “It is a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 48 n.42, 717 A.2d 77 (1998). Therefore, we will not determine whether grading and installing traprock on the right-of-way are improvements or merely repairs. Merely for the sake of convenience, we refer to the work the defendant may do as “improvements.”

       Paragraph 7. a. of the referee’s conclusions of law states: “The defendant should be enjoined from engaging in any activity on the large right-of-way beyond using it for ingress and egress to his property and further enjoined from any activity interfering with any activity of the plaintiff on the [large right-of-way] which does not affect the defendant’s use of the driveway for ingress and egress to his property. He should be enjoined from using the easterly portion of the small right-of-way and from interfering with the plaintiffs sign.”
      Furthermore, paragraph 7. e. of the referee’s conclusions of law states: “The plaintiff may restrict the defendant’s access from the right-of-way to parking areas not located within the right-of-way. The purpose of the right-of-way was for ingress and egress to the defendant’s residence and not to facilitate his parking on other people’s property.” (Emphasis in original.)

       The defendant pleaded in paragraph 3. B. of his counterclaim that the plaintiff had “attempted to prevent the defendant from removing natural and manmade obstacles from the rights-of-way.” The defendant, however, never sought to prevent the plaintiff from removing vegetation or other natural obstacles on or near the right-of-way.

       The defendant states that he has no objection to the plaintiffs removing vegetation. We note that the plaintiff is the owner in fee of the servient estate over which the defendant has a right-of-way. The referee restricted the plaintiff from removing vegetation on his property for no reason that we can discern from the record. There was no finding that would suggest that this restriction upon the plaintiff was necessary to prevent him from interfering with the defendant’s use of the right-of-way. The rights and duties of the plaintiff as owner of the servient estate are clear: “The law is settled that the obligation of the owner of the servient estate, as regards an easement, is not to maintain it, but to refrain from doing or suffering something to be done which results in an impairment of it.” (Internal quotation marks omitted.) Kelly v. Ivler, 187 Conn. 31, 45, 450 A.2d 817 (1982).


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. EDWARD SMITH
    (AC 21572)
    Foti, Schaller and West, Js.
    Argued September 23 —
    officially released December 3, 2002

      David B. Bachman, for the appellant (defendant).

      Eileen F. McCarthy, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and James Bernardi, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Edward Smith, appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (l) and possession of narcotics in violation of General Statutes § 21a-279 (a). On appeal, the defendant claims that (1) the evidence adduced at trial was insufficient to support his conviction of risk of injury to a child and (2) the court improperly failed to inquire adequately in regard to his request for new counsel and improperly denied his request for a continuance so that he could obtain new counsel. We affirm, in part, and reverse, in part, the judgment of the trial court.

The jury could have reasonably found the following facts. In the early afternoon hours on January 29, 1998, officers from the Norwalk police department executed a search and seizure warrant at an apartment in a public housing project in Norwalk. After arriving at the scene and announcing themselves and their purpose, the officers used a battering ram to gain entry to the apartment. Upon entering the two bedroom apartment, the officers discovered the defendant lying on a bed in a semiconscious state. The officers also discovered a small male child sitting nearby, behind the defendant, on the bed. After the officers brought the defendant and the child to an adjoining living room, they searched and secured the bedroom. While conducting their search, they found an aluminum foil packet on top of the mattress and bedding. The packet contained a “rock” of crack cocaine that was 0.6 grams in weight and 82.8 percent pure. The quality and quantity of that crack cocaine was such that it could have been divided into six or seven adult doses. It would have taken an average person approximately two hours of continuous smoking to consume the entire quantity of crack cocaine found on the bed by the officers. Officers also found a BB pistol in a drawer of the nightstand next to the bed, a bottle of lactose, which is a substance commonly used to dilute cocaine, as well as sixty-six small Ziploc brand glassine bags. The defendant admitted living in the apartment, and officers found an envelope addressed to him in a nearby dresser drawer in the bedroom. Additional facts will be set forth as necessary.

I

The defendant first claims that the state failed to present sufficient evidence to sustain his conviction for risk of injury to a child. Specifically, he claims that the state failed to show actual, substantial danger so as to demonstrate that the child was in a situation such that his “life or limb [was] endangered” or that his “health [was] likely to be injured . . . .” General Statutes (Rev. to 1997) § 53-21 (1). The defendant also claims that the state failed to demonstrate that he acted “wilfully.” We agree that the evidence does not support the defendant’s conviction under § 53-21.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Citations omitted; internal quotation marks omitted.) State v. James, 237 Conn. 390, 435-36, 678 A.2d 1338 (1996).

The state charged the defendant with one count of risk of injury to a child, alleging that he “did wilfully and unlawfully cause and permit ... a child under the age of sixteen years, to be placed in such a situation that the life or limb of such child was endangered, the health of such child was likely to be injured or the morals of such child was likely to be impaired in violation of [§ 53-21 (l)].” The case was tried and defended on the theory that the child’s health was endangered by being in close proximity, perhaps as close as one foot, to the aluminum wrapped crack cocaine rock and that the defendant wilfully created that situation, which was likely to impair the health of the child.

The state must prove three essential elements to sustain a conviction under § 53-21 (1). The state must prove that “(1) . . . the defendant’s conduct was wilful or unlawful, (2) the defendant created, acquiesced in or was deliberately indifferent to a situation that was likely to be harmful to the victim’s health or morals, and (3) the victim was less than sixteen years old.” State v. Payne, 40 Conn. App. 1, 13, 669 A.2d 582 (1995), aff'd, 240 Conn. 766, 695 A.2d 525 (1997). Section 52-21 does not require the state to prove that the health of the child actually was impaired, but only that the conduct or the acts of the defendant were such that the health of the child was likely to be impaired. See State v. Apostle, 8 Conn. App. 216, 242-43, 512 A.2d 947 (1986); see also State v. Branham, 56 Conn. App. 395, 402, 743 A.2d 635 (statute covers situation in which there need be only risk of injury for defendant to be convicted), cert. denied, 252 Conn. 937, 747 A.2d 3 (2000).

In the present case, the parties do not dispute that the child was younger than sixteen years of age. The defendant argues that there was no evidence that he had created a situation that was likely to impair the child’s health. The state adduced evidence that the child was on a bed with the defendant. At that time, the defendant was in a semiconscious state. An amount of rock cocaine, 0.6 grams in weight and 82.8 percent pure, was wrapped in foil on top of the mattress. The evidence also established that the child may have been as close as one foot from the foil encased cocaine.

The state posits that an “average juror could surmise that because cocaine is an illegal narcotic substance, its close proximity to the toddler created a potentially harmful situation.” The state argues that the expert testimony it presented as to the drug’s impact, when considered with the jurors’ life experiences regarding the propensities of young children, was sufficient to allow the jury to find that “the danger to this child was quite real and close at hand.”

Given the unique facts of this case, we do not agree that the evidence was sufficient to sustain the conviction. Our holding rests primarily on the fact that the state failed to produce any evidence to demonstrate the likely effect of the substance on the child had it been ingested.

This court recently concluded that a jury cannot be expected, absent the assistance of expert testimony, to understand or to appreciate the possible detrimental effects of eating marijuana or solely being in its presence. State v. Padua, 73 Conn. App. 386, 396-97, 808 A.2d 361 (2002). In Padua, the state failed to present expert testimony to demonstrate that being near or having access to marijuana can be injurious to the health of a child. Accordingly, we held that the state had failed to demonstrate, beyond a reasonable doubt, that the defendant had created a risk of injury to the victim under § 53-21. Id., 398.

We are faced with an analogous situation. The juiy heard expert testimony as to the effect of crack cocaine on an adult when such adult smokes the cocaine. There is no evidence as to the effect that this cocaine, in such “rock” form, would have had on the child had it been ingested. The jury was expected to apply its knowledge of the ordinary affairs of life to its deliberations. Life experience certainly teaches that young children generally are ambulatory, curious, and capable of tearing, pulling at and opening objects that are folded and closed. Additionally, such knowledge likely includes the fact that children often put things in their mouths. This court cannot infer, however, that the average juror has common knowledge or life experience as to whether crack cocaine would dissolve if a child placed it in his or her mouth, if crack cocaine is chewable, or whether crack cocaine would have had any deleterious effect at all on a small child who swallowed that substance. In fact, the only evidence adduced by the state as to the possible effect of that crack cocaine on the child was that it was “not a water soluble cocaine” and that smoking crack cocaine gives that substance its effect.

The evidence merely demonstrated that the child was in the presence of cocaine that was wrapped in foil. There was no evidence as to whether the child’s skills were such that he could have reached the packet or that he possessed the manual dexterity to have opened it to gain access to the crack cocaine. Assuming, however, that the jury reasonably could have found that the child possessed the ability to ingest the crack cocaine, we still recognize the important fact that there was no competent evidence as to whether such crack cocaine was likely to have been harmful to the child had it been ingested. Competent evidence did not support a finding by the jury that the defendant, by merely creating a situation in which the child was in the presence of the crack cocaine, had created a situation that was likely to be injurious to the child’s health.

Ixi Padua, this court stated that “[wjhile we certainly do not condone a child’s being put in this type of situation, we cannot conclude that the jury, without the assistance of expert testimony, could have been expected to understand or to appreciate the possible detrimental physical effects of eating marijuana or solely being in its presence.” Id., 396. That same rationale applies with equal force to the present case.

Accordingly, we reverse the defendant’s conviction for the crime of risk of injury to a child in violation of § 53-21 and remand the case to the trial court with direction to render a judgment of acquittal on that count.

II

The defendant next claims that the court improperly failed to inquire adequately in regard to his request for new counsel and improperly denied his request for a continuance so that he could obtain new counsel. We are not persuaded.

The record discloses the following additional facts. Two attorneys, assistant public defender Elizabeth Reid and special public defender Stephen Feinstein, first represented the defendant in this matter. The defendant failed to appear in court on several occasions in 1998. On May 18,1999, the defendant filed a motion to dismiss Feinstein as his counsel and filed a grievance against Feinstein. The court denied the defendant’s motion. On June 1, 1999, Feinstein informed the court that the defendant was attempting to hire private counsel. The court scheduled the case for trial on June 15,1999. The court thereafter changed the venue of the case from Norwalk to Stamford and, on September 8, 1999, appointed another special public defender, Christian W. Bujdud, to represent the defendant. On November 17,1999, the defendant filed a motion for a speedy trial. On December 2, 1999, the court, having transferred the case from part B to part A, appointed special public defender Wayne R. Keeney to represent the defendant.

On March 9, 2000, as jury selection was about to commence, Keeney informed the court that the defendant wanted to be represented by different counsel. The court asked Keeney why he believed that the defendant was seeking alternate representation. Keeney replied, “I think — from the way I understand it, we have a difference of opinion on tactics.” The court inquired directly of the defendant. The defendant communicated to the court his belief that Keeney had failed to meet with him, was not helpful and did not discuss the case with him. Keeney did not represent that he was not prepared for trial, that a conflict existed or that he requested a further continuance in the proceedings.

The court informed the defendant that in light of the stage of the proceedings, his complaints did not constitute good cause as to warrant a change in counsel. The court also informed the defendant that it respected Keeney’s abilities and that Keeney “has a pretty consistent winning record around the criminal courts . . . .” The court denied the motion.

We review the defendant’s two part claim under an abuse of discretion standard of review. “[A] trial court has a responsibility to inquire into and to evaluate carefully all substantial complaints concerning court-appointed counsel .... The extent of that inquiry, however, lies within the discretion of the trial court. ... A trial court does not abuse its discretion by failing to make further inquiry where the defendant has already had an adequate opportunity to inform the trial court of his complaints.” (Citations omitted; internal quotation marks omitted.) State v. Ruffin, 48 Conn. App. 504, 514, 710 A.2d 1381, cert. denied, 245 Conn. 910, 718 A.2d 18 (1998).

Despite the fact that courts must always safeguard a defendant’s constitutional right to the effective assistance of counsel, the right to obtain alternate counsel cannot be exercised in an unbridled manner. “[Appellate tribunals look with a jaundiced eye at complaints regarding adequacy of counsel made on the eve of trial .... Such a request must be supported by a substantial reason and, [ip order to work a delay by a last minute discharge of counsel there must exist exceptional circumstances. . . . Inherent in these limitations is a concern for unwarranted interruptions in the administration of justice. . . . The standard of review to be applied when reviewing a denial of a request for alternate counsel is whether the trial court abused its discretion in determining that a factual basis did not exist for granting the request.” (Citations omitted; internal quotation marks omitted.) State v. Miller, 69 Conn. App. 597, 611, 795 A.2d 611, cert. denied, 260 Conn. 939, 802 A.2d 91 (2002).

We first conclude that the court’s inquiry into the defendant’s request was sufficient. The court properly permitted the defendant to communicate his reasons for the request. On the basis of the defendant’s observations as well as Keeney’s representation that the defendant merely disapproved of his trial tactics, we conclude that the court conducted an adequate inquiry. We next conclude that the court, having considered the claims made by the defendant and having found them not to be substantial, properly concluded that the defendant did not demonstrate good cause to work a change in counsel. The record before us reflects that the defendant failed to demonstrate the existence of exceptional circumstances that are necessary to warrant a last minute delay in the proceedings to obtain a change of counsel. Accordingly, the court did not abuse its discretion in denying the defendant’s request.

The judgment is reversed only as to the conviction of risk of injury to a child and the case is remanded with direction to render a judgment of acquittal on that count. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 53-21 provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony.”

       General Statutes § 21a-279 (a) provides in relevant part: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned . . . .”
      The defendant was convicted of the offense under § 21a-279 (a) as a lesser offense included within the original charge of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). As a result of that conviction, the jury did not need to decide the third charge in the information, namely, possession of narcotics with intent to sell within 1500 feet of apublic housing project inviolation of General Statutes § 21a-278a(b).

       The defendant makes no claim that the evidence was insufficient to support his conviction under General Statutes § 21a-279 (a) for possession of narcotics.

       The record fails to disclose the exact age of the child. One officer, while testifying at trial, referred to the child as an “infant.” Another officer testified that he estimated the age of the child to be “no more than one year old.”

       The record reflects that the defendant sought a judgment of acquittal at trial on those grounds, thereby preserving the issue for our review.

       The defendant claims that the provision of General Statutes (Rev. to 1997) § 53-21 (1) that concerns a person who causes or permits the likely impairment of a child’s morals is not at issue in this case. The state, however, does not concede that this is true. As we have stated, the state did not argue its case on that ground at trial. “Although exposing a child, old enough to appreciate what was transpiring, to selling [narcotics] might be considered as endangering the morals of that child”; State v. Padua, 73 Conn. App. 386, 393, 808 A.2d 361 (2002); the state made no claim herein that the child was in fact old enough. In prosecutions under the impairment of morals provision of § 53-21, the state need not prove the child’s awareness of the conduct at issue; what is necessary is that the state prove that the defendant’s conduct was likely to impair the morals of the child victim. See State v. Laracuente, 205 Conn. 515, 521-23, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988); State v. Cutro, 37 Conn. App. 534, 541-42, 657 A.2d 239 (1995). In this case, the state did not even claim, let alone produce evidence to support a finding, that the child, perhaps less than one year old, possessed the capacity to appreciate or to comprehend the allegedly prohibited conduct to which he was exposed.

       The defendant makes no claim that the evidence was insufficient to support his conviction under General Statutes § 21a-279 (a) for possession of narcotics.
      Because we conclude as we do, we find it unnecessary to address the defendant’s claim that the state failed to prove beyond a reasonable doubt that he acted “wilfully” to support a conviction under General Statutes (Rev. to 1997) § 53-21.

       The defendant addressed the court in relevant part as follows: “Me and Mr. Keeney is having a conflict, a conflict of interest between me and him because of he don’t come and see me, he don’t discuss my case. Ever since— I been down seventeen months now, and ever since I entered the Stamford courthouse and had him represent me, we don’t talk about my case; he’d be on somebody else’s case. He don’t come and see me. He tells me that he’s going to come and see me, we’ll talk about, discuss my case .... I ain’t seen him in four days. We supposed to went over the matter, Your Honor, and also that he’s not, also that he’s not being helpful.”


text:
    ERROL DUNKLEY v. COMMISSIONER OF CORRECTION
    (AC 21629)
    Flynn, Bishop and Landau, Js.

      Argued September 24 —
    officially released December 3, 2002

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

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Mary Beth Baron, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, J.

The petitioner, Errol Dunkley, appeals from the judgment of the habeas court denying his petition for certification to appeal, filed pursuant to General Statutes § 52-470 (b), and denying his amended petition for a writ of habeas corpus. We dismiss the petitioner’s appeal.

In the underlying criminal proceedings, the petitioner was charged with attempt to commit kidnapping and burglary in the first degree for a March 10,1994 incident that occurred at 78 Asylum Street in New Haven. He was also charged with being a persistent felony offender. On July 17, 1995, following a jury trial, the petitioner was convicted on the burglary charge but acquitted on the remaining charges. Following his conviction, the petitioner filed a petition for a writ of habeas corpus, claiming that his attorney had rendered ineffective assistance by failing to investigate the case adequately. The petitioner also claimed that his attorney had a conflict of interest because he was representing the petitioner while simultaneously representing Easper Watts, a potential witness and alleged suspect in the petitioner’s case. The habeas court rejected the petitioner’s claims, denied his petition and denied certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying the petition for certification and (2) improperly denied the amended petition for writ of habeas corpus. Only if the petitioner is successful in carrying his burden of persuasion on the first issue will the court determine the merits of the second issue.

“[A] disappointed habeas coipus litigant [may] invoke appellate jurisdiction for plenary review of the decision of the habeas court upon carrying the burden of persuasion that denial of certification to appeal was an abuse of discretion or that injustice appears to have been done. Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994) [Simms I], The Supreme Court adopted this test in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994) [Simms II], and stated that the petitioner must first show that the habeas court’s decision was an abuse of discretion. To establish an abuse of discretion, the petitioner must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . Rivera v. Commissioner of Correction, 254 Conn. 214, 227, 756 A.2d 1264 (2000); see also Simms v. Warden, supra, 230 Conn. 616-17 [Simms II]. If the appeal meets one of the criteria set forth in [Simms II], the habeas court’s failure to grant certification to appeal constitutes an abuse of discretion. After successfully demonstrating the existence of an abuse of discretion, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. Simms v. Warden, supra, 230 Conn. 612.” (Internal quotation marks omitted.) Robinson v. Commissioner of Correction, 62 Conn. App. 429, 433-34, 771 A.2d 952, cert. denied, 257 Conn. 902, 777 A.2d 194 (2001).

In deciding whether the petitioner has established a clear abuse of discretion in the court’s denial of his request for certification, we must determine whether, in fact, a certifiable issue exists. In reviewing the record before us, we conclude that the habeas court did not abuse its discretion in denying the petitioner certification to appeal because there was no issue worthy of certification. Contrary to the petitioner’s claim, the issue of whether the petitioner was deprived of the effective assistance of counsel is not debatable among jurists of reason, nor could a court resolve the issues in a manner different from that in which they were resolved, nor are the questions adequate to deserve encouragement to proceed further. The issues raised by the petitioner simply do not warrant review.

The petitioner raised two claims concerning his trial counsel’s performance. First, the petitioner claimed that trial counsel provided ineffective assistance because he failed to investigate the petitioner’s case adequately and to call alibi witnesses in his defense. Specifically, the petitioner argued that counsel should have called the petitioner’s mother, sister and wife to testily as to his whereabouts and activities on the day in question. He also claimed that trial counsel should have called Watts to the stand to testify that the petitioner did not live at 104-1/2 Rosette Street in New Haven. The petitioner further claimed that counsel should have called Watts to testify because Watts may have been the actual perpetrator of the crimes for which the petitioner was charged and subsequently convicted. The petitioner’s conflict of interest claim, which also concerns Watts and the petitioner’s counsel, will be discussed separately.

We address each of these claims in turn.

A

In consideration of the petitioner’s claim concerning the adequacy of tiial counsel’s investigation and the calling of alibi witnesses, “[t]he petitioner seeks to have us use hindsight with [regard] to his counsel’s decision not to call the witnesses to testify. We will not do so. We have stated that the presentation of testimonial evidence is a matter of trial strategy. . . . The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.” (Internal quotation marks omitted.) Adorno v. Commissioner of Correction, 66 Conn. App. 179, 186, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001).

In this case, the habeas court specifically found that the petitioner’s trial counsel “conducted an adequate investigation into the facts of the case prior to trial . . . [and that he] had all of the police reports and witness statements . . . [and] all of the evidence was fully discussed with the petitioner.” The court further found that the petitioner’s trial counsel “considered whether the petitioner’s wife, mother and sister would be appropriate witnesses at trial and concluded that they would not be good witnesses. This fact was borne out by what [the] court considered] and [found] to be the incredible and inconsistent testimony of the petitioner’s wife, mother and sister at the habeas trial. There was nothing in the habeas trial testimony of the said mother, wife and sister that would likely have been of any benefit to the petitioner . . . .”

Additionally, the habeas court stated in its memorandum of decision that the petitioner’s attorney did not call Watts because he concluded that “Watts [was] a six time convicted felon [who] would not have been a good witness for the defense.” (Internal quotation marks omitted.) Trial counsel explained at the habeas hearing that Watts’ testimony concerning the Rosette Street address would have been cumulative because the owner of the house was called to testify about that fact. Trial counsel further testified that he believed that Watts would have been detrimental to the petitioner’s case because of his long felony record.

“ [T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Citation omitted.) Iovieno v. Commissioner of Correction, 67 Conn. App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002). In this case, the petitioner made no showing to the court that the testimony of his family or Watts would have been helpful in establishing his defense. This, coupled with the habeas court’s finding that the familial witnesses were not credible, renders this ground of the petitioner’s claim nondebatable among jurists of reason, unresolvable in a manner different from that in which it was resolved and inadequate to deserve encouragement to proceed further. The habeas court properly denied certification on this ground of the petitioner’s claim.

B

The petitioner also claims that trial counsel was ineffective because he should have attempted to demonstrate some type of third party culpability as to Watts.

“Both this state and other jurisdictions have recognized that a defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. . . . The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged .... It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused. State v. Echols, 203 Conn. 385, 392 [524 A.2d 1143 (1987)] . . . State v. Milner, 206 Conn. 512, 517 [539 A.2d 80] (1988).” (Emphasis added; internal quotation marks omitted.) J. Brackmann, G. Nash & J. Katz, Connecticut Criminal Caselaw Handbook (1989) p. 225.

On this claim, the petitioner attempts to make much out of little. Although the petitioner’s trial counsel did not call Watts as a witness at the criminal trial, Watts did testify at the petitioner’s habeas hearing. Watts testified that he was currently serving a sentence for possession of an assault weapon, possession of narcotics and tampering with a witness. At the time of the burglary in the underlying case, Watts lived at 180 Gilbert Avenue in New Haven. However, he also rented apartments “in his name” at 104 and 104-1/2 Rosette Street in New Haven, which he, in turn, rented to other individuals under verbal agreements. Watts further testified that he was aware that a robbery had occurred at 104-1/2 Rosette Street on March 10, 1994, but he owned none of the items allegedly taken. Watts also testified that he became aware of the attempted kidnapping and burglary at 78 Asylum Street, for which the petitioner was charged, the following day. Further, Watts testified that he was not involved in the burglary on Asylum Street, and he had no direct knowledge of the burglary or who committed it.

The petitioner wanted trial counsel to attempt to link Watts to the Asylum Street crimes on a theory of retaliation for the alleged Rosette Street robbery. Testimony at the habeas hearing indicated that the person allegedly responsible for the Rosette Street robbery, one Randy Garcia, was the same person whom the petitioner was charged with attempting to kidnap in front of 78 Asylum Street, where Garcia’s sister resided. Shortly after this alleged incident, the petitioner, and several others, burglarized the home of Garcia’s sister while Garcia hid under the bed. During the burglary, the assailants stated that this was in retaliation for the robbery on Rosette Street. All of the alleged accomplices were masked except for the petitioner, whom Garcia positively identified later that same day.

As we noted in part I A, the decision whether to call a witness is one of trial strategy. Here, counsel opined that Watts would not have been a favorable witness. Additionally, counsel also testified at the habeas hearing that he had no evidence to support a third party culpability claim against Watts, that no one at the scene implicated Watts as a participant in the burglary, and that Watts and the petitioner did not look anything alike. The habeas court also found “no evidence that Watts was ever a suspect in or implicated in any way in the crimes for which the petitioner was tried and convicted.”

The petitioner’s assertion that trial counsel was ineffective because he should have implicated Watts in a third party culpability defense is without merit and unworthy of debate among jurists of reason, unresolvable in a manner different from that in which it was resolved and inadequate to deserve encouragement to proceed further. Accordingly, the habeas court properly denied the petition for certification on this ground.

II

The petitioner next claims that trial counsel rendered ineffective assistance by continuing to represent him in the case despite a conflict of interest. The petitioner claims that the conflict of interest existed because his counsel, at the time of the petitioner’s trial, also represented Watts, a potential witness in the petitioner’s case, in an umelated matter.

“Our Supreme Court has established the proof requirements where a habeas corpus petitioner claims ineffective assistance of counsel because of a claimed conflict of interest. Where . . . the defendant claims that his counsel was burdened by an actual conflict of interest . . . the defendant need not establish actual prejudice. . . . Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breachjed] the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.” (Internal quotation marks omitted.) Myers v. Commissioner of Correction, 68 Conn. App. 31, 34, 789 A.2d 999, cert. denied, 260 Conn. 907, 795 A.2d 545 (2002); see also Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).

The petitioner argues that trial counsel had a conflict of interest because he represented both the petitioner and Watts, although on different cases. Specifically, the petitioner argues: “The excuse that Mr. Watts would not have offered substantive testimony does not remedy the situation. If Mr. Watts had been called to testify, trial counsel would have been obligated to thoroughly cross-examine Mr. Watts regarding his ownership, his drug arrests and the nature of those activities stemming from the Rosette Street property. Such a situation would clearly result in a compromise of Mr. Watts’ confidentiality rights. Conversely, by not calling Mr. Watts to testify, trial counsel short-chang[ed] the petitioner-appellant . . . .”

As we discussed in part IB, trial counsel determined that Watts would be an unfavorable witness because of his long history of felony convictions. The habeas court acknowledged that “the petitioner and Watts knew each other” but found that “both of them knew that [trial counsel] represented the other at the time of the [petitioner’s] trial.” The court concluded that there was “no evidence that would support a claim that there was anything in the joint representation of Watts and the petitioner that affected [counsel’s] duty of undivided loyalty to the petitioner. There was no evidence that Watts was ever a suspect in or implicated in any way in the crimes for which the petitioner was tried and convicted. Nor was any credible evidence offered to substantiate any finding by [the habeas court] that [trial counsel’s] performance as counsel for the petitioner was in any way adversely affected by the joint representation.”

The petitioner has failed to point to anything in the record that would be contrary to the habeas court’s findings and conclusions as to the facts. The petitioner’s conclusion that there existed a conflict of interest because trial counsel represented another defendant, not shown to be in any manner connected to the burglary underlying this case, is without merit, nondebatable among jurists of reason, unresolvable in a manner different from that in which it was resolved and inadequate to deserve encouragement to proceed further. Accordingly, the claim was unworthy of certification.

III

After a review of the briefs and record, we conclude that the habeas court properly concluded as it did on the basis of the evidence before it. The habeas court did not abuse its discretion in denying the petitioner’s certification to appeal. The petitioner, having been unsuccessful in demonstrating that the denial of certification to appeal was a clear abuse of the habeas court’s discretion or that an injustice has been done, failed to sustain his burden of persuasion.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the Supreme Court or Appellate Court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       Throughout the record and briefs, Watts’ first name is spelled both Easper and Esper. At the December 3,1999 habeas hearing, Watts spelled his name for the court as E-A-S-P-E-R. Accordingly, we refer to him as such and have changed the references to reflect accurately this spelling where appropriate.

       The petitioner also filed a complaint against trial counsel with the statewide grievance committee on this same ground. After a December 10, 1998 hearing, the committee dismissed the grievance and concluded that there was no actual conflict of interest. The committee, however, criticized counsel for not obtaining a waiver from the petitioner concerning any potential conflict of interest.

       There was evidence in the record that the Asylum Street burglary was in retaliation for a robbery that allegedly took place at 104-1/2 Rosette Street earlier in the day.