text:
    STATE OF CONNECTICUT v. ROGER A. JONES
    (AC 24224)
    Foti, Flynn and DiPentima, Js.
    Argued January 8 —
    officially released March 16, 2004

      Neal Cone, senior assistant public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were James E. Thomas, state’s attorney, and, on the brief, Herbert J. Carlson, Jr., supervisory assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Roger A. Jones, appeals from the judgment of conviction, rendered after a jury trial, of one count of murder in violation of General Statutes § 53a-54a, one count of manslaughter in the first degree in violation of General Statutes § 53a-55, two counts of felony murder in violation of General Statutes § 53a-54c, one count of burglary in the first degree in violation of General Statutes § 53a-101, one count of conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 and 53a-101, one count of larceny in the first degree in violation of General Statutes § 53a-122, and one count of conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-48 and 53a-122. On appeal, the defendant claims that the court’s reasonable doubt instructions to the jury deprived him of his rights to due process under both the state and federal constitutions. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the evening hours of November 1, 1996, the defendant and an accomplice, Vaughn Walker, arrived at the West Hartford home of John Haugh and Patricia Haugh. Walker severed the telephone lines to the home, and the defendant and Walker gained entry by means of a garage window. John Haugh, who was in his living room at the time of the intrusion, resisted the defendant and Walker. The defendant struck John Haugh in the stomach and Walker struck Haugh in the head with a small baseball bat that he had brought with him. After subduing Haugh, Walker and the defendant bound Haugh’s legs with duct tape that they had brought with them. John Haugh died as a result of the head injury inflicted by Walker. The defendant and Walker thereafter went upstairs, where they found Patricia Haugh asleep in her bed. Walker forcibly held a pillow over Patricia Haugh’s head, smothering her to death, while the defendant stood nearby. Walker killed the victims in furtherance of a criminal scheme between himself and the defendant. The object of this scheme was to burglarize the home and to steal John Haugh’s automobile. The defendant and Walker removed several items from the home, including credit cards, personal checks and a compact disc player. They left in John Haugh’s automobile.

In its charge, the court instructed the jury that the state bore the burden of proving beyond a reasonable doubt each and eveiy element of each offense charged. The court then instructed the jury with regard to reasonable doubt. The defendant claims that the court’s instruction deprived him of the due process rights afforded him under article first, § 8, of the constitution of Connecticut and the fourteenth amendment to the constitution of the United States. The defendant claims that the instruction created a “reasonable likelihood” and a “reasonable possibility” that the jury believed that “a doubt, to be reasonable, was greater than that needed to acquit under the state and federal constitutions.”

The defendant challenges several aspects of the reasonable doubt instructions but did not preserve many aspects of his claim. He now seeks review under the four part test set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The claim is reviewable because the record is adequate and because a claim of instructional error related to the burden of proof is of constitutional magnitude. See, e.g., State v. Morant, 242 Conn. 666, 686-87, 701 A.2d 1 (1997). The claim, however, fails on its merits under Golding’s third prong because the defendant has not demonstrated that a constitutional violation clearly exists and clearly deprived him of a fair trial.

“It is fundamental that proof of guilt in a criminal case must be beyond a reasonable doubt. . . . The [reasonable doubt concept] provides concrete substance for the presumption of innocence — that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law. ... At the same time, by impressing upon the [fact finder] the need to reach a subjective state of near certitude of the guilt of the accused, the [reasonable doubt] standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself. . . . [Consequently] [t]he defendants in a criminal case are entitled to a clear and unequivocal charge by the court that the guilt of the defendants must be proved beyond a reasonable doubt. . . .

“In deternúning whether a trial court’s charge satisfies constitutional requirements, however, individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law: . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.” (Citations omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 105-106, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).

First, the defendant challenges the following sentence from the instruction: “It is not required that the state prove guilt beyond all possible doubt.” The defendant argues that this language unduly favored the prosecution. In State v. Morant, supra, 242 Conn. 687-88, our Supreme Court upheld a nearly identical statement in an instruction on reasonable doubt. The Supreme Court stated that it had before it no valid reason to depart from its previous decisions approving such an instruction under either the state or federal constitutions; id., 688; and we are bound by that decision.

Second, the defendant challenges the following sentence from the instruction, which the court repeated twice: “The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty.” The defendant argues that this part of the instruction favored the state. This statement is not an improper component of an instruction on reasonable doubt because it accurately states the law, and our Supreme Court has upheld nearly verbatim instructions. See State v. Lemoine, 256 Conn. 193, 202, 770 A.2d 491 (2001); State v. Ryerson, 201 Conn. 333, 343 n.2, 514 A.2d 337 (1986).

Third, the defendant claims that the court improperly omitted an instruction that he sought in his request to charge, namely, that “[i]f you are not convinced in your mind to a mental state of near certitude of [the defendant’s] guilt, then the state has not convinced you beyond a reasonable doubt.” The defendant recognizes that our Supreme Court, in State v. Ryerson, supra, 201 Conn. 342, ruled that due process does not require the court to use such language concerning the jury’s “near certitude” in reaching a verdict. The defendant, however, argues that the charge was improper because it did not include either this language or language concerning the jury’s need to possess an “abiding conviction” of the defendant’s guilt prior to delivering a guilty verdict. Having reviewed the charge in its entirety, we conclude that it adequately conveyed the requisite degree of certitude required by the jury in order to reach a guilty verdict.

Fourth, the defendant claims that the court diluted the state’s burden of proof in the following instruction: “If you had a reasonable doubt, it would be such a doubt of such a convincing character that a reasonable person would hesitate in the most important affairs of his or her life to act upon it.” The defendant claims that the word “convincing” implied that a reasonable doubt needed to be a doubt held with a high level of confidence, a doubt that “is the very biggest type of doubt one can possess.” This strained interpretation of the word “convincing” runs contrary to the court’s overall charge. Further, our Supreme Court has upheld nearly identical language. See, e.g., State v. Velasco, 253 Conn. 210, 248-49, 751 A.2d 800 (2000); State v. Morant, supra, 242 Conn. 688; see also State v. Nunes, 58 Conn. App. 296, 308, 752 A.2d 93, cert. denied, 254 Conn. 944, 762 A.2d 906 (2000); State v. Steed, 54 Conn. App. 543, 549-50, 736 A.2d 918 (1999).

Fifth, the defendant challenges the following instruction: “Reasonable doubt. The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess or a mere conjecture, nor is it a doubt not warranted by the evidence.” The defendant claims that this part of the instruction diluted the state’s burden of proof because it implied that the juiy was free to dismiss a doubt suggested by the evidence or lack of evidence in the case if such doubt was a surmise, a guess or a mere conjecture. We reject this unreasonable inteipretation of the instruction. The court appropriately conveyed to the jury, several times in its charge, that the jury was to examine carefully the evidence and to acquit the defendant of the crimes with which he stood charged if a reasonable doubt existed as to his guilt. The court adequately addressed the relationship between the sufficiency of the evidence and the concept of reasonable doubt.

Sixth, the defendant challenges the court’s charge because it twice contained an instruction that reasonable doubt was not a doubt “not warranted by the evidence.” The defendant posits that this instruction was ambiguous because the word “warrant” is susceptible of more than one meaning. We conclude that it is not reasonably possible that the word “warrant,” in the customary context in which the court used it, misled the jury. See, e.g., State v. Betances, 265 Conn. 493, 510-11, 828 A.2d 1248 (2003).

Seventh, the defendant challenges the court’s instructions that reasonable doubt is “not a surmise, a guess or a mere conjecture.” He argues that such instruction may have caused the jury “not merely to exclude aberrant mental processes, but to put aside real doubts unless those doubts have in their minds a certain degree of strength . . . .” The defendant’s strained interpretation of this aspect of the court’s instruction is not persuasive. Further, our Supreme Court has upheld nearly identical instructions. See, e.g., State v. Rizzo, 266 Conn. 171, 221 n.30, 833 A.2d 363 (2003); State v. Griffin, 253 Conn. 195, 206, 749 A.2d 1192 (2000).

Eighth, the defendant challenges that part of the court’s instruction that reasonable doubt “is not a hesitation springing from any feelings of sympathy or pity for the accused or any other persons who might be affected by your decision.” The court later reiterated that reasonable doubt “would not be a hesitation springing from any feelings of pity or sympathy.” The defendant claims that these instructions were “pro state” because the court advised the jury not to have sympathy for him but did not specifically advise the jury not to have sympathy for “the victims and their family.” The court’s instruction in no way encouraged the jury to let feelings of sympathy for any person or persons affect its verdict; the court advised the juiy not to be affected by “feelings of sympathy or pity for the accused or any other persons who might be affected by your decision.” (Emphasis added.) The defendant’s interpretation of this instruction belies the plain language of the court’s explicit admonition and wholly lacks merit.

Ninth, the defendant challenges the court’s instructions that reasonable doubt was “a real doubt, an honest doubt . . . .” There exists overwhelming precedent adverse to this claim. See, e.g., State v. Reynolds, supra, 264 Conn. 106; State v. Velasco, supra, 253 Conn. 249, State v. Whipper, 258 Conn. 229, 293-98, 780 A.2d 53 (2001).

Tenth, the defendant challenges the instruction that if the jury finds a reasonable doubt as to guilt, “the accused must be given the benefit of that doubt . . . .” The defendant posits that the instruction “could readily be taken to equate when an accused person should be acquitted with giving someone ‘the benefit of [the] doubt’ and that this would yet again suggest that reasonable doubt territory is entered in the vicinity of ‘when the guilt or innocence is evenly balanced.’ ” We see no practical difference between this claim and the claim that we rejected in State v. Vicente, 62 Conn. App. 625, 631-32, 772 A.2d 643 (2001).

Finally, the defendant challenges the following instruction, which the court delivered prior to delivering its specific instructions concerning reasonable doubt: “The state’s burden of proof beyond a reasonable doubt applies to each and every element of the crime charged, but this burden does not operate on any subordinate evidentiary or incidental facts, as distinguished from proof of the elements of the crime or an ultimate fact.

“Where, however, the state relies in whole or in part on circumstantial evidence to prove an element of the crime, although each link in the chain of evidence to support it need not be proven beyond a reasonable doubt, the cumulative impact of the evidence must, in order to support that inference, prove to you beyond a reasonable doubt that the element of the crime has been proved.”

The court correctly stated the law with regard to the state’s burden of proof. See, e.g., State v. Dorans, 261 Conn. 730, 747-48 n.21, 806 A.2d 1033 (2002); State v. Green, 62 Conn. App. 217, 222, 774 A.2d 157 (2001), aff'd, 261 Conn. 653, 804 A.2d 810 (2002). We find no merit to the defendant’s claim that the court’s statement of the law in this regard was “probably confusing.” This court has held that instructions of this type are proper. See, e.g., State v. Lee, 53 Conn. App. 690, 699-700, 734 A.2d 136 (1999).

Having reviewed the court’s instructions concerning reasonable doubt as a whole, we conclude that they could not reasonably have misled the jury. We review jury instructions to determine their effect on the jury in guiding it to a proper verdict. In contrast, the defendant has dissected the court’s charge in a microscopic search for possible error. In so doing, he has interpreted individual words and phrases in artificial isolation, urging us to afford them interpretations that run contrary to their obvious meaning in the context of the court’s charge. Further, the defendant has devoted a significant part of his claim challenging customary instructions that the appellate courts of this state have consistently upheld as being proper. The defendant was not deprived of his constitutional right to a fair trial. Consequently, the defendant’s claim fails under Golding's third prong.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court imposed a total effective sentence of 108 years imprisonment with a 50 year mandatory minimum sentence.

       The court’s instructions were as follows: “Now we come to reasonable doubt, an obviously key concept in our criminal law. I gave you some preview on this just before we started the evidence, as I recall, and, unfortunately, it’s not simple. It’s very important
      “The law presumes [the defendant] to be innocent of the crimes charged. This [defendant], although accused, begins the trial with a ‘clean slate.’ That is, with no evidence against him. The law permits nothing but legal evidence presented to you to be considered in support of any charge against him. The presumption of innocence alone is sufficient to acquit [the defendant] unless you are satisfied beyond a reasonable doubt of his guilt, after careful and impartial consideration of all the evidence in this case.
      “It is not required that the state prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense, the kind of doubt that would malee a reasonable [person] hesitate to act. Proof beyond a reasonable doubt must therefore be proof of such a convincing character that a reasonable person would not hesitate to rely — a reasonable person would not hesitate to act upon it in the most important affairs in his or her own life. If you had a reasonable doubt, it would be such a doubt of such a convincing character that a reasonable person would hesitate in the most important affairs of his or her life to act upon it.
      “You remember that [the defendant] is never to be convicted on mere suspicion or conjecture. The burden is always upon the state to prove guilt beyond a reasonable doubt. This burden never shifts to the defendant. The law never imposes on the defendant in a criminal case the duty of calling any witnesses or producing any evidence. If you, the jury, after careful and impartial consideration of all the evidence in the case have a reasonable doubt that [the defendant] is not guilty of any of the charges, you must acquit him of that charge or of those charges. The exception we will get into on the affirmative defense, whether there is a burden of proof on the defendant.
      “Reasonable doubt. The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess or a mere conjecture, nor is it a doubt not warranted by the evidence. It is such a doubt that in the serious affairs that concern you, you would heed. That is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance. It is not a hesitation springing from any feelings of sympathy or pity for the accused or any other persons who might be affected by your decision. It is, in other words, a reasonable doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is a doubt that is honestly entertained and is reasonable in light of the evidence after a fair and careful examination of the entire evidence.
      “Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law requires that after hearing all of the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of jurors as reasonable men and women a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted.
      “Proof beyond areasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion. Again, the meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, guess or mere conjecture. It is not a doubt that is not warranted by the evidence or lack of evidence. It is a doubt that in the serious affairs of your life you would heed. That is, such a doubt as would cause you to hesitate to act in matters of importance. It would not be a hesitation springing from any feelings of pity or sympathy. It is, in other words, a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence. It’s a doubt that is honestly entertained and is reasonable in the light of the evidence after a fair and careful examination and comparison of the entire evidence. It does not mean proof beyond all doubt. The law does not require absolute certainty before a jury returns with a verdict of guilty. The law requires that after hearing all the evidence, if there’s something in the evidence or lack of evidence that leaves in the minds of the jurors as reasonable men and women a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.”

       The defendant claims that the due process clause of the constitution of Connecticut affords him greater protection than its federal counterpart and, thus, even if the court’s instruction survives scrutiny under the federal constitution, it would not survive scrutiny under our state constitution. The defendant claims that the inquiry under the state constitution asks whether there was “a reasonable possibility” that one or more jurors could have misunderstood the court’s instructions so as to convict him with less than the proper burden of proof. The defendant further claims that the inquiry under the federal constitution asks only whether an improper instruction created a “reasonable likelihood” that the jury applied an improper instruction in reaching its verdict.
      We reject the defendant’s claim that any difference in protection exists. In State v. Otero, 49 Conn. App. 459, 470-74, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998), the defendant sought review of the trial court’s instruction concerning reasonable doubt, claiming that the instruction deprived him of his right to due process under both the state and federal constitutions. In addressing the claim, this court stated: “[0]ur Supreme Court has repeatedly held that, as a general rule, the due process clauses of both the United States and Connecticut constitutions have the same meanings and impose similar limitations. . . . Furthermore, this court has noted that in an independent analysis of a state constitutional provision, departure from federal constitutional precedent is usually justified only where the United States Supreme Court has created exception to or deviated from rales previously enunciated by it ... . When we find that our citizens have relied on an understanding of their constitutional rights that is more expansive than that afforded under a recent interpretation of the federal constitution by the United States Supreme Court, we will be inclined to interpret our state constitution as affording greater protection to preserve those rights. . . . Otherwise, we will continue to follow the persuasive analysis of the United States Supreme Court.” (Citations omitted; internal quotation marks omitted.) Id., 470-71 n.12.
      The defendant has not persuaded us that such circumstances exist or that we should deviate from our adherence to the well settled standard of review that both this court and our Supreme Court have applied to numerous claims, brought under both our state and federal constitutions, of improper instruction on the principle of reasonable doubt. See, e.g., State v. Velasco, 253 Conn. 210, 247, 751 A.2d 800 (2000); State v. Griffin, 253 Conn. 195, 206, 749 A.2d 1192 (2000). That is the standard of review that we shall employ.

       The court stated twice in its instruction: “Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.”

       In his request to charge, the defendant sought the following instruction: “Proof beyond a reasonable doubt must ... be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs.”

       The defendant sought that instruction in his request to charge.

       See J. Pellegrino, Connecticut Selected Jury Instructions: Criminal (3d Ed. 2001) § 2.8, p. 38 (model jury instruction on reasonable doubt).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KENNOLLEY BROOKS
    (AC 23994)
    Flynn, West and Hennessy, Js.
    Argued February 17 —
    officially released March 16, 2004

      James B. Streeto, assistant public defender, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Cathryn J. Krinitsky, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The trial court’s judgment of conviction is reversed. The defendant, Kennolley Brooks, appeals from the judgment of conviction rendered after he entered a plea of guilty to the crimes of possession of a controlled substance in violation of General Statutes § 21a-279 (c) and breach of the peace in violation of General Statutes (Rev. to 2001) § 53a-181. The defendant claims, inter alia, that his constitutional rights were violated by the court’s insufficient explanation to him of the rights that he waived upon entering the guilty plea.

“The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards. Douglas v. Alabama, [380 U.S. 415, 422, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965 )]" Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). “Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, [378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)]. Second, is the right to trial by jury. Duncan v. Louisiana, [391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968)]. Third, is the right to confront one’s accusers. Pointer v. Texas, [380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965)]. We cannot presume a waiver of these three important federal rights from a silent record.” Boykin v. Alabama, supra, 243.

The defendant contends, and the state concedes, that the court gave insufficient advice to the pro se defendant regarding two of his core Boykin rights, namely, his right to confront the state’s witnesses against him and his privilege against self-incrimination. Without a record indicating that he understood those rights and voluntarily waived them, the conviction cannot stand.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.


author: WEST, J.

text:
    STATE OF CONNECTICUT v. RAYNOR ROBINSON
    (AC 23576)
    Flynn, West and DiPentima, Js.
    Argued January 6 —
    officially released March 16, 2004

      William D. O’Connor, assistant public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Terri L. Sonneman, assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Raynor Robinson, appeals from the judgment of the trial court revoking his probation and imposing a sentence of thirty-eight months incarceration. On appeal, he claims that the court improperly allowed the state to present evidence at his probation revocation hearing that was not alleged in the arrest warrant affidavit, which he asserts violated his constitutional due process rights. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. Following his conviction of larceny and assault, the defendant was released on March 28,2000, from incarceration and began his period of probation. On April 23, 2002, an arrest warrant for violation of probation was issued for the defendant, and the attached affidavit referred to the fact that he had been arrested twice during his term of probation. One of those arrests occurred on December 17, 2001, on a charge of possession of less than four ounces of marijuana. On July 16, 2002, the state provided the defendant with written notice of its intent to rely on other acts of misconduct in the probation revocation hearing, including an alleged April 11, 2002 beating of a child. On July 16, 2002, the defendant was found in violation of his probation on the basis of criminal offenses with which he was charged on December 17, 2001, and April 11, 2002. The court committed the defendant to the custody of the commissioner of correction for thirty-eight months. This appeal followed.

The only issue raised by the defendant on appeal is whether the court improperly allowed the state to present evidence at his probation revocation hearing of additional acts of misconduct that were not alleged in the April 23, 2002 arrest warrant affidavit. Specifically, he argues that he received no notice that any additional arrests or allegations of misconduct would be presented at his July 16, 2002 hearing until the day before it occurred. The defendant argues that the late arrival of the written notice and the absence of those additional acts of misconduct from the arrest warrant affidavit deprived him of a sufficient opportunity to prepare a defense and a fair hearing in violation of his due process rights. We cannot agree.

The defendant concedes that he did not preserve his claim at trial and therefore requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

We note at the outset that, on appeal, the defendant does not challenge the court’s conclusion that his actions with respect to the December 17, 2001 drug possession arrest constituted an independent violation of his probation. Because he does not contest the court’s finding that he violated his probation on the basis of the drug possession charge, “it is unnecessary to address the defendant’s argument that he was not afforded adequate notice that he faced probation revocation” on additional grounds that were not alleged in the arrest warrant affidavit. State v. Maye, 70 Conn. App. 828, 838, 799 A.2d 1136 (2002). The drug possession charge, standing alone, provided a sufficient basis to revoke his probation. The defendant concedes that he received adequate notice from the April 23, 2002 arrest warrant affidavit that the drug possession arrest would be considered at his revocation hearing.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court specifically found that “the state has shown beyond a fair preponderance of the evidence that on December 17, 2001, this defendant possessed a quantity of marijuana in the town of Manchester at the area of South Main Street and Interstate 384, based on the testimony of Officer Michelle Rice [of the Manchester police department] concerning the defendant, his proximity in the particular vehicle [and] the quantities recovered by the fellow officer .... So, therefore, the court would find that the defendant has, in fact, violated his probation by the commission of various criminal acts during the period of probation.” (Emphasis added.)

       The defendant argues that if the court had barred the testimony concerning the alleged April 11, 2002 child beating, the arresting officer’s testimony concerning the December 17, 2001 drag possession arrest would have been the only evidence that the defendant may have violated his probation. As previously stated, however, the court found that the defendant violated his probation as a result of his actions on December 17, 2001, alone. Because, as a condition of his probation, the defendant was prohibited from violating any state or federal criminal law, the court had sufficient grounds to revoke his probation on the basis of its finding that he had unlawfully possessed marijuana on December 17, 2001.


text:
    STATE OF CONNECTICUT v. LUIS ROSARIO
    (AC 23928)
    Foti, Bishop and West, Js.
    Argued January 9 —
    officially released March 16, 2004

      Joseph G. Walsh, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Corvine L. Klatt, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Luis Rosario, appeals from the sentence review division’s denial of his motion to reargue and request to reconsider his application for sentence review. We dismiss this appeal as being outside the jurisdiction of this court.

The following facts and procedural history are relevant to our decision. On January 23, 2000, a pedestrian was struck and killed by a vehicle that was driven from the scene without stopping. Approximately twenty minutes after the accident, the defendant turned himself in to the police and admitted that he was the driver of the vehicle. The defendant was charged with manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b, manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1) and evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (a). The defendant was convicted of evasion of responsibility in the operation of a motor vehicle and sentenced to ten years incarceration, execution suspended after eight years, and five years probation. Thereafter, the defendant filed an application for sentence review, which was heard by a three judge panel. The panel affirmed the defendant’s sentence. The defendant then filed a motion to reargue and request to reconsider his application for sentence review. Two members of the original three judge panel denied his motion. The defendant filed a motion requesting the panel to articulate its reasons for denying his motion for sentence review. That motion also was denied. He then appealed to this court, claiming that the sentence review division improperly refused to entertain his motion to reargue and request to reconsider.

General Statutes § 51-196 provides in relevant part: “The decision of the review division in each case shall be final . . . .” Our Supreme Court has interpreted that provision to mean that “neither the state nor the defendant may appeal from the decision of the sentence review division . . . .” (Citation omitted.) State v. Nardini, 187 Conn. 109, 117, 445 A.2d 304 (1982). “A decision by the [sentence review division] that a defendant is not entitled to the review procedure is a . . . nonappealable final judgment, [but] ... is reviewable under a writ of error.” (Internal quotation marks omitted.) Morrison v. Commissioner of Correction, 57 Conn. App. 145, 147-48, 747 A.2d 1058, cert. denied, 253 Conn. 920, 755 A.2d 215 (2000).

The appeal is dismissed.

       On appeal, the defendant also claims that it was improper for only two of the original three judges to decide his motion to reargue and his request to reconsider his appeal. Because we do not have jurisdiction over this appeal, we do not address that issue.

       We discern no merit to the defendant’s claim that his appeal was filed from the denial of his motion, rather than from the decision of the sentence review division affirming his sentence. An adverse ruling may be reversed only by way of a writ of error.


text:
    STATE OF CONNECTICUT v. DANIEL PEREZ

    (AC 23457)
    West, DiPentima and McLachlan, Js.

      Argued September 18, 2003 —
    officially released March 23, 2004

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

      Rita M. Shair, senior assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and, on the brief, Maxine V. Wilensky, assistant state’s attorney, for the appellee (state).

       This opinion supersedes the opinion of this court in State v. Perez, 80 Conn. App. 354, 835 A.2d 84 (2003), which was published December 2, 2003.

       Associate Judges Thomas G. West, Alexandra D. DiPentima and C. Ian McLachlan heard this case initially on September 18, 2003.

   Opinion

WEST, J.

The defendant, Daniel Perez, filed a motion requesting that this court reconsider en banc our decision in State v. Perez, 80 Conn. App. 354, 835 A.2d 84 (2003). Although the court denied the defendant’s motion for reconsideration en banc, this panel decided to grant reconsideration, sua sponte, and to publish this opinion in place of State v. Perez, supra, 354, for the purpose of clarifying our previous decision. We once again affirm the judgment of the trial court.

The defendant appeals from the judgment of conviction rendered by the trial court subsequent to his plea of nolo contendere to the charge of assault in the first degree in violation of General Statutes § 53a-59 (a) (3). On appeal, the defendant claims that the court improperly (1) denied his motion to dismiss due to selective prosecution and (2) denied his request for an eviden-tiary hearing on the same issue. The defendant asserts that the court’s decisions were improper because he made a prima facie showing that both prongs of the test for selective prosecution were satisfied. We are not persuaded.

At the oral argument on the defendant’s motion to dismiss and request for an evidentiary hearing, the defendant made an offer of proof. The offer of proof contained the following documents: police reports from the accident, state and local police pursuit policies, the state’s brief from the case of State v. Scribner, 72 Conn. App. 736, 805 A.2d 812 (2002), and a notice of intent to sue and civil complaint with which the guardian of the defendant’s victim brought suit against the city of Meriden and several Meriden police officers. The court accepted the defendant’s offer of proof “as being, in fact, the circumstances that exist, the police report, the fact that the police officers in the city of Meriden have been sued by the family of the victim, [and] the high speed pursuit policies of both the State and Meriden.” After “accepting . . . every bit of [his] offer of proof,” however, the court concluded that it was “quite clear in [its] mind” that the defendant had not made out a prima facie case of selective prosecution. Accordingly, the court denied his motion to dismiss and his request for an evidentiary hearing.

The following relevant facts were contained in the defendant’s offer of proof. On May 28, 2000, the Berlin police department attempted to stop and approach the vehicle being driven by the defendant after discovering that it was displaying a stolen marker plate. A Berlin police officer stopped the vehicle, and, as he approached the vehicle, the defendant sped away in an apparent attempt to flee. The officer pursued the vehicle to no avail. As the chase neared the Meriden town line, the Berlin police department notified the Meriden police department of the chase and of the fact that the defendant was approaching the town line. The Berlin police department abandoned the chase when the defendant reached Meriden.

Once the defendant was in Meriden, a Meriden police officer discovered the defendant driving southbound in a northbound lane. The officer observed the defendant changing back and forth between the northbound and southbound lanes, almost striking vehicles head on and forcing northbound vehicles off the road. The officer estimated that the defendant had been driving in that manner for approximately four miles since the Berlin police department abandoned its pursuit. At that time, a second pursuit began between the Meriden police officer and the defendant, who failed to yield and continued to flee in a dangerous maimer.

Throughout the pursuit, the defendant drove approximately sixty to seventy miles per hour through a densely populated thirty-five mile per hour zone. The defendant repeatedly drove on the wrong sides of the road and median, forcing traffic onto the sidewalk and into oncoming traffic. Several Meriden police officers assisted with the pursuit by attempting to warn oncoming traffic of the defendant and by trying unsuccessfully to guide him onto a highway and away from the densely populated area.

The pursuit ended when the defendant, while traveling southbound in a northbound lane, struck a vehicle whose driver was attempting to turn left. The driver of the vehicle suffered severe personal injuries, including massive head and brain injuries, neurological injuries, and massive pelvic and internal injuries. At the scene of the crash, the Meriden police officers found the defendant trying frantically to escape the vehicle in an apparent attempt to flee on foot. The officers also discovered two passengers in the defendant’s vehicle, one of whom was yelling at the defendant for having ignored the passenger’s requests to stop the chase.

The defendant was charged with two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (3), and two counts of assault in the second degree in violation of General Statutes § 53a-60 (a) (2) and (3), as well as with numerous motor vehicle violations. The defendant filed a motion to dismiss the prosecution on the ground of selective prosecution and requested an evidentiary hearing on the issue. The court denied both the defendant’s motion and his hearing request. The defendant thereafter pleaded nolo contendere to one count of assault in the first degree in violation of § 53a-59 (a) (3) and was sentenced to twenty years imprisonment, execution suspended after ten years. The defendant’s plea was conditional on his right to appeal, pursuant to General Statutes § 54-94a and Practice Book § 61-6, from the denial of his motion to dismiss. The defendant appealed to this court.

I

The defendant first claims that the court improperly denied his motion to dismiss on the ground of selective prosecution because (1) the Meriden police officers were similarly situated relative to him but were not prosecuted, and, therefore, he was selectively prosecuted, and (2) he was the victim of invidious discrimination on the basis of his status as a nonpolice officer.

“We must first consider the standard of review where a claim is made that the court failed to grant a motion to dismiss. Our standard of review of a trial court’s . . . conclusions of law in connection with a motion to dismiss is well settled. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts .... Thus, our review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) State v. Vitale, 76 Conn. App. 1, 14, 818 A.2d 134, cert. denied, 264 Conn. 906, 826 A.2d 178 (2003).

The test for selective prosecution is well settled. “A defendant claiming discriminatory prosecution must show (1) that others similarly situated have generally not been prosecuted and that he has been singled out and (2) that he is the victim of invidious discrimination based on impermissible considerations such as race, religion, or the exercise of a constitutionally protected right.” (Internal quotation marks omitted.) State v. Angel C., 245 Conn. 93, 127, 715 A.2d 652 (1998). In determining whether two groups are similarly situated for equal protection purposes, we must look for “persons situated similarly in all relevant aspects . . . .” (Emphasis in original; internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 402, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000). “[W]e have traditionally accorded the state’s attorney broad discretion in determining what crime or crimes to charge in any particular situation. . . . And unless constitutional or other compelling reasons require otherwise, we abstain from setting policy for the performance of the prosecutorial function.” (Citation omitted; internal quotation marks omitted.) State v. Ellis, 197 Conn. 436, 478, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990).

A

We first address the issue of whether the Meriden police officers and the defendant were “similarly situated” in satisfaction of prong one of the test for selective prosecution. In support of his claim as to that prong, the defendant argues that the officers, as well as the defendant, were violating the law by speeding and driving on the wrong side of the road, that the officers are not immune from criminal liability because the chase violated state and local pursuit guidelines, and that the officers were the proximate cause of the accident because had they not pursued him, no accident would have resulted. To make that determination, we must consider and weigh the similarities and differences between the two groups to determine whether they are situated similarly in all relevant aspects. See Thomas v. West Haven, supra, 249 Conn. 402.

In this case, the relevant differences between the groups far outweigh the relevant similarities. The only similarity shared by the defendant and the Meriden police officers is the fact that both groups exceeded the speed limit and drove into oncoming traffic during a police pursuit. Looking now to their relevant differences, we have, on the one hand, a criminal suspect in possession of stolen property, fleeing from law enforcement officials, leading officers from two police departments on a high speed chase through a densely populated area and into oncoming traffic. We have, on the other hand, the Meriden police officers, acting in their official capacities, attempting to apprehend a fleeing suspect in possession of stolen property. The relevant differences, without question, far outweigh the relevant similarities.

In addition, the Meriden police officers, unlike the defendant, were authorized by General Statutes § 14-283 (a) and (b) to exceed the posted speed limit and to disregard regulations governing the direction of movement in their pursuit of a fleeing law violator. Although it is possible to exceed that authority; see State v. Scribner, supra, 72 Conn. App. 742; that issue is not before us. It is well settled that we do not find facts; Bria v. Ventana Corp., 58 Conn. App. 461, 466, 755 A.2d 239 (2000); and therefore it is not this court’s role to make a determination, sua sponte, of whether the police officers exceeded their statutory authority. It is only for this court to decide whether the defendant and the Meriden police officers were “similarly situated” for equal protection purposes. We hold, without hesitation, that they were not.

B

The defendant further claims that he has satisfied the second prong of the test for selective prosecution. In support of his claim, the defendant asserts that he was the victim of invidious discrimination because “the unjustifiable standard in the present case . . . concerned color, but not the color of skin. . . . [T]he people making the decisions either wear a blue uniform or identify with those who do and work closely with them .... It is because of the blue uniform that the state chose not to prosecute said police officers while it is because the defendant is not a police officer that the state chooses to prosecute him.” That claim warrants little discussion.

It is ludicrous to suggest that the entire population of nonpolice officers in the state of Connecticut is discriminated against on the basis of an “impermissible consideration” comparable to race and religion. The defendant’s contention that he was the victim of invidious discrimination on the basis of his status as a nonpo-lice officer fails without question. We conclude that the defendant has not satisfied either prong of the test for selective prosecution.

II

The defendant next claims that the court improperly denied his request for an evidentiary hearing to prove selective prosecution. In support of his claim, the defendant asserts that he had a due process right to introduce evidence to prove his defense.

We review a court’s decision not to hold an eviden-tiary hearing on the issue of selective prosecution for abuse of discretion. United, States v. Fares, 978 F.2d 52, 59 (2d Cir. 1992). “Our review of the trial court’s exercise of its discretion is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did. . . . Every reasonable presumption will be given in favor of the trial court’s ruling. ... It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion.” (Internal quotation marks omitted.) Board of Education v. East Haven Education Assn., 66 Conn. App. 202, 216, 784 A.2d 958 (2001).

Neither this court nor our Supreme Court has yet determined under what circumstances a defendant claiming selective prosecution is entitled to an eviden-tiary hearing. We believe that the better view is that “[n]o evidentiary hearing ... is required unless the [trial] court, in the exercise of its discretion, finds that the required prima facie showing has been made as to both elements of the test.” St. German of Alaska Eastern Orthodox Catholic Church v. United States, 840 F.2d 1087, 1095 (2d Cir. 1988). Consequently, we hold that an evidentiary hearing to prove selective prosecution is not a matter of right and is not available to every defendant, but rather is to be granted at the discretion of the trial court following a prima facie showing by the defendant that a legitimate claim exists with regard to both prongs of the selective prosecution test.

In this case, the court considered the defendant’s offer of proof and concluded, as a matter of law, that he had not and could not make a prima facie showing of selective prosecution. The court stated: “[E]ven accepting . . . every bit of your offer of proof, I do not believe, and I frankly feel that it’s quite clear in my mind, that there is no showing here that rises to the level of entitling you to a hearing.” On the basis of the defendant’s offer of proof, the court concluded that the defendant had not “reached the threshold” with regard to either prong.

Giving every reasonable presumption in favor of the court’s ruling, we find that the court’s conclusion was reasonable in that the defendant had not made a prima facie showing with regard to either prong of the selective prosecution test and as such was not entitled to a hearing. Even if we assume arguendo that everything in the defendant’s offer of proof was true, it would not constitute a defense to the prosecution. Had he been afforded a hearing, nothing in his offer of proof indicated that he could have proven that he was “similarly situated” relative to the Meriden police officers in satisfaction of prong one or that his status as a nonpolice officer was an “impermissible consideration” in satisfaction of prong two. We agree with the court that “[w]hether or not the police are negligent as compared to whether or not there is selective prosecution, those are completely different criteria, two different criteria entirely . . . .” Although the defendant may have been prepared to prove that the officers were negligent in their pursuit of him, such a showing would have been wholly unrelated to whether there was selective prosecution.

The judgment is affirmed.

In this opinion the other judges concurred.

       To prove a claim of selective prosecution, a defendant must show “(1) that others similarly situated have generally not been prosecuted and that he has been singled out and (2) that he is the victim of invidious discrimination based on impermissible considerations such as race, religion, or the exercise of a constitutionally protected right.” (Internal quotation marks omitted.) State v. Angel C., 245 Conn. 93, 127, 715 A.2d 652 (1998).

       The guardian of the person and estate of the victim brought suit against the city of Meriden and several members of the Meriden police department. The complaint alleged that the personal injuries and losses suffered by the victim were caused by the negligence and carelessness of the defendants. That case, Hunter v. Meriden, Superior Court, judicial district of Waterbury, Docket No. CV-01-0179745S (August 20, 2001), currently is pending on the Waterbury complex litigation docket.

       The defendant argues that the court, by accepting his offer of proof, accepted as true the fact that the Meriden police officers caused the accident. The court was quite clear, however, that by accepting the defendant’s offer of proof, it accepted as “the circumstances that exist . . . the fact that the police officers in the city of Meriden have been sued by the family of the victim (Emphasis added.) The court accepted as true the fact that the action had been filed but made no factual determination as to the accuracy of the allegations regarding causation.

       Although the defendant asserts that the court made “findings of fact” by accepting as true his offer of proof, that assertion is an inaccurate statement of the law. When hearing a motion to dismiss, “the court is confined to determining whether the . . . evidence, if believed and if given the benefit of all favorable inferences, makes out a prima facie case. . . . The court, on such a motion, may not make findings of fact. . . .” (Citation omitted; emphasis added.) Thomas v. West Haven, 249 Conn. 385, 399, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000). Although that case applies to a civil motion for a judgment of dismissal pursuant to Practice Book § 15-8, we conclude that the rationale also applies to a motion to dismiss in a criminal case. Accordingly, we conclude that the court did not make findings of fact simply because it accepted as true, for purposes of determining whether the defendant had made out aprima facie case, the information contained in his offer of proof.

       General Statutes § 14-283 (a) provides in relevant part: “ ‘Emergency vehicle’, as used in this section, means . . . any state or local police vehicle operated by a police officer ... in the pursuit of fleeing law violators . . . while in the course of such officer’s employment and while responding to an emergency call.”
      General Statutes § 14-283 (b) provides in relevant part: “The operator of any emergency vehicle may ... (3) exceed the posted speed limits or other speed limits imposed by or pursuant to section 14-218a or 14-219 as long as such operator does not endanger life or property by so doing, and (4) disregard statutes, ordinances or regulations governing direction or movement or turning in specific directions.”

       In St. German of Alaska Eastern Orthodox Catholic Church v. United States, supra, 840 F.2d 1094-95, the United States Court of Appeals for the Second Circuit addressed a claim of discriminatory investigation rather than a claim of selective prosecution. The court, however, subjected the discriminatory investigation claim to the test for selective prosecution. Id., 1095.


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. MICHAEL JENKINS
    (AC 23437)
    Bishop, McLachlan and Mihalakos

      Argued October 29, 2003 —
    officially released March 23, 2004

      Claudia A. Baio, with whom, on the brief, was Richard D. Tulisano, for the appellant (defendant).

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom were Tracy Cass, certified legal intern, and, on the brief, Scott J. Murphy, state’s attorney, and Mary Rose Pálmese, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Michael Jenkins, appeals from the judgment of conviction rendered by the trial court subsequent to his plea of nolo contendere to the charge of possession of narcotics with intent to sell in violation of General Statutes § 2 la-277 (a). On appeal, the defendant claims that the court improperly denied his motion to suppress evidence pursuant to Practice Book § 41-12, General Statutes §§ 54-33f, 54-33k and 54-331, article first, § 7, of the constitution of Connecticut, and the fourth and fourteenth amendments to the United States constitution in that the court improperly concluded that (1) there was probable cause to place him under arrest and that the ensuing search was, therefore, lawful as a search incident to an arrest, and (2) the purported strip search of him that was conducted by the police did not rise to the level of a fourth amendment violation. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. During the week of March 6,2000, Detective Jerry Chrostowski of the New Britain police department received information from a confidential informant that the defendant was involved with drug trafficking. The informant provided Chrostowski with the defendant’s pager number. On March 11, 2000, Chrostowski called the pager number on a police department telephone equipped with caller identification technology.

Chrostowski’s page was returned within five minutes. Chrostowski then contacted the Southern New England Telephone Company, which traced the number to 41 Harvard Street in New Britain. Chrostowski was familiar with the defendant and had personal knowledge that he resided at that address. Chrostowski identified himself as “Chris,” and the caller referred to himself as “Mike.” Chrostowski ordered ten packets of heroin from the defendant for $80, and the men agreed to meet at East Side Pizza in New Britain to complete the sale. Chrostowski relayed that he would be wearing a baseball cap.

While Chrostowski waited outside of the restaurant, a New Britain police officer informed him that a black male was exiting his residence and going toward the restaurant. The defendant began to approach Chrostow-ski and came within seven feet of him when he suddenly stopped upon seeing the officer’s face. The defendant was then placed under arrest by several New Britain police officers and charged with attempt to sell narcotics.

The defendant was handcuffed and taken to the side of the restaurant to be searched. Chrostowski seized the defendant’s beeper, which contained the number from which Chrostowski had paged him. Officer Christopher Brody searched the defendant and felt an object in the defendant’s buttocks inconsistent with the male anatomy. Brody pulled the defendant’s pants and underwear away from his body and discovered glassine packets. The packets were seized and tested positive for heroin and crack cocaine.

The defendant later was charged in a substitute information with possession of narcotics with the intent to sell in violation of § 21a-277 (a). On September 12, 2000, the defendant filed a motion to suppress the evidence seized from him, which was denied. The defendant then entered a plea of nolo contendere under General Statutes § 54-94a. The defendant was sentenced to a three year term of imprisonment to run consecutively to a prior sentence. This appeal followed.

I

A

The defendant first claims that the court improperly found that there was probable cause for the police to have placed him under arrest. He reasons that the subsequent search was, therefore, not lawful as a search incident to an arrest. Specifically, the defendant claims that probable cause to arrest could not have existed because a reasonable person, under the circumstances, would not have assumed that he was necessarily about to sell narcotics. We disagree.

The defendant claims that simply the fact that Chros-towski paged him to order drugs and that he told Chros-towski to meet him at the restaurant does not reasonably lead to the conclusion that he was actually going to sell any drugs. He argues that it is not unreasonable to assume that he went to the restaurant solely to find out the identity of the potential buyer. He maintains that the police did not give him the opportunity to commit any crime.

We first set forth the standard of review and legal principles that guide our analysis. “Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” State v. Bjorklund, 79 Conn. App. 535, 548, 830 A.2d 1141 (2003).

“It is well established . . . that a warrant is not required when a search is conducted incident to a lawful custodial arrest. . . . New York v. Belton, 453 U.S. 454, 457, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981).” State v. Clark, 255 Conn. 268, 291, 764 A.2d 1251 (2001). “When an arrest is made, it is reasonable for a police officer to search for, and seize, any weapons or evidence within the immediate control of the arrested person in order to ensure officer safety and prevent the destruction or concealment of evidence.” State v. Clark, supra, 292.

“General Statutes § 54-lf (b) authorizes a police officer to conduct a warrantless arrest of any person who the officer has reasonable grounds to believe has committed or is committing a felony. The phrase reasonable grounds to believe is synonymous with probable cause. ” (Internal quotation marks omitted.) State v. Cooper, 65 Conn. App. 551, 564-65, 783 A.2d 100, cert. denied, 258 Conn. 940, 786 A.2d 427 (2001).

“In order for a warrantless felony arrest to be valid, it must be supported by probable cause. . . . The determination of whether probable cause exists under the fourth amendment to the federal constitution, and under article first, § 7, of our state constitution, is made pursuant to a totality of circumstances test. . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed. . . . The probable cause test then is an objective one. . . . We consistently have held that [t]he quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. . . . The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence. . . . [P]roof of probable cause requires less than proof by a preponderance of the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Clark, supra, 255 Conn. 292-93.

In the present case, there was probable cause for the police to arrest the defendant under the totality of the circumstances. Chrostowski contacted the defendant on the basis of information from a confidential informant that the defendant was engaged in drug trafficking. The informant was reliable because information from him had led to several previous convictions. Chrostowski corroborated the information by calling the pager number that was given to him by the informant and confirming that the number from which his page was returned was that of the defendant’s residence. In addition, Chrostowski had personal knowledge that the 41 Harvard Street the address from which the defendant called was in fact the defendant’s residence.

“In State v. Velasco [248 Conn. 183, 194-95, 728 A.2d 493 (1999)] . . . we held that information supplied by a reliable informant, by itself, may be sufficient to establish probable cause, and that the information need not be corroborated through independent investigation.” (Emphasis in original.) State v. Respass, 256 Conn. 164, 178-79, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001). “[Statements made by an informant are entitled to greater weight if corroborated by evidence independently gathered by the police.” (Internal quotation marks omitted.) State v. Mordowanec, 259 Conn. 94, 110, 788 A.2d 48, cert. denied, 536 U.S. 910, 122 S. Ct. 2369, 153 L. Ed. 2d 189 (2002).

Moreover, Chrostowski personally negotiated with the defendant for the sale of narcotics. The defendant verbally agreed to sell ten packets of heroin to Chros-towski for $80 and arranged to meet him at East Side Pizza. In addition, another officer observed the defendant leaving his residence and going toward the restaurant to meet Chrostowski.

The defendant also argues that the police did not afford him the opportunity to actually commit a crime. The defendant was, however, arrested on a charge of attempt to sell narcotics by a person who is not drug-dependent in violation of General Statutes §§ 21a-278 (b) and 53a-49 (a) (2). Pursuant to § 53a-49 (a) (2), to be guilty of attempt, an individual must take a “substantial step in a course of conduct planned to culminate in his commission of the crime.” The defendant arranged for the sale of heroin to Chrostowski, left his residence and was going in the direction of the restaurant to meet with Chrostowski. Such evidence was sufficient to constitute the requisite “substantial step.”

On the basis of the previously discussed evidence, we conclude that the New Britain police could have reasonably believed that the defendant was committing a felony, as stated in § 54-lf (b). We therefore conclude that the warrantless arrest of the defendant was lawful.

B

Having determined that the warrantless arrest of the defendant was lawful, we now turn to the ensuing search and seizure of evidence. “[I]f the defendant’s arrest was lawful, the subsequent warrantless search . . . also was lawful.” State v. Velasco, supra, 248 Conn. 189. It is well settled that “[o]ne recognized exception to the warrant requirement applies when a search is conducted incident to a lawful custodial arrest. . . . This exception permits a police officer to conduct a full search of an arrestee and to seize evidence as well as weapons.” (Citations omitted.) State v. Trine, 236 Conn. 216, 235-36, 673 A.2d 1098 (1996). In light of our determination that the arrest of the defendant was proper, we also conclude that the ensuing search was lawful as a search incident to a lawful arrest.

II

The defendant’s second claim is that the court improperly found that the purported strip search of the defendant did not rise to the level of a fourth amendment violation. The defendant reasserts his argument that the police did not have probable cause under the fourth amendment to arrest him and that the search was therefore necessarily improper. In the alternative, he claims that the search constituted a strip search under § 54-33k because his pants and underwear were pulled away from his body for Brody to retrieve the glassine packets. He then argues that the officers who conducted that purported strip search did not follow the procedure outlined for strip searches in § 54-33l.

The defendant goes on to claim that there is necessarily a connection between the strip search statutes and the fourth amendment, and that the evidence obtained in violation of § 54-33k warrants exclusion, insisting that the legislature would not have enacted a statute for which there were no consequences for its violation. He also maintains that because the legislature framed § 54-33Z in such a way as to limit searches and seizures, it follows that it considered a search in violation of the statutes to be an unreasonable search under the fourth amendment. We disagree.

A

This claim presents a question of statutory interpretation. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 544, 816 A.2d 562 (2003).

We conclude that the search conducted in this case was not a strip search for the purposes of applying §§ 54-33k and 54-33/. Sections 54-33k and 54-33/ do not address those strip searches that are conducted incident to a lawful arrest on a felony charge. The only reference to a search incident to an arrest is found in § 54-33/ (a), which specifically involves motor vehicle violations and misdemeanors. The remaining subsections of the statute, which impose various procedural requirements necessary to conduct a strip search, make no mention of the type of sear ch conducted under the facts of this case.

The legislative history of those provisions supports that reading of the statutory language. “We will not impute to the legislature an intent that is not apparent from unambiguous statutory language in the absence of a compelling reason to do so.” Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 195, 663 A.2d 1001 (1995). Rather, “[w]e are bound to interpret legislative intent by referring to what the legislative text contains, not by what it might have contained. ” (Internal quotation marks omitted.) Winchester v. Northwest Associates, 255 Conn. 379, 388, 767 A.2d 687 (2001).

The legislative history of §§ 54-33k and 54-33Z reveals that those provisions were an attempt by the legislature to protect Connecticut citizens from groundless strip searches and a response to a proliferation of lawsuits against police departments for such searches. See 23 S. Proc., Pt. 5, 1980 Sess., pp. 1589, 1593. Comments made by various legislators reflect that the statutes explicitly allow for such strip searches when the officer has a reasonable belief, after conducting a patdown, that there may be a weapon or controlled substance. “This Bill would prohibit strip searches of any person arrested for a traffic or misdemeanor offense unless the case involves weapons or a controlled] substance or there is a reasonable belief such person is concealing a weapon or control [led] substance . . . .” (Emphasis added.) 23 S. Proc., Pt. 5, 1980 Sess., p. 1588, remarks of Senator Salvatore C. DePiano. Those statutes are, therefore, inapplicable to the factual scenario presented in this appeal.

B

The search conducted by Brody was akin to a strip search as those searches commonly are defined. It has been recognized that under the fourth amendment to the federal constitution, officers are permitted to strip-search an individual when, subsequent to a lawful arrest and patdown, they have a reasonable suspicion that the individual is carrying a weapon or contraband. See Cuesta v. School Board of Miami-Dade County, 285 F.3d 962, 969-70 (11th Cir. 2002); Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 716 (9th Cir. 1989); Sarnicola v. County of Westchester, 229 F. Sup. 2d 259, 270 (S.D.N.Y. 2002) (“[w]hile the [United States Court of Appeals for the] Second Circuit has not spoken directly to the appropriate test for the validity of a strip search incident to a felony arrest, this Court recently opined that the Court of Appeals would apply the particularized reasonable suspicion test to searches of felony arrestees as well”).

Accordingly, we adopt the reasonable suspicion standard for strip searches incident to a lawful felony arrest. “Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion.” (Emphasis added; internal quotation marks omitted.) State v. Wilkins, 240 Conn. 489, 496, 692 A.2d 1233 (1997). “Thus, [reasonable and articulable suspicion is . . . based not on the officer’s inchoate and unparticularized suspicion or hunch, but [on] the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” (Citation omitted; internal quotation marks omitted.) State v. Clark, supra, 255 Conn. 285, quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

A strip search requires independent analysis under the fourth amendment to determine whether the requisite reasonable suspicion exists. See Swain v. Spinney, 117 F.3d 1, 5 (1st Cir. 1997). Fourth amendment jurisprudence prohibits unreasonable searches incident to an arrest. See Amaechi v. West, 237 F.3d 356, 361 (4th Cir. 2001). In determining whether a search is reasonable under the fourth amendment, a court must consider “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). The test for reasonableness “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Id.

The search in this case was supported by reasonable suspicion because the officers involved reasonably could have believed that the defendant was concealing contraband on his person. Brody testified that he conducted a patdown of the defendant to search for both weapons and contraband. The defendant was going in the direction of the restaurant he and Chrostowski had designated as their meeting place. The defendant began to approach the officer and came within feet of him when he suddenly stopped upon seeing Chrostowski’s face. It was reasonable to assume that the defendant was meeting Chrostowski specifically for the purpose of selling drugs to the officer and that, therefore, he would have drugs on his person. Moreover, Brody clearly felt a bulge in the defendant’s buttocks inconsistent with the male anatomy during the patdown after the arrest. The existence of reasonable suspicion further was supported by the nature of the charge itself, namely, attempt to sell a narcotic substance. See Kennedy v. Los Angeles Police Dept., supra, 901 F.2d 716 (reasonable suspicion may be based on factors such as nature of the offense).

A custodial arrest gives rise to the authority to search, even if the arresting officer does not “indicate any subjective fear of the [defendant] or . . . suspect that [the defendant] was armed.” United States v. Robinson, 414 U.S. 218, 236, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). “The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial. ... It is the fact of the lawful arrest which establishes the authority to search, and ... in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a reasonable search under that amendment.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 234-35. It was, therefore, of no moment that Brody was searching for weapons or contraband.

We must also consider the manner in which the search was conducted. See Bell v. Wolfish, supra, 441 U.S. 559. Strip searches have been described as “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.” (Internal quotation marks omitted.) Swain v. Spinney, supra, 117 F.3d 6-7. “Indeed, a strip search, by its very nature, constitutes an extreme intrusion upon personal privacy, as well as an offense to the dignity of the individual.” (Internal quotation marks omitted.) Wood v. Clemons, 89 F.3d 922, 928 (1st Cir. 1996).

In this case, the manner in which the officers conducted the strip search struck the appropriate balance between “the need for the particular search” and “the invasion of personal rights . . . .” Bell v. Wolfish, supra, 441 U.S. 559. The officers took the defendant to the side of the restaurant, away from the street and out of public view. Brody did not require him to remove any of his clothing, but rather pulled his pants and underwear away from his body specifically to retrieve the glassine packets he discovered and suspected were there from the patdown of the defendant.

On the basis of the foregoing analysis, we hold that the court correctly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claims a violation of his rights under article first, § 8, of the constitution of Connecticut. “Because the defendant has not briefed his claim separately under the Connecticut constitution, we limit our review to the United States constitution. We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim . . . .” (Citation omitted; internal quotation marks omitted.) State v. Pepper, 79 Conn. App. 1, 5 n.4, 828 A.2d 1269, cert. granted on other grounds, 266 Conn. 919, 837 A.2d 801 (2003).

       General Statutes § 54-lf (b) provides: “Members of the Division of State Police within the Department of Public Safety or of any local police department or any chief inspector or inspector in the Division of Criminal Justice shall arrest, without previous complaint and warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony.”

       General Statutes § 53a-49 (a) provides: “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: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (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.”

       In making its determination of whether the defendant took the necessary “substantial step,” the court contemplated that that the defendant was carrying heroin on his person while walking toward the restaurant. We note that this evidence could not have been discovered until after the defendant was arrested and subsequently searched, and, therefore, that evidence properly was not considered as establishing probable cause for the arrest. We conclude that the consideration of that evidence by the court was harmless, as there was other evidence to support the court’s conclusion that the defendant’s actions constituted a “substantial step” pursuant to General Statutes § 53a-49 (a) (2).

       General Statutes § 54-33k provides: “For the purposes of this section and section 54-331, ‘strip search’ means having an arrested person remove or arrange some or all of his or her clothing or, if an arrested person refuses to remove or arrange his or her clothing, having a peace officer or employee of the police department remove or arrange the clothing of the arrested person so as to permit a visual inspection of the genitals, buttocks, anus, female breasts or undergarments used to clothe said anatomical parts of the body.”

       General Statutes § 54-33Í provides: “(a) No person arrested for a motor vehicle violation or a misdemeanor shall be strip searched unless there is reasonable belief that the individual is concealing a weapon, a controlled substance or contraband.
      “(b) No search of any body cavity other than the mouth shall be conducted without a search warrant. Any warrant authorizing a body cavity search shall specify that the search is required to be performed under sanitary conditions and conducted either by or under the supervision of a person licensed to practice medicine in accordance with chapter 370.
      “(c) All strip searches shall be performed by a person of the same sex as the arrested person and on premises where the search cannot be observed by persons not physically conducting the search or not absolutely necessary to conduct the search.
      “(d) Any peace officer or employee of a police department conducting a strip search shall (1) obtain the written permission of the police chief or an agent thereof designated for the purposes of authorizing a strip search in accordance with this section and section 54-33k and (2) prepare a report of the strip search. The report shall include the written authorization required by subdivision (1) of this subsection, the name of the person subjected to the search, the name of any person conducting the search and the time, date and place of the search. A copy of the report shall be provided to the person subjected to the search.
      “(e) Nothing in this section shall preclude prosecution of a peace officer or employee under any other provision of the general statutes.
      “(f) Nothing in this section shall be construed as limiting any statutory or common law rights of any person for purposes of civil action or injunc-tive relief.
      “(g) The provisions of this section and section 54-33k shall not apply when the person is remanded to a correctional institution pursuant to a court order.”

       Senator DePiano was one of two chairmen of the judiciary committee in 1980. The other chairman, Representative Richard D. Tulisano, echoed the statements of Senator DePiano. “Mr. Speaker, what this bill will do [is] restrict the manner in which strip searches may be conducted in that no person arrested for a motor vehicle violation or a misdemeanor can be strip searched . . . unless the arrest involves a weapon or a controlled substance and . . . there would be reasonable belief for an arresting officer to believe that an individual might be concealing a weapon o[r] controlled substances.” 23 H.R. Proc., Pt. 5, 1980 Sess., p. 1130, remarks of Representative Richard D. Tulisano.

       “A ‘strip search,’ though an umbrella term, generally refers to an inspection of a naked individual, without any scrutiny of the subject’s body cavities. A Visual body cavity search’ extends to visual inspection of the anal and genital areas. A ‘manual body cavity search’ includes some degree of touching or probing of body cavities.” Blackburn v. Snow, 771 F.2d 556, 561 n.3 (1st Cir. 1985).


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. LARRY SCALES
    (AC 23837)
    Dranginis, Flynn and McDonald, Js.
    Argued January 22 —
    officially released March 23, 2004

      Robert J. McKay, special public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Richard Morelli, supervisory assistant state’s attorney, Roseanne Wagner, senior assistant state’s attorney, and Carl Ajello III, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Larry Scales, appeals from the judgment of the trial court, rendered following the denial of his motion to withdraw his plea of guilty under the Alford doctrine, convicting him of the crime of possession of nar cotics in violation of General Statutes § 21a-279 (a). On the basis of the record before us, we conclude that the court did not abuse its discretion in denying the motion. Accordingly, we affirm the judgment of the court.

On August 2, 2002, the defendant pleaded guilty on separate informations to (1) possession of narcotics, (2) burglary in the third degree and (3) violation of probation, pursuant to a plea agreement. He appeals only from the judgment of conviction of possession of narcotics, to which he pleaded guilty under the Alford doctrine. On appeal, the defendant seeks reversal of this conviction and a remand to the trial court for further proceedings.

The defendant was scheduled to be sentenced on August 23,2002. On that day, he first sought to withdraw his guilty plea to the narcotics charge. The defendant, speaking for himself, stated that he would like to withdraw his plea because one of the police officers involved in his arrest had alleged falsely in the police report that the defendant had made a statement to him impheating another individual. The defendant denied that he had ever talked to the officer. The court stated that it did not view his allegation as a basis to withdraw the plea. The court nonetheless ordered that a special public defender be appointed and continued the sentencing to October 18, 2002.

Robert J. McKay, the defendant’s new counsel, appeared on October 18, 2002. Michael Wagner, the defendant’s original counsel, also was present and represented that it was his opinion that the defendant’s claims were not grounds for withdrawal of the plea. The court again continued sentencing.

On December 13, 2002, the defendant again appeared and was represented by attorney McKay. The court denied the motion to withdraw after additional argument and sentenced the defendant to the agreed upon term of imprisonment of five years to serve and four and one-half years of special parole. Two and one-half years of that sentence were for the crime of possession of narcotics, and the defendant appeals only from that judgment of conviction.

The following legal principles and standards inform our review of the court’s decision. Practice Book § 39-27 (4) permits a defendant to withdraw his plea if “[t]he plea resulted from the denial of effective assistance of counsel . . . .”

“[0]ur standard of review is abuse of discretion for decisions on motions to withdraw guilty pleas brought under Practice Book § 39-27. . . . Our case law holds that [a] claim of ineffective assistance of counsel is generally made pursuant to a petition for a writ of habeas corpus rather than in a direct appeal. . . . Section 39-27 [(4)] of the Practice Book, however, provides an exception to that general rule when ineffective assistance of counsel results in a guilty plea. A defendant must satisfy two requirements ... to prevail on a claim that his guilty plea resulted from ineffective assistance of counsel. . . . First, he must prove that the assistance was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law .... Second, there must exist such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance.” (Citation omitted; internal quotation marks omitted.) State v. Nelson, 67 Conn. App. 168, 177, 786 A.2d 1171 (2001). In addressing this second prong, the United States Supreme Court held in Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), that “to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id., 59. The resolution of this inquiry will largely depend on the likely success of any new defenses or trial tactics that would have been available but for counsel’s ineffective assistance. See id.

The defendant takes issue with whether his counsel properly represented him in advising him about the applicability of a portion of the police report. The pertinent portion of the report follows a narrative by two police officers who observed the defendant make a purchase from a heroin dealer whom they had been observing. It states: “[U]pon detaining [the defendant], he was very cooperative and stated he had just purchased a bag of heroin from the accused juvenile, then removed the small white wax paper bag stamped ‘One Way’, containing [a] yellowish white powder substance.” After earlier denying that his attorney had read the report to him, the defendant admitted to the court that this portion of the report had been read to him but claimed that his attorney had told him that this statement did not apply to him.

Certain additional facts are pertinent to our review. We first note that the court canvassed the defendant before accepting his plea. It ascertained that the defendant was making his plea pursuant to Alford. As a consequence, he was not required to admit the truth of the factual allegations that the state had made against him about the essential elements of each offense with which he was charged. North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The court determined that he wanted to plead guilty to all counts rather than to serve a longer sentence that could have followed a conviction after a trial. The defendant was advised, and stated that he understood, that he would have been exposed to a maximum sentence of twenty years if he had gone to trial and was convicted. This possible maximum sentence consisted of seven years on the narcotics possession charge, five years on the burglary charge and eight years on the violation of probation charge. The defendant said that he understood that by pleading guilty to all charges he would receive a total effective sentence of five year’s in prison followed by four and one-half years of special parole. He indicated that he had enough time to talk to his lawyer, was satisfied with his advice, had been advised of the elements of each crime, was pleading guilty voluntarily and was not relying on any other promises in making his plea. He acknowledged that he was giving up his right to trial and all of his trial rights. The defendant makes no challenge to the canvass.

A reason for the defendant’s concern about the section of the police report detailing his cooperation became apparent when he showed concern about retribution for identifying to the police the person from whom he had purchased the narcotics. He stated that “[t]his whole thing is endangering my life when he put stuff like that in there.” At the December 13, 2002 hearing, the court observed, “it was that single sentence ... or phrase that [the defendant] was cooperative that [the defendant] believed the failure to disclose . . . warranted a withdrawal of his plea.”

As communicated to the court by his new counsel, the defendant conceded that “his plea was voluntary.” The defendant asserts, however, that he did not have all the facts regarding what the state had for evidence. The defendant believed that he could have impeached the officer’s credibility if his case had gone to trial because he had not spoken to the officer.

In ruling on the defendant’s motion to withdraw, the court focused on the defendant’s claim that he had been wrongly advised. It stated that “even assuming the truth of it, namely that [defendant’s first counsel] having read the statement [attributing to the defendant], the admission of guilt, then said it doesn’t . . . apply to you, . . . the court does not find that that conduct, which is in essence the failure to disclose to [the defendant] additional evidence of his guilt, would warrant a finding that he . . . was in any way denied the effective assistance of counsel.”

We first observe that the defendant has failed to provide us with a record of properly admitted or sworn testimony before the trial court that would show any deficiency in his first counsel’s performance. It is the appellant’s duty to provide this court with an adequate record for review. Practice Book § 61-10. “To withdraw his guilty plea, the defendant must prove that counsel’s assistance was ineffective and that it was this ineffectiveness that rendered the guilty plea involuntary.” State v. Perez, 57 Conn. App. 385, 388, 748 A.2d 384 (2000).

The court held that even if the defendant’s unsworn assertions were assumed to be true, and his attorney had told him that the statement in the police report detailing the defendant’s cooperation with the police somehow did not apply to him, this was only additional evidence of guilt and did not deprive him of the effective assistance of counsel. We agree.

Although it may be incriminatory, a defendant’s cooperation or his identification of his drug source is not an element of narcotics possession. See General Statutes § 21a-279 (a). To convict the defendant of this crime, the state had to prove that the defendant, and not some other person, possessed a substance that was of a narcotic character with knowledge both of its narcotic character and the fact that he possessed it. See State v. Sanchez, 75 Conn. App. 223, 242, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 (2003). Even if the defendant had lacked full knowledge of the officers’ report indicating that he had cooperated with the police and identified the juvenile from whom he had purchased the heroin, the defendant was made aware of the state’s case against him, including the potential testimony of the two officers who had witnessed the purchase and the defendant’s exercise of dominion and control over the substance that was in his personal possession when he was arrested, which tested positive for narcotics. Furthermore, the record before us indicates that the defendant had a long criminal record, which would have been admitted into evidence to impeach him if he had gone to trial and testified. Therefore, there was little possibility of impeaching the police officer’s testimony.

It is unlikely that the defendant’s original counsel would have given different advice to the defendant about accepting the plea on the basis of the reference in the police report. This is so because there was other strong evidence of the defendant’s criminal possession of narcotics, which was unaffected by the disputed statement in the report. In the present case, the measure of whether the defendant would have gone to trial instead of pleading guilty under the Alford doctrine is the determination of the likelihood of success at trial of an attempt at impeaching the police officer. See Hill v. Lockhart, supra, 474 U.S. 59. The defendant has not made such a showing.

The judgment is affirmed.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (accused may consent voluntarily, knowingly, understandingly to imposition of prison sentence while refusing to admit participation in crime).