author: FLYNN J.

text:
    MAX HENRIQUEZ v. JOSE F. ALLEGRE
    (AC 21527)
    Foti, Flynn and Dupont, Js.
    Submitted on briefs November 1, 2001
    officially released February 19, 2002

      Nicholas W. Francis filed a brief for the appellant (plaintiff).

      Nicholas C. Varanes and Anita M. Varanes filed a brief for the appellee (defendant).
   Opinion

FLYNN J.

The plaintiff, Max Henriquez, appeals from the judgment of the trial court rendered following the granting of the defendant’s motion to dismiss. On appeal, the plaintiff claims that the court improperly concluded that his action, commenced pursuant to General Statutes § 52-592, was untimely. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the appeal. In January, 1997, the plaintiff commenced a timely action against the defendant, Jose F. Allegre, for personal injuries allegedly sustained by the plaintiff in a January 23, 1995 motor vehicle accident. In June, 1998, the trial court dismissed the plaintiffs action under its dormancy program for failure to prosecute with reasonable diligence. According to the court, notice of the dismissal issued on June 19, 1998. In footnote 3 of its memorandum of decision, the court stated that “[t]he file of the court for the initial action, Henriquez v. Allegre, Docket No. 478660, judicial district of Hartford-New Britain at New Britain, indicates that the court issued notice on June 19, 1998.”

We note that the record before us does not support the court’s finding that notice issued on June 19, 1998. Instead, the record indicates that although judgment was rendered on June 19, 1998, notice was not issued to the defendant until August 25, 1998. Indeed, in the defendant’s appellate brief, he states the following: “On or about June 19, 1998, the trial court entered a judgment of dismissal for failure to prosecute with reasonable diligence pursuant to Practice Book § 14-3. The court sent notice of the dismissal by court card dated August 25, 1998, informing counsel that a motion to open must be filed within four months of the date notice was sent pursuant to Practice Book § 17-4.” In support of those facts, the defendant provides a copy of the August 25, 1998 notice in the appendix to his appellate brief, which states: “Please be advised that this court entered a judgment of dismissal in the above entitled action on 06/19/98 for failure to prosecute said action with reasonable diligence, ([Practice Book §] 14-3). Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a motion to open judgment of dismissal must be filed within four months succeeding the date on which notice was sent ([Practice Book §] 17-4).”

Nowhere in the record is there any indication that the court issued an earlier notice or, assuming that an earlier one was issued, why the court determined that a second issuance of notice was necessary almost two and one-half months after the court had rendered judgment. The defendant claims that his counsel received the notice on August 27,1998, while the plaintiff claims that his counsel never received the notice. Unfortunately, we are unable to review the case file of the initial action because apparently it was destroyed pursuant to Practice Book § 7-10 sometime after the trial court presumably reviewed it. In light of our holding that the date notice issued does not control in determining whether an action was timely brought pursuant to § 52-592, however, it makes no difference to our analysis whether notice of the dismissal issued on June 19,1998, or August 25, 1998.

Subsequent to the June 19,1998 dismissal, the parties continued to communicate regarding the matter, including proceeding with settlement negotiations. On July 14, 1999, the plaintiff filed a certificate of closed pleadings, which the court returned to the plaintiff with a notation that the action had been dismissed. On August 11,1999, the plaintiff filed a motion to open the dismissal. For reasons not clear on the record, the court neither ruled on the motion nor held a hearing on the matter.

On July 21,2000, the plaintiff commenced the present action against the defendant pursuant to § 52-592, the accidental failure of suit statute. The defendant filed a motion to dismiss the action on the ground that it was untimely because it was not filed within one year of the dismissal of the first action as required by § 52-592. On December 12, 2000, the court granted the defendant’s motion and this appeal followed.

The plaintiff claims that the court improperly granted the defendant’s motion to dismiss. Specifically, he argues that the court incorrectly concluded that his action under § 52-592 was untimely. We agree with the plaintiff.

As a preliminary matter, we set forth the standard of review. “Our standard of review of a trial court’s findings of fact and conclusions of law in connection with a motion to dismiss is well settled. A finding of fact will not be disturbed unless it is clearly erroneous. . . . [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 [granting] of the motion to dismiss will be de novo. . . .

“A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.” (Citations omitted; internal quotation marks omitted.) Coughlin v. Waterbury, 61 Conn. App. 310, 314, 763 A.2d 1058 (2001).

An action brought pursuant to § 52-592 must be commenced “within one year after the determination of the original action . . . .’’In the present case, the court determined that this limitation period begins to run “when the notice of dismissal is actually issued by the court.” Applying this principle, the court concluded that the plaintiffs action under § 52-592 was untimely because it was commenced on July 21, 2000, more than one year after June 19, 1998, the date the court determined that notice of the dismissal of the original action was issued. The plaintiff claims that the court’s conclusion is incorrect because it disregards the issue of when he actually received notice of the dismissal. He argues that his present action was timely because he commenced it within one year of his receiving notice of the dismissal. The plaintiff alleges that he first received notice that the court had dismissed the original action on July 26,1999, when he received the return certificate of closed pleadings with the notation that the action had been dismissed. However, his counsel states in his August 28, 2000 affidavit that July 29, 1999, was the date of actual notice.

In rendering its decision, the court, relying on Morales v. Medina, Superior Court, judicial district of Hartford, Docket No. 590718 (November 3, 1999), and Russell v. Thomas O’Connor & Co., 42 Conn. App. 345, 347-48, 679 A.2d 420 (1996), rejected the plaintiffs argument that the date on which he actually received notice of the dismissal is relevant in the context of § 52-592. Although Morales and Russell stand for the proposition that the one year period in which to file a new action under § 52-592 begins when notice is issued that the original action has been terminated, neither case can be read to hold that when a plaintiff receives notice is not relevant in the determination of whether an action under § 52-592 is timely. Furthermore, we know of no case that addresses the issue of receipt of notice as it relates to § 52-592. Accordingly, this appeal appears to present an issue of first impression, that is, whether the failure of a plaintiff to receive timely notice of the dismissal of his original action extends the time within which the plaintiff may commence an action pursuant to § 52-592. We conclude that it does.

Section 52-592 “by its plain language, is designed to prevent a miscarriage of justice if the plaintiffs fail to get a proper day in court due to the various enumerated procedural problems.” Legassey v. Shulansky, 28 Conn. App. 653, 659, 611 A.2d 930 (1992). It was adopted “to avoid hardships arising from an unbending enforcement of limitation statutes. ... Its purpose is to aid the diligent suitor.” (Citations omitted; internal quotation marks omitted.) Rosario v. Hasak, 50 Conn. App. 632, 637, 718 A.2d 505 (1998). Indeed, our Supreme Court has long held that § 52-592 “is remedial and is to be liberally interpreted.” Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972). “Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts.” (Internal quotation marks omitted.) Isaac v. Mount Sinai Hospital, 210 Conn. 721, 733, 557 A.2d 116 (1989), quoting Gaines v. New York, 215 N.Y. 533, 539, 109 N.E. 594 (1915) (Cardozo, J.).

“It is axiomatic that the right to bring a new action under [§ 52-592] assumes that the parly who is to exercise the right be given the opportunity to know that the original action has been terminated.” Russell v. Thomas O’Connor & Co., supra, 42 Conn. App. 347-48. Our Supreme Court has stated that “[fundamental tenets of due process . . . require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses.” (Internal quotation marks omitted.) Kron v. Thelen, 178 Conn. 189, 193, 423 A.2d 857 (1979). Moreover, “[t]he guarantee of procedural due process requires that persons whose rights are to be affected have a right to notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” Langan v. Weeks, 37 Conn. App. 105, 118, 655 A.2d 771 (1995).

We have adhered to these due process principles in our decisions regarding the commencement of the statutory four month period for opening judgments. In those cases, we have held that the receipt of the notice, rather than its sending, triggers the four month period in question. Similarly, our Supreme Court in Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 590-91, 738 A.2d 135 (1999), held that “the ten day appeal period of [General Statutes] § 31-301 (a) is tolled when the aggrieved party establishes that, through no fault of his own, he did not receive notice of the [workers’ compensation] commissioner’s decision within ten days of the date that it was sent.” The court stated that “[i]n light of the obvious unfairness inherent in depriving an aggrieved party of the right to appeal the commissioner’s decision solely because of a failure of notice beyond that party’s control, we will not lightly presume that the legislature intended such a result.” Id., 588.

We see no reason to treat actions brought pursuant to § 52-592 any differently from these cases. Our construction merely requires that the applicable time period to commence an action under § 52-592 be construed in a manner that is consistent with constitutional due process. “It is a fundamental rule that, if its language permits, a statute will be construed so as to render it constitutionally valid.” Grega v. Warden, 178 Conn. 207, 210, 423 A.2d 873 (1979). We see nothing in § 52-592 that would preclude us from construing it so that a plaintiff who fails to receive timely notice of the dismissal of his original action is not barred from pursuing his action pursuant to § 52-592. Of course, the plaintiff still must commence his action under § 52-592 within one year after the date the court determines that he received notice of the dismissal. Moreover, our construction is in accord with our Supreme Court’s longstanding and principled view that the policy of our law is “to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” (Internal quotation marks omitted.) Coppola v. Coppola, 243 Conn. 657, 665, 707 A.2d 281 (1998).

In the present case, the court expressly concluded that the court issued notice of the dismissal on June 19,1998. However, it never made a finding with respect to when the plaintiff actually received notice of the dismissal. While it is true, as the defendant claims, that the court’s issuance of notice of the dismissal raises a presumption that the plaintiff received the notice, this presumption is rebuttable. See Habura v. Kochanowicz, 40 Conn. App. 590, 594, 672 A.2d 512 (1996) (“ ‘[s]uch a notation raises a presumption that notice was sent and received in the absence of a finding to the contrary’ ”). “Because the presumption is rebuttable, it follows that the plaintiff is entitled to a hearing to have an opportunity to present such rebuttal evidence.” Morelli v. Manpower, Inc., 34 Conn. App. 419, 423, 642 A.2d 9 (1994). Due process requires that a hearing be held in which the plaintiff is provided an opportunity to present evidence and to cross-examine adverse witnesses with respect to his claim that he did not receive notice of the judgment of dismissal until July 26,1999. See id., 423-24.

The judgment is reversed and the case is remanded for further proceedings to determine when the plaintiff received either actual or constructive notice of the dismissal, and whether he commenced his action under § 52-592 within one year after the date the court determines that he received such notice.

In this opinion the other judges concurred.

       General Statutes § 52-592 (a) provides in relevant part: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form ... the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . . .”

       When the plaintiff commenced the original action, his counsel was employed by Francis & Francis, P.C. While that action was pending, the plaintiffs counsel ended his employment with Francis & Francis, P.C. and began working for the Law Offices of Nicholas T. Kocian, LLC. The plaintiffs counsel claims that on October 17, 1997, he filed an appearance in lieu of his original appearance.

       The court dismissed the action pursuant to Practice Book § 14-3 (a), which provides in relevant part: “If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action pursuant to Section 11-1, or on its own motion, render a judgment dismissing the action with costs. . . .”

       Practice Book § 7-10 provides in relevant part: “The files in all civil . . . actions . . . which, before a final judgment has been rendered on the issues, have been terminated . . . by a judgment of dismissal or nonsuit when the issues have not been resolved on the merits or upon motion by any party or the court . . . may be destroyed upon the expiration of one year after such termination or the rendition of such judgment.”

       The defendant also sought to dismiss the action on the ground that it was “not properly brought pursuant to . . . General Statutes § 52-592.”

       We note that although a motion to dismiss may not be the proper procedural vehicle for asserting that an action is not saved by General Statutes § 52-592, our Supreme Court has held that a trial court may properly consider a motion to dismiss in such circumstances when the plaintiff does not object to the use of the motion to dismiss. Capers v. Lee, 239 Conn. 265, 269-70 n.9, 684 A.2d 696 (1996). In the present case, because the plaintiff did not object to the use of a motion to dismiss, the court properly decided the motion on the merits.

       In discussing the issue of notice, the court in this case cited DiSimone v. Vitello, 6 Conn. App. 390, 505 A.2d 745 (1986), using the introductory signal “but see,” which means that, in the court’s view, the cited authority directly states or clearly supports a proposition contrary to the court’s proposition. In DiSimone, this court, in determining whether the defendant’s motion to set aside the default judgment was timely, focused on when the defendant actually received notice of the default judgment.

       The primary issue in Morales and Russell was whether the statutory language, “one year after termination of the original action,” as provided in General Statutes §§ 52-592 and 52-593, should be interpreted as meaning one year after the court issues notice of its decision or as meaning one year from the date of decision. Neither case addresses the issue of actual notice and, therefore, both cases are inapposite to the primary issue in the present case.

       This precise point was made by Justice David M. Shea of our Supreme Court in his concurring opinion in Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 75-76, 540 A.2d 59 (1988) (Shea, J., concurring), in which he wrote: “Centuries ago the common law courts of England . . . insisted upon rigid adherence to the prescribed forms of action, resulting in the defeat of many suits for technical faults rather than upon their merits. Some of that ancient jurisprudence migrated to this country with the settlers and has affected the development of procedural law in this state. Beginning in the middle of the nineteenth century, however, our legislature enacted numerous procedural reforms applicable to ordinary civil actions that are designed to ameliorate the consequences of many deviations from the prescribed norm, which result largely from the fallibility of the legal profession, in order generally to provide errant parties with an opportunity for cases to be resolved on their merits rather than dismissed for some technical flaw.”

       Although Russell addresses only General Statutes § 52-593, the purpose and language of General Statutes §§ 52-592 and 52-593 are closely analogous.
        See Martin v. Bristol Associates, 22 Conn. App. 625, 626-27, 577 A.2d 1138 (1990) (“[b]oth statutes clearly require that the new action be commenced within one year after the determination or termination of the original action”).

       General Statutes § 52-212 (a) provides in relevant part: “Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered . . . and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable . . . .”
      General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law ... a civil judgment . . . may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered . . . .”

        In Morelli v. Manpower, Inc., 34 Conn. App. 419, 642 A.2d 9 (1994), the trial court had dismissed the plaintiffs action pursuant to Practice Book § 251, now § 14-3, for failure to prosecute diligently. The action was dismissed on June 28, 1991, but the plaintiff did not file a motion to open the judgment until November 21, 1991. Morelli v. Manpower, Inc., supra, 421. The court denied ihe motion, stating that it lacked jurisdiction because more than four months had elapsed between the date of the judgment and the motion to open. Id., 422. On appeal, we stated that “[i]t is axiomatic that the right to move to open and vacate a judgment assumes that the party who is to exercise the right be given the opportunity to know that there is a judgment to open. ... [A] notation [that the clerk’s office has sent notice to all parties of record] raises a presumption that notice was sent and received in the absence of a finding to the contrary. . . . Because the presumption is rebuttable, it follows that the plaintiff is entitled to a hearing to have an opportunity to present such rebuttal evidence.” (Citations omitted; internal quotation marks omitted.) Id., 423.
      Also, in Habura v. Kochanowicz, 40 Conn. App. 590, 591-92, 672 A.2d 512 (1996), we held that where the defendants received notice of a judgment against them by way of a letter from the plaintiffs counsel that they received six months after the court rendered its judgment, the four month period began to run from the date that the defendants received the letter. In so holding, we stated that “[w]here the defendants have not received notice of the default judgment . . . the time within which they may move to set aside the judgment is extended by the delay in notification.” Id., 592; see also Tyler E. Lyman, Inc. v. Lodrini, 63 Conn. App. 739, 747, 780 A.2d 932 (“[tjherefore, as we stated in Habura, because of the delay in Albert Lodrini’s receiving notice of the default judgment, the time within which he could have moved to set aside the judgment was extended by the delay in notification”), cert. denied, 258 Conn. 902, 782 A.2d 137 (2001).
      More recently, in Handy v. Minwax Co., 46 Conn. App. 54, 56-59, 698 A.2d 339, cert. denied, 243 Conn. 921, 701 A.2d 342 (1997), we held that where the plaintiff did not have actual or constructive notice of the judgment dismissing his action until he received a letter from the defendant’s counsel almost fourteen months after the date of the judgment, the four month time period was triggered by the plaintiffs receipt of the letter. The motion to open the judgment, filed one week after receipt of the letter, was timely, and the court, therefore, had jurisdiction to open the judgment.

       We reiterate that the finding as to the date that the court issued notice of the dismissal is at variance with the facts in the record before us.

       The court stated that “[t]he plaintiff alleges that he received actual notice of the dismissal on July 26, 1999.” (Emphasis added.)

       We also note that “(i]f a motion to dismiss turns on disputed issues of fact, an evidentiary hearing must be held to afford the parties an opportunity to present evidence and to cross-examine adverse witnesses.” Adolphson v. Weinstein, 66 Conn. App. 591, 594 n.3, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002). “The existence of actual or constructive notice is a question of fact properly within the province of the trial court.” (Internal quotation marks omitted.) Handy v. Minwax Co., 46 Conn. App. 54, 57, 698 A.2d 339, cert. denied, 243 Conn. 921, 701 A.2d 342 (1997).


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MACKINTOSH DUTEAU
    (AC 20047)
    Mihalakos, Dranginis and Healey, Js.
    Argued October 30, 2001
    officially released February 19, 2002

      Reine C. Boyer, for the appellant (defendant).

      Stephen M. Carney, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Paul E. Murray, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, MacKintosh Duteau, appeals from the judgment of conviction, rendered after a jury trial, of sale of narcotics in violation of General Statutes § 2 la-278 (b) and possession of narcotics in violation of General Statutes § 21a-279 (a). On appeal, the defendant claims that (1) the trial court improperly denied his motion to suppress a photograph taken of him by police officers, (2) he was subject to an illegal search and seizure in violation of his rights as set forth in article first, §§ 7 and 9, of the constitution of Connecticut, (3) the police identification procedure was unduly suggestive and unreliable in violation of his constitutional rights, (4) the state engaged in prosecutorial misconduct in its questioning of the defendant during cross-examination and in its comments during closing argument, thereby depriving him of a fair trial and his constitutional right to effective assistance of counsel, (5) the trial court unduly restricted his right to cross-examine a witness, (6) the trial court’s conduct dining the trial in the form of gestures and innuendos was egregious, thereby depriving him of a fair trial, and (7) the trial court improperly precluded him from eliciting character evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 22, 1998, an undercover Norwich police officer, Gregory Post, purchased crack cocaine from an unknown male, whom he had never before encountered, on Lake Street in Norwich. Post provided a description of the individual who sold him the narcotics to Officers Mark Rankowitz and Christopher Ladd. After returning to the police station, Post examined a book compiled by the Norwich police department that contained approximately 200 photographs of persons in the area suspected to be involved with narcotics. Post did not recognize any of the photographs as being of the person who sold him cocaine.

On June 16, 1998, while walking in the vicinity of Lake Street, Officers Rankowitz and Michael Blanchette noticed amale matching Post’s description. The officers approached the male, who identified himself as the defendant. The officers took a photograph of the defendant and placed the picture in the police book. That same day, Post again reviewed the book and, upon seeing the photograph, identified the defendant as the person who sold cocaine to him on May 22, 1998.

Thereafter, the defendant was arrested and charged with the sale and possession of narcotics in violation of §§ 21a-278 (b) and 21a-279 (a). A jury trial ensued, and the defendant was convicted of both counts. This appeal followed. Additional facts will be set forth where relevant to the claim raised.

I

The defendant first claims that the court improperly denied his motion to suppress the photograph of him that was taken by the police because the photograph was a result of an illegal search and seizure in violation of his Terry rights. We decline to review this claim.

The following facts are pertinent to our disposition of this claim. The defendant filed two motions to suppress the photograph and the photographic identification by Post, one on April 28,1999, and another on May 4, 1999. The defendant filed the April 28, 1999 motion on the ground that “the photographic identification of the defendant made by [Post] was derived from unnecessarily suggestive procedures in violation of defendant’s State and Federal Constitutional rights and is therefore unreliable.” After a two day hearing regarding that motion, which was held on April 29 and 30, 1999, the trial court denied the motion. In his April 28 motion to suppress, the defendant did not raise the issues of a Terry violation and whether he was subject to an illegal stop and seizure.

The only mention of Terry and the principles involving an illegal stop arose at the very end of the suppression hearing, when the state objected to the relevancy of one of the defendant’s questions on cross-examination of Officer Blanchette. The trial court sustained the state’s objection and stated that the Terry issue was not relevant to, and not part of, the defendant’s suppression motion. The defendant did not take an exception to that ruling.

The defendant then filed another motion to suppress the photograph on May 4, 1999, in which he claimed that the photograph was procured as a result of an illegal stop and seizure. Although the court apparently denied this second motion, the defendant has failed to provide a copy of the transcript indicating the trial court’s ruling. Moreover, after filing the present appeal, the defendant filed a notice pursuant to Practice Book § 64-1 that the trial court had failed to provide either a memorandum of decision or a signed transcript of its denial of the May 4, 1999 motion to suppress.

In its response pursuant to Practice Book § 64-1, the court did not address the Terry issue and whether the picture taken of the defendant occurred as a result of an illegal search and seizure. Rather, the court stated: “Without going into the substantive issues raised therein, there were procedural reasons for denying [the May 4, 1999 motion to suppress]. For instance, it was untimely. . . . Nor, should a defendant be allowed seriatim motions on the same, or substantially similar, issue(s). ... In any event, the state did not introduce any photograph(s) of the defendant into evidence at trial. ... At trial, [Post] . . . testified that on June 16, 1998, he again looked through the book of photographs and recognized a photograph of the defendant .... While this testimony was being elicited, the defendant made no objection^). . . . Officer Post then identified the defendant in court as the person from whom he had made the [drug] purchase. There was no objection by the defendant. . . . [W]hen the defendant cross-examined Post, the defendant asked Post how the book of photographs had been used. . . . The defendant introduced the book of photographs [into evidence], ... It contained the June 16 photograph of the defendant. The defendant introduced this specific photograph also as a separate exhibit. ... At trial, the defendant did not file any requests to charge touching upon [whether] the court should instruct the jury on any identification issue.”

The trial court concluded by “respectfully requesting] that it be excused from complying with [Practice Book] § 64-[l] (a) . . . .” The defendant did not file a motion for articulation pursuant to Practice Book § 66-5 or a motion to compel the trial court to file a memorandum of decision pursuant to Practice Book § 60-2 (1).

It is well established that it “is the responsibility of the appellant to provide an adequate record for review.” Practice Book § 61-10. “While we do not condone the court’s failure to comply with [Practice Book] § 4059 [now § 64-1 (a)] . . . we would not exalt form over substance if the deficiency were of a technical nature.” (Internal quotation marks omitted.) State v. Beliveau, 52 Conn. App. 475, 480, 727 A.2d 737, cert. denied, 249 Conn. 920, 733 A.2d 235 (1999). Here, the inadequate record is of a fatal and not technical nature and, thus, prevents our review of the merits of this claim. See State v. Rosedom, 34 Conn. App. 141, 143, 640 A.2d 634 (1994).

In this case, the record is devoid of the court’s decision and explanation regarding the motion to suppress the photograph and the Terry claim. Although the court, in response to the Practice Book § 64-1 notice, stated that the defendant’s motion to suppress was procedurally flawed, it did not affirmatively state that it denied the motion because of those defects, nor did it provide its basis for denying the motion. Moreover, the record does not reveal any specific findings by the trial court with regard to the defendant’s Terry claim. We additionally note that the defendant failed to file the transcript of the hearing on the May 4, 1999 motion to suppress.

The defendant could have ensured the adequacy of the record by filing a motion for articulation pursuant to Practice Book § 66-5 or by filing a motion to compel the trial court to file a memorandum of decision pursuant to Practice Book § 60-2. State v. Rosedom, supra, 34 Conn. App. 144-45. The defendant, however, declined to pursue either route. “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) State v. Talton, 63 Conn. App. 851, 861, 779 A.2d 166, cert. denied, 258 Conn. 907, 782 A.2d 1250 (2001). In light of the inadequate record before us, we decline to review the defendant’s claim.

II

The defendant next claims that the court improperly denied his motion to suppress the photograph taken of him because Post’s identification resulted from unnecessarily suggestive procedures in violation of the defendant’s constitutional rights. The defendant argues that because Post’s identification arose from unnecessarily suggestive procedures, Post’s subsequent in-court identification of the defendant was unreliable and, therefore, impermissible. We decline to review this claim.

In essence, the first part of this claim arises from the trial court’s denial of the defendant’s April 28, 1999 motion to suppress. The defendant based his April 28, 1999 motion to suppress on the ground that Post’s identification was derived from unnecessarily suggestive procedures. Although the court denied the defendant’s motion, the defendant has failed to provide this court with a signed transcript or a memorandum of decision reflecting the court’s decision. In its response pursuant to Practice Book § 64-1, the court did not address the April 28, 1999 motion to suppress other than to state that the “defendant does not seek the court’s decision on this April 28,1999 motion.” Furthermore, a thorough review of the transcripts does not reveal the basis of the trial court’s denial.

As set forth in part I of this opinion, this court will not review claims where there is an inadequate record. Accordingly, to the extent that the defendant challenges the denial of his April 28, 1999 motion to suppress the photograph and Post’s identification, because of the absence of a memorandum of decision or signed transcript here, we decline to review this claim.

The defendant additionally asserts that Post’s in-court identification was unreliable and, thus, improperly before the jury. We note at the outset that the state did not introduce into evidence the photograph of the defendant or the photographic book. Moreover, during the trial, the defendant did not challenge or object to any reference to the photograph. Specifically, the defendant did not object when Post testified that he recognized a photograph of the defendant in the book or when Post identified him in court.

This “court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” Practice Book § 60-5. “Appellate review of evidentiary rulings is ordinarily limited to the specific legal issue raised by the objection of trial counsel. ... By failing to object . . . the defendant failed to preserve this claim.” (Citations omitted; internal quotation marks omitted.) State v. Moore, 65 Conn. App. 717, 721-22, 783 A.2d 1100, cert. denied, 258 Conn. 940, 786 A.2d 427 (2001). Because the defendant failed to object to Post’s identification and testimony and, further, neglected to raise this issue before the trial court, this claim is unpreserved. Accordingly, we will not review this unpreserved claim.

HI

The defendant next contends that the state engaged in prosecutorial misconduct and thereby deprived him of a fair trial and his sixth amendment right to effective assistance of counsel. Specifically, the defendant argues that the prosecutor’s comments during his cross-examination and closing argument were improper. Because the defendant did not properly preserve this claim, he now seeks our review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

It is well settled that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. This court may dispose of a claim on the ground that a defendant has failed to meet any one of the Golding criteria. State v. Heredia, 253 Conn. 543, 560, 754 A. 2d 114 (2000). As the defendant cannot satisfy the third prong of Golding, the defendant’s claim must fail.

“We will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial. ... In determining whether a prosecutor’s conduct was so egregious as to deny a defendant a fair trial, we note that some leeway must be afforded to the advocates .... [W]e must review the comments complained of in the context of the entire trial.” (Citations omitted; internal quotation marks omitted.) State v. Cansler, 54 Conn. App. 819, 827-28, 738 A.2d 1095 (1999).

Furthermore, “[i]n considering the defendant’s claim of prosecutorial misconduct, we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Internal quotation marks omitted.) State v. Banks, 58 Conn. App. 603, 619, 755 A.2d 279, cert. denied, 254 Conn. 923, 761 A.2d 755 (2000).

After thoroughly reviewing the transcripts and record, we conclude that the prosecutor’s questions of the defendant on cross-examination and his comments during closing argument did not so infect the trial with unfairness as to deny the defendant his right to a fair trial. See State v. Dwyer, 59 Conn. App. 207, 212, 757 A.2d 597, cert. denied, 254 Conn. 937, 761 A.2d 763 (2000). Even if we assume arguendo that the prosecutor’s statements were improper, when considered in the context of the entire trial, the statements were isolated and brief and did not constitute a pattern of conduct repeated throughout the trial or conduct that was blatantly egregious, nor did they violate the defendant’s constitutional right to due process. See State v. Banks, supra, 58 Conn. App. 621. Accordingly, the defendant’s claim fails to meet the third prong of Golding. See State v. Dwyer, supra, 212.

IV

The defendant next claims that the trial court improperly restricted his examination of an adverse witness whom he called to testify. We decline to review this claim.

We first note, as set forth in part II of this opinion, that this court will not review a claim “unless it was distinctly raised at the trial ....'” Practice Book § 60-5. “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. . . . Claims that were not distinctly raised at trial are not reviewable on appeal.” (Internal quotation marks omitted.) Motto v. Dermatopathology Associates of New York, 55 Conn. App. 592, 596, 739 A.2d 1284 (1999). A thorough review of the record, transcripts and briefs reveals that the defendant failed to object or to raise this issue before the trial court.

Moreover, the defendant has failed to present this claim properly for appellate review as required by Practice Book § 67-4 (d) (3). “It has long been our strong policy that if evidentiary rulings claimed to be improper are to be reviewed by this court, they must be set forth in the briefs as required and outlined by the rules of practice. ... A party’s mere assertion in [its] brief that the evidence was improperly excluded, coupled with transcript page references, will not be sufficient . . . .” (Citation omitted; internal quotation marks omitted.) Matto v. Dermatopathology Associates of New York, supra, 55 Conn. App. 596-97.

In raising this claim, the defendant merely states that the trial court improperly precluded him from eliciting testimony from Aldi and has failed to provide any specific reference to the transcripts. Accordingly, because the defendant has not properly preserved or presented this issue for appellate review, we decline to review this claim of error.

V

The defendant next claims that as a result of the trial court’s egregious conduct in the form of gestures, comments and innuendos made during trial, he was deprived of his right to have a fair trial. We decline to review this claim.

The defendant fails to provide either legal authority or analysis to support this claim. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis.” (Citation omitted; internal quotation marks omitted.) State v. Jones, 67 Conn. App. 25, 27 n.2, 787 A.2d 43 (2001).

VI

The defendant finally claims that the court improperly precluded him from introducing character evidence with respect to personality traits of narcotics sellers. We decline to review this claim.

The defendant has failed to present this claim properly for appellate review as mandated by Practice Book § 67-4 (d) (3). As previously stated, “[a] party’s mere assertion in [its] brief that the evidence was improperly excluded, coupled with transcript page references, will not be sufficient . . . .” (Internal quotation marks omitted.) Matto v. Dermatopathology Associates of New York, supra, 55 Conn. App. 597. The defendant has not properly presented this claim for appeal, and we therefore decline to review it.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who . . . sells . . . offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years . . .

       General Statutes § 21a-279 (a) provides in relevant part: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned . . .

       See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

       Practice Book § 64-1 provides in relevant part: “(a) The court shall state its decision either orally or in writing ... (4) in ruling on motions to suppress .... The court’s decision shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial court shall create a memorandum of decision for use in the appeal by ordering a transcript of the portion of the proceedings in which it stated its oral decision. The transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office. . . .
      “(b) If the trial judge fails to file a memorandum of decision or sign a transcript of the oral decision in any case covered by paragraph (a), the appellant may file with the appellate clerk a notice that the decision has not been filed in compliance with paragraph (a). . . . The trial court shall thereafter comply with paragraph (a).”

       The defendant also separately contends that the actions of the police officers in this case constituted an illegal search and seizure in violation of his state constitutional rights. The defendant failed to raise this issue before the trial court, and he does not seek review of this claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. This “court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. ...” Practice Book § 60-5. Moreover, to the extent that the defendant implicated this issue in his May 4, 1999 motion to suppress, as stated previously, the record is inadequate to review such a claim. Accordingly, we decline to review this claim.

       Moreover, the defendant does not seek our review of this claim pursuant to either State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 60-5.

       The defendant now challenges questions that the prosecutor posed during the state’s cross-examination of the defendant that related to the defendant’s knowledge of the Norwich area and to whether the translator, who was assigned to interpret the proceedings for the defendant, accurately relayed his answers. The defendant claims that the following questions and statements constituted prosecutorial misconduct:
      “[Assistant State’s Attorney]: Did you, sir, say these are the only two places that I know in Norwich, Chestnut Street and Division Street?
      “[Defendant]: Because that’s where—because I was there. That’s where I was the day that I was accused of selling drags.
      “[Assistant State’s Attorney]: This is a yes or no, sir. Did you say the only two places that I know in Norwich are Division Street and Chestnut Street?
      “[Defendant]: I—
      “[Assistant State’s Attorney]: Objection—
      “The Court: Hold on.
      “[Assistant State’s Attorney]: —I asked a yes or no question, that’s why I objected.
      “The Court: Well, maybe it’s a long way of saying yes or no.
      “[Assistant State’s Attorney]: Those are the only two words that I know in Creole now, I think.
      “The Court: I don’t know what he said. Go ahead madam interpreter.
      “[Defendant]: I did not think that those were the two places that I know in Norwich. I said those are the two places I share my time between those two places.
      “[Assistant State’s Attorney]: You speak some English, sir?
      “[Defendant]: Yes.
      “[Assistant State’s Attorney]: Do you know where it was a poor translation then, sir, when the translator said I don’t know any other place in Norwich?
      “[Defense Counsel]: Objection, Your Honor, counsel is asking the witness to provide some type of expert testimony regarding the interpreter’s ability to translate accurately, Your Honor.
      “The Court: I think it’s a fair question on cross. Madam interpreter, ask [the defendant] if he understands the question [the assistant state’s attorney] just asked.
      “[Defendant]: What question?
      “The Court: Try it again . . . but clean it up a bit, though.
      “[Assistant State’s Attorney]: The translator in English said that you . . . said I don’t know any other place in Norwich. Is that an accurate translation of what you said, not what you meant?
      * * *
      “[Assistant State’s Attorney]: You are saying, sir, you don’t understand English?
      “[Defendant]: I do understand some English, but not everything that he said to me in English.
      “[Assistant State’s Attorney]: You understand a substantial amount?
      “[Defendant]: Yes.
      “[Assistant State’s Attorney]: In fact, before you . . . got used to working with the interpreter you were answering some questions before that translation was made?
      “[Defendant]: It’s easier for me to talk through an interpreter because I don’t want anything—I don’t want my not being able to understand some English words [to] affect my ability to make myself understood.
      “[Assistant State’s Attorney]: But, you answered some questions even before the interpretation was made?
      “[Defendant]: The simple questions.
      “[Assistant State’s Attorney]: Like your constitutional rights?

        “[Defendant]: What do you mean by constitutional rights?
      “[Assistant State’s Attorney]: These are the kinds of questions that you are calling simply, questions about your constitutional rights, is that correct sir?
      “[Defense Counsel]: Objection, Your Honor, I don’t think the defendant ever characterized the constitutional questions as simple. I think that it is definitely a mischaracterization of the defendant’s testimony.
      “[Assistant State’s Attorney]: Your Honor, I was prepared to get the transcripts.
      “The Court: Go ahead, the jury will remember or they won’t remember it. We will find out. Go ahead, it’s up to the jury.
      “[Assistant State’s Attorney]: My questions—
      “The Court: Go ahead, you can ask the question.”

       The defendant challenges the following comments that the assistant state’s attorney made during closing argument: “And I would suggest to you that this defendant has tried to use his background, the fact that he is— that English is not his first language is a bit of a barrier between you and him. And a bit of a barrier between him and the police to suggest that somehow he’s not a seller of drugs. He’s innocent and he’s misunderstood.

        * ** *
      “He says that his whole life in the United States has been in bad neighborhoods. Neighborhoods by his testimony he says that are no good, they are high crime, they are dangerous. And then he says after being shown this and not being told specifically by counsel what it is, no, I’ve never seen cocaine before in my life.”

       This claim is unpreserved because the defendant failed to object to the state’s questions during cross-examination on the ground of prosecutorial misconduct and, moreover, failed to raise any objection, or to take exception, to the statements during closing argument.

       The defendant’s claim arises out of his direct examination of his witness, Lieutenant Robert Aldi, who he called to testify about police procedures to safeguard evidence and photographic identifications.

       The defendant does not seek our review of this unpreserved claim pursuant to either Golding or the plain error doctrine.

       Practice Book § 67-4 (d) (3) provides: “When error is claimed in any evidentiary ruling in a court or jury case, the brief or appendix shall include a verbatim statement of the following: the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; and the ruling.”


author: PETERS, J.

text:
    DWIGHT CUPE v. COMMISSIONER OF CORRECTION
    (AC 21391)
    Lavery, C. J., and Schaller and Peters, Js.

      Argued October 23, 2001
    officially released February 19, 2002

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Jo Anne Sulik, assistant state’s attorney, for the appellant (respondent).

      Sebastian O. DeSantis, special public defender, for the appellee (petitioner).
   Opinion

PETERS, J.

The sole issue in this appeal is whether a habeas court has the authority to take any action with respect to issues not raised in the habeas pleadings. Specifically, we must decide whether the habeas court may dismiss a guilty plea to a charge that is not included in the parties’ stipulation of issues to be considered by the court. The respondent commissioner of correction appeals from the habeas court’s judgment, vacating the petitioner’s plea of guilty to a charge of manslaughter because the petition for a writ of habeas corpus dealt only with a charge of conspiracy to distribute narcotics. We reverse the judgment of the habeas court as to the vacation of the manslaughter plea.

The following factual and procedural history is relevant to the disposition of this appeal. On November 16, 1999, the petitioner, Dwight Cupe, pleaded guilty to charges of manslaughter in the first degree in violation of General Statutes §§ 53a-8b and 53a-55a, and conspiracy to distribute narcotics in violation of General Statutes §§ 53a-48 and 21a-277 (a). Prior to these pleas, the petitioner had moved unsuccessfully to suppress evidence related to the charge of conspiracy to distribute narcotics. The petitioner repeatedly indicated to his attorney that he desired to appeal the court’s ruling on his motion. Relying on his attorney to preserve his right to appeal, the petitioner proceeded to enter guilty pleas under the Alford doctrine on both charges. Neither Alford plea was, or could have been, conditioned on the preservation of the petitioner’s right to appeal the denial of his motion to suppress. On December 22, 1999, the petitioner was sentenced to a total of twenty years imprisonment, suspended after ten years, with five years probation.

On August 14, 2000, the petitioner filed an amended petition for a writ of habeas corpus, alleging that his trial attorney had provided ineffective assistance of counsel by failing to preserve his right to appeal from the denial of the motion to suppress and by failing to inform him of the ramifications of pleading guilty under the Alford doctrine. By way of relief, the petitioner requested the right to plead nolo contendere so that he would be able to appeal from the denial of his motion to suppress.

A hearing before the habeas court was held on August 22, 2000. At the hearing, the court discussed with the parties which of the petitioner’s pleas were before the court. The court stated that the petitioner’s plea of guilty to the charge of manslaughter was not part of the petition and was, therefore, not within the court’s jurisdiction. When the petitioner raised the issue of the voluntariness of his plea, the court ruled that this also was not part of the petition.

The court later indicated its preference for addressing both the original claim of ineffective assistance of counsel and the voluntariness of the petitioner’s plea. The court requested either that the respondent stipulate that the court could do so or that the petitioner file an amended petition to which the respondent could reply. On August 30, 2000, the parties executed a stipulation that set out the issues to be considered by the court. By the express terms of the stipulation, however, the petition for a writ of habeas corpus dealt only with the charge of conspiracy to distribute narcotics. Both parties filed briefs addressing the issues included in the stipulation.

On October 12, 2000, the habeas court rendered judgment for the petitioner. The court vacated the petitioner’s guilty pleas to both charges. Relying on State v. Phidd, 42 Conn. App. 17, 681 A.2d 310, cert. denied, 238 Conn. 907, 679 A.2d 2 (1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1115, 137 L. Ed. 2d 315 (1997), the court granted the petitioner’s request for the right to appeal from the denial of the motion to suppress. In its memorandum of decision, the court found that the petitioner had been denied his right to effective assistance of counsel and that his guilty pleas on both charges were not made in a knowing, intelligent and voluntary manner. The record contains no indication that the court notified the parties in advance or stated on the record its decision to consider the validity of the manslaughter plea. This appeal followed.

On appeal, the respondent does not challenge the court’s finding of ineffective assistance of counsel or the vacation of the petitioner’s guilty plea as to the narcotics charge. The respondent claims, instead, that the court improperly vacated the petitioner’s manslaughter plea because (1) the validity of the manslaughter plea was not properly before the court, (2) the petitioner failed to present evidence of prejudice to the petitioner as to the manslaughter plea and (3) the court failed to find prejudice to the petitioner as to the manslaughter plea.

The respondent argues, in his first contention, that the court exceeded its authority in vacating the petitioner’s plea of guilty to the charge of manslaughter because that plea was not properly before the court. We agree.

Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review, questions of law are subject to plenary review. Morrison v. Commissioner of Correction, 57 Conn. App. 145, 147, 747 A.2d 1058, cert. denied, 253 Conn. 920, 755 A.2d 215 (2000). The issue before us presents a question of law and, thus, our review is plenary.

“In a writ of habeas corpus alleging illegal confinement the application must set forth specific grounds for the issuance of the writ including the basis for the claim of illegal confinement. . . . The petition for a writ of habeas coipus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action. . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations ... it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised.” (Citations omitted; internal quotation marks omitted.) Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 406, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999); see also Holley v. Commissioner of Correction, 62 Conn. App. 170, 181, 774 A.2d 148 (2001).

In this case, the amended petition alleged that the petitioner was denied effective assistance of counsel in that his attorney failed to preserve his right to appeal from the denial of his motion to suppress, a claim that is relevant to the charge of conspiracy to distribute narcotics. The petition did not address any issue concerning his plea to the charge of manslaughter. At the habeas hearing, the court acknowledged that omission and ruled that the plea to the manslaughter charge was not properly before the court. The petitioner did not challenge that ruling and, indeed, conceded that the manslaughter plea was not included in the habeas petition. Although the parties stipulated, after all the evidence had been presented, that the court could address the voluntariness of the petitioner’s plea, the stipulation described only that part of the petition relating to the charge of conspiracy to distribute narcotics. The respondent limited its posttrial brief to the issues arising out of the narcotics charge.

In general, the effect of a trial stipulation by the parties is well established. While stipulations are not necessarily binding on the court and may justifiably be disregarded in certain circumstances, they ordinarily are adopted by the court. Central Connecticut Teachers Federal Credit Union v. Grant, 27 Conn. App. 435, 438, 606 A.2d 729 (1992). If the court decides that it cannot adopt the parties’ stipulation, the court should state on the record its disapproval of the agreement, as well as the reasons for its disapproval. Id. The court also should offer the parties an opportunity to present evidence prior to proceeding to judgment. Id. A trial court exceeds its authority if it disregards the terms of the parties’ stipulation without notifying the parties and providing them an opportunity fully to litigate the controversy. See Hartford Postal Employees Credit Union, Inc. v. Rosemond, 33 Conn. App. 395, 397-98, 635 A.2d 876 (1994); Bank of Boston Connecticut v. DeGroff 31 Conn. App. 253, 255-56, 624 A.2d 904 (1993); Central Connecticut Teachers Federal Credit Union v. Grant, supra, 438.

If a court decides that a stipulation is appropriate, it may, of course, interpret the terms of the stipulation. The standard for interpreting such a stipulation also has been well established. “[A] stipulation . . . must be construed according to the intention of the parties as expressed in the language used in the document itself, rather than according to the intention which may have existed in the mind of either of the parties. . . . When the intent of the parties is clear in the stipulation, intent is a matter of law, rather than a question of fact.” (Citations omitted; internal quotation marks omitted.) Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 260, 694 A.2d 1319 (1997).

In this case, there is no claim that the stipulation was incomplete, unclear or ambiguous. The parties’ manifestation of their intent was, therefore, binding on the court as a matter of law. The stipulation stated that the petition was “dealing with the conspiracy to distribute narcotics, § 21a-277 (a), Docket No. CR97172619 . . . ,” Notably, the stipulation omitted any reference to the charge of manslaughter. Despite the possible ambiguity of the discussions during trial about the issues that were before the court, the parties’ posttrial stipulation left no room for uncertainty.

In support of its disposition of both pleas, the court indicated that the plea on the charge of manslaughter and the plea on the charge of conspiracy to distribute narcotics were “intertwined.” The petitioner’s brief cites no authority to support the proposition that a habeas court has authority to assume jurisdiction over a possibly related charge when that charge is not included in the petition.

In light of this record, the court had no authority to disregard the parties’ stipulation without notifying them. The parties had no opportunity fully to litigate the issues relating to the manslaughter plea. We are persuaded that the plea to the charge of manslaughter was not before the habeas court.

The petitioner argues that, even if the manslaughter plea was not properly before the court, the court had the authority to vacate that plea as a remedy for the constitutional violation that had been established on the narcotics plea. In its memorandum of decision, the court relied on its authority under General Statutes § 52-470 (a) to “dispose of the case as law and justice require” to vacate both pleas.

While a court has the discretion to formulate a remedy that is appropriate in light of a finding of a constitutional violation; James L. v. Commissioner of Correction, 245 Conn. 132, 148, 712 A.2d 947 (1998); its discretion is not unlimited. The remedy provided must be commensurate with the scope of the constitutional violation that it seeks to vindicate. Gaines v. Manson, 194 Conn. 510, 528, 481 A.2d 1084 (1984); see also State v. Phidd, supra, 42 Conn. App. 30; State v. Robinson, 10 Conn. App. 520, 523-24, 523 A.2d 1365, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987).

The petitioner relies on Molinas v. Commissioner of Correction, 231 Conn. 514, 652 A.2d 481 (1994), to support his contention that the habeas court had broad discretion to take the initiative in devising an appropriate remedy in this case. Molinas does not, however, grant unlimited authority to the court to devise any remedy that it finds appropriate or to address an issue not raised in the habeas petition. In Molinas, the court allowed a habeas court to order the remission of a fine, which the petitioner had not requested as a remedy, because the habeas court was statutorily empowered to do so. In the present case, the problem is not that the petitioner failed to request specifically the remedy of vacating the manslaughter plea, but rather that the petitioner failed to raise any issue concerning the constitutionality of the manslaughter plea. The appropriateness of a remedy formulated by a habeas court depends not on whether the petitioner requested that remedy, but on whether it is commensurate with the constitutional violations found by the court. Gaines v. Manson, supra, 194 Conn. 528.

The constitutional violation established in this case was ineffective assistance of counsel. As alleged by the petitioner and as found by the court, that violation related specifically to the petitioner’s plea to the charge of conspiracy to distribute narcotics. The court’s remedy of vacating both pleas therefore exceeded the scope of the constitutional violation that was established. We conclude that, in the absence of a proper pleading, it was improper for the court to vacate the plea to the charge of manslaughter.

The judgment is reversed with respect to the vacation of the manslaughter plea and the case is remanded with direction to render judgment vacating the petitioner’s plea only with respect to his conviction of conspiracy to distribute narcotics.

In this opinion the other judges concurred.

       The evidence at issue consisted of letters that were written by the petitioner to his wife while he was incarcerated. The letters, which were seized from the petitioner’s home by police while executing a search warrant, contained information relevant to the charge of conspiracy to distribute narcotics. The petitioner claims that the letters were beyond the scope of the warrant.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The proper way to preserve the right to challenge the denial of the motion to suppress would have been to file a plea of nolo contendere conditional on the right to take an appeal from that ruling. See Practice Book § 61-6.

       The petitioner initially filed a petition for a writ of habeas corpus on or about January 13, 2000. He subsequently secured a special public defender who filed the amended petition on August 14, 2000.

       The petitioner’s prayer for relief in his amended petition states in relevant part:
      “1. That the Court revoke the Petitioner’s guilty plea and grant the Petitioner a right to plead nolo [c] ontendere under Connecticut General Statutes § 54-94a;
      “2. That the court reassert the Petitioner’s right to appeal the denial of the motion to suppress; and,
      ”3. That the Court grant such other or further relief as law and equity may require.”

       The document titled “Stipulation of Issues and Schedule of Pleadings” states in relevant part:
      “The petitioner and the respondent hereby stipulate that the habeas court may consider the following issues in deciding whether the petitioner’s petition for [a] writ of habeas corpus dealing with the conspiracy to distribute narcotics, § 21a-277(a), Docket No. CR97-172619, should be granted:
      “1. Whether [the petitioner’s] trial counsel was ineffective in not making [the petitioner’s] plea one of nolo contendere with the right to appeal?
      “2. Whether, if the habeas court were to reinstate the petitioner’s right to appeal from his guilty plea, the petitioner could gain review of his claim that the trial court erred in denying his motion to suppress?
      “3. Whether, under the circumstances of this case, the reinstatement of the petitioner’s right to appeal from his guilty plea is an appropriate remedy?
      “4. Whether [the petitioner’s] plea was unknowing, unintelligent, and involuntary and, thus, invalid, as a result of ineffective assistance of counsel? In raising this question, the petitioner alleges that his attorney’s performance was deficient and that such deficient performance resulted in prejudice.
      “5. Whether [the petitioner’s] guilty plea was not made in a knowing, intelligent and voluntary manner because the plea canvass did not inform [the petitioner] that he was giving up his right to appeal the denial of his motion to suppress?
      “6. Whether the petitioner is entitled to habeas review or relief of his claim in paragraph 5, above, where he did not challenge the validity of his plea before sentencing or on direct appeal? In raising this issue, the respondent alleges that because the petitioner did neither, the claim is procedurally defaulted. The respondent further alleges that the petitioner cannot establish good “cause” for procedural default and “prejudice” sufficient to excuse the default and permit review of the claim for the first time in this habeas corpus proceeding. . . .”

       In light of this conclusion, we need not address the respondent’s second and third claims.

       The petitioner made the same concession in oral argument before this court.

       See footnote 6.

       In its memorandum of decision, the court stated: “Further, the two cases are intertwined. If the petitioner should win on his appeal of the denial of the motion to suppress, he may well feel that he should go to trial on the attempted manslaughter charge knowing that he would not have a conviction on the drug offense to impeach him.”

       General Statutes § 52-470 (a) provides in relevant part: “The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require.”

       The court also relies on State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), for its authority to consider claims of constitutional magnitude.
        Golding, however, grants authority for appellate review of claims not raised at trial if there is adequate support in the record that the litigant has been deprived of a fundamental constitutional right. Golding does not grant similar authority for collateral review and is, therefore, inapplicable to habeas proceedings. Tyson v. Warden, 24 Conn. App. 729, 733 n.4, 591 A.2d 817 (1991).


author: MIHALAKOS, J.

text:
    HOFFMAN FUEL COMPANY OF DANBURY v. MICHAEL J. ELLIOTT ET AL.
    (AC 21487)
    Mihalakos, Flynn and Shea, Js.

      Argued November 30, 2001
    officially released February 19, 2002

      Ridgely W. Brown, with whom, on the brief, was Daniel Shepro, for the appellants (defendants).

      George J. Kelly, Jr., with whom was Glenn A. Duhl, for the appellee (plaintiff).
   Opinion

MIHALAKOS, J.

The defendants, Michael J. Elliott and Callie A. Elliott, trustee of the Callie A. Elliott Family Trust, appeal from the judgment, rendered after a trial to the court, declaring that a prescriptive easement exists in favor of the plaintiff, Hoffman Fuel Company of Danbury, and permanently enjoining the defendants from obstructing the plaintiffs use of that easement. On appeal, the defendants claim that the trial court improperly found that the plaintiffs past use of the disputed driveway encroachment area satisfied each of the elements giving rise to a prescriptive easement. In the alternative, they claim that if the plaintiffs use did give rise to a prescriptive easement, then the court improperly determined the scope of the easement. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. In 1948, Frank Genovese and Marguerite Genovese (Genovese) owned real property located at 170 and 172 White Street in Danbury. On May 4,1948, Genovese sold 170 White Street to Walter Werner and Charlotte Werner (Werner). In the deed of conveyance from Genovese to Werner, Genovese reserved a right to use a portion of 170 White Street for purposes of egress from and ingress to 172 White Street. The deed did not convey any portion or any right to use any portion of 172 White Street to Werner. Hoffman Fuel Company of Danbury (Hoffman) is a successor in interest to Werner.

The driveway on 170 White Street is located on the east side of 170 White Street and adjacent to the 172 White Street property line. The driveway is the sole means of ingress to and egress from Hoffman’s fuel depot, which is located on 170 White Street. Hoffman has used its driveway on 170 White Street continuously since at least 1955 for regular private vehicular traffic, including trucks, vans, delivery trucks and tractor-trailers. When the vehicles used the driveway, they encroached on a portion of 172 White Street as if it were part of the driveway.

In 1970, Genovese leased 172 White Street to the Sizzlebord restaurant. Thereafter, on April 5, 1971, Sizzlebord subleased to Hoffman a portion of 172 White Street, including a garage and parking area, located at the rear of the property. On October 30, 1975, Michael J. Elliott and Callie A. Elliott, trustee of the Callie A. Elliott Family Trust (Elliott), purchased 172 White Street from Genovese. Hoffman continued to lease the rear portion of 172 White Street from the defendants until 1996.

By letter dated September 25, 1996, Elliott informed Hoffman that a survey of 172 White Street revealed pavement and fence encroachment by Hoffman along the northwest side of 172 White Street. Thereafter, Elliott began to erect a fence to prevent Hoffman from utilizing the disputed encroachment area.

Pursuant to its revised complaint filed June 24, 1998, Hoffman alleged that it had acquired a prescriptive easement over the encroachment area. By answer filed August 12, 1998, Elliott asserted a special defense, namely, that because Hoffman leased a portion of the defendant’s property, the use of the encroachment area was permissive and thereby defeated any claim of an easement by prescription. On June 29, 2000, the matter was tried before the court. In its memorandum of decision filed November 7, 2000, the court concluded that Hoffman had established by a preponderance of the evidence that it had acquired an easement by prescription to use the driveway encroachment area located on 172 White Street. The court further ordered a permanent injunction preventing Elliott from interfering with that easement. This appeal followed. Additional facts will be provided as necessary.

I

The defendants first argue that the court improperly found that the use of the disputed driveway encroachment area was open, visible, continuous and uninterrupted, and under a claim of right so as to give rise to a prescriptive easement in favor of Hoffman. We disagree.

“Whether a right of way by prescription has been acquired presents primarily a question of fact for the trier after the nature and character of the use and the surrounding circumstances have been considered.” Klein v. DeRosa, 137 Conn. 586, 589, 79 A.2d 773 (1951). “When the factual basis of the court’s decision is challenged, the reviewing court must determine whether the facts are supported by the evidence or whether they are clearly erroneous.” Faught v. Edgewood Corners, Inc., 63 Conn. App. 164, 168, 772 A.2d 1142, cert. denied, 256 Conn. 934, 776 A.2d 1150 (2001). “In such cases, the trier’s determination of fact will be disturbed only in the clearest of circumstances, where its conclusion could not reasonably be reached.” Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 619, 495 A.2d 1006 (1985).

As a preliminary matter, the defendants argue that the court’s “conclusions as to the ultimate facts are inconsistent with the subordinate facts found, and, therefore, present a mixed question of law and fact, review of which is plenary.” We are not persuaded. The defendants cite Tooley v. Metro-North Commuter Railroad Co., 58 Conn. App. 485, 492 n.8, 755 A.2d 270 (2000), Crandall v. Gould, 46 Conn. App. 164, 698 A.2d 934 (1997), rev’d, 244 Conn. 583, 711 A.2d 682 (1998), and Reynolds v. Soffer, 190 Conn. 184, 188, 459 A.2d 1027 (1983), to support that proposition. Because Tooley involved exhaustion of administrative remedies in the context of a collective bargaining agreement, it is not relevant to our review of whether the elements of a prescriptive easement have been satisfied in a particular case. Furthermore, in both Crandall and Reynolds, whether the requirements for a prescriptive easement had been met was reviewed under a clearly erroneous standard. See Crandall v. Gould, supra, 167; Reynolds v. Soffer, supra, 188-89. We therefore review the court’s findings to determine whether they were clearly erroneous.

To establish an easement by prescription in accordance with General Statutes § 47-37, the plaintiff must prove the necessary elements by a preponderance of the evidence. See Faught v. Edgewood Corners, Inc., supra, 63 Conn. App. 168. It is well settled that before a use may develop into a prescriptive easement, it must be (1) open and visible, (2) continuous and uninterrupted for fifteen years and (3) engaged in under a claim of right. Id. Because the defendants do not dispute that the use was continuous and uninterrupted for fifteen years, we limit our review to the remaining two elements.

A

Open and Visible

The defendants argue that the use of the disputed area was not “notorious” and, therefore, the open and visible element was not satisfied. This argument is misplaced.

“To be open, a use must be without attempted concealment .... It must be so open, visible, and apparent that it gives the owner of the servient tenement knowledge and full opportunity to assert his rights. The circumstances of possession must be sufficient to put a prudent person upon inquiry.” 25 Am. Jur. 2d, Easements and Licenses § 60 (1996). “It is for the party who seeks to establish an easement by user to exercise his claimed right so openly as to give the owner knowledge and full opportunity to assert his own rights.” Exley v. Gallivan, 96 Conn. 676, 679, 115 A. 482 (1921). “[T]he defendants’ actual knowledge of the existence of the right-of-way is not a necessary element of the plaintiffs proof.” Robert S. Weiss & Co. v. Mullins, supra, 196 Conn. 619.

The defendants argue that the use of the encroachment area could not satisfy this element of a prescriptive easement because they did not know about the use until 1996. The court, however, found that the defendants had a survey prepared, dated October 6, 1975, which shows Hoffman’s encroachment on the 172 White Street property. In addition, the court found that Hoffman had paved, repaired, plowed and repaved the area. Hoffman also painted the surface of the disputed area to establish a no parking zone.

We conclude that Hoffman’s use of the encroachment area and the survey prepared by the defendants were sufficient to give the defendants knowledge and full opportunity to assert their rights. The court’s finding that Hoffman established the “open and visible” element of a prescriptive easement was not clearly erroneous.

B

Claim of Right

The defendants further argue that Hoffman has not proved, as a matter of law, that its use of the encroachment area was under a claim of right rather than permissive. Specifically, they claim that the use could not be under a claim of right because the encroachment area was either (1) part of a shared driveway for which the deed provided or (2) included in the sublease with Sizzlebord. We disagree.

“A use made under a claim of right is a use made without recognition of the rights of the owner of the servient tenement. . . . The use must occur without license or permission and must be unaccompanied by a recognition of [the right of the owner of the servient tenement] to stop such use. . . . The claim of right requirement serves to ensure that permissive uses will not ripen into easements by prescription by requiring that the disputed use be adverse to the rights of the owner of the servient tenement. . . . Whether the requirements for [a claim of] right have been met in a particular case presents a question of fact for the trier of facts. . . . The trier’s determination of facts will be disturbed only when those findings are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Faught v. Edgewood, Corners, Inc., supra, 63 Conn. App. 170.

1

Deed

The defendants first claim that the language in the deed demonstrates that the disputed area was a part of a shared driveway and, therefore, the use was permissive. We disagree.

To address the defendants’ claim, we must first look at the deed to determine whether the easement reserved by Genovese was intended to convey an easement over 172 White Street to Werner. “To determine the nature of an easement created by deed, we must discern the intention of the parties to the deed by considering the language of the deed, the situation of the property and the surrounding circumstances. . . . We give the language of the easement its ordinary import where nothing in the situation or surrounding circumstances indicates a contrary intent. . . . The meaning and effect of the reservation are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances . . . and its interpretation presents] a question of law. ... In the construction of a deed or grant, the language is to be construed in connection with, and in reference to, the nature and condition of the subject matter of the grant at the time the instrument is executed, and the obvious purpose the parties had in view.” (Citations omitted; internal quotation marks omitted.) Ezikovich v. Linden, 30 Conn. App. 1, 5-6, 618 A.2d 570, cert. denied, 225 Conn. 913, 623 A.2d 1023 (1993).

A review of the deed reveals that Genovese reserved a right to use the driveway located on 170 White Street, jointly with the Werners, for access to the personal residence located on 172 White Street. In addition, the circular driveway used by Genovese at the time of the conveyance to Werner, as depicted on a map of the property on file in the city clerk’s office, was located on both 170 and 172 White Street. The reservation was, therefore, necessary for Genovese to continue using the driveway. There is no language in the deed purporting to convey any interest in 172 White Street to Werner. After considering the relevant portions of the deed and in light of the surrounding circumstances, we conclude that the deed did not permit Hoffman, either expressly or impliedly, to use any portion of 172 White Street.

2

Lease

The defendants further claim that because Hoffman leased a portion of 172 White Street, the use of the encroachment area was permissive. Specifically, they argue that because the leased property was landlocked, permission to use the encroachment area was implicit in the lease. The defendants’ argument is misplaced.

In essence, the defendants argue that an easement by implication arose for the benefit of the landlocked leased property. Because permission is implicit in the context of a landlocked parcel, they argue that the use of the encroachment area was necessarily permissive. This argument, however, assumes that a prescriptive easement is one that can be implied.

“An implied easement is typically found when land in one ownership is divided into separately owned parts by a conveyance, and at the time of the conveyance a permanent servitude exists as to one part of the property in favor of another which servitude is reasonably necessary for the fair enjoyment of the latter property. ... In the absence of common ownership ... an easement by implication may arise based on the actions of adjoining property owners. . . . There are two principal factors to be examined in determining whether an easement by implication has arisen: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate.” (Internal quotation marks omitted.) O’Brien v. Coburn, 39 Conn. App. 143, 148, 664 A.2d 312 (1995).

The following additional facts are relevant to this claim. In 1971, Sizzlebord subleased the rear portion of 172 White Street, containing a garage and parking area, to Hoffman. A fence ran between the two properties and continued around the subleased area enclosing all of the property in which Hoffman had an interest. The court found that Hoffman “has extensively used its driveway, including the disputed parcel, as its only means of ingress to and egress from its property for trucks which transport fuel oil to the fuel depot on Hoffman’s property [170 White Street] and from the Hoffman’s depot to residential and business customers.”

The defendants argue that the map, the purpose of the lease and the lack of all other access to the landlocked subleased area evidence that if there is an easement, it is by implication, and, therefore, its use must be permissive as a matter of law. They further argue that the use of the encroachment area was not appurtenant to 170 White Street, but rather that it was appurtenant to the leased property. The defendants’ argument disregards the fact that Hoffman owned the adjacent property. The encroachment area was used as the sole means of ingress to and egress from 170 White Street. Any benefit to the leased property on 172 White Street was incidental and, therefore, we cannot conclude that the encroachment area was reasonably necessary to the beneficial use and enjoyment of the leased property.

Because Hoffman did not have permission to use the encroachment area and it did so without recognition of Elliott’s rights to stop such use, we conclude that the court’s finding that Hoffman’s use of the encroachment area was made under a claim of right was not clearly erroneous. Accordingly, the court properly concluded that Hoffman obtained a prescriptive easement over the encroachment area.

II

The defendants argue that if this court determines that the court properly determined that Hoffman held a prescriptive easement over their property, the scope of the easement was too broad. We disagree.

“The determination of the scope of a prescriptive easement is a question of fact. . . . [W]hen an easement is established by prescription, the common and ordinary use which establishes the right also limits and qualifies it. . . . The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit. . . . An owner of an easement has all rights incident or necessary to its proper enjoyment of the easement. . . . [0]ne who has an easement by prescription has the right to do such acts that are reasonable and necessary to effectuate that party’s enjoyment of the easement unless it unreasonably increases the burden on the servient tenement.” (Citations omitted; internal quotation marks omitted.) McCullough v. Waterfront Park Assn., Inc., 32 Conn. App. 746, 755-56, 630 A.2d 1372, cert. denied, 227 Conn. 933, 632 A.2d 707 (1993).

The court enjoined the defendants from “continuing to close, barricade, fence off, obstruct, or otherwise interfere with the foregoing easement and from in any manner interfering with or attempting to prevent [the plaintiff], its invitees, licensees, successors and assigns from passing over or using the said easement.” The court found that Hoffman used the encroachment area for ingress and egress and, in addition, maintained the area for its use. After reviewing the evidence in the record, we conclude that the scope of the easement as provided by the court is not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47-37 provides: “No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or eiqoyment thereof, unless the use has been continued uninterrupted for fifteen years.”

       The defendants seem to confuse the “visible” element of a prescriptive easement with the “notorious” element of adverse possession. The two doctrines, however, require that different elements be proved. “A claim of prescriptive easement requires proof that the claimant’s use of the property has been open, visible, continuous and uninterrupted for fifteen years under a claim of right. ... A claim of title by adverse possession requires a claimant to prove that the owners have been ousted from possession from the property in dispute for an uninterrupted period of fifteen years under a claim of right by an open, notorious and exclusive possession.” (Citations omitted; emphasis added; internal quotation marks omitted.) Francis v. Hollauer, 1 Conn. App. 693, 695-96, 475 A.2d 326 (1984). The defendants argue that the plaintiff has not proved the no torious element of a prescriptive easement. They have not, however, provided this court with any authority, and our research has revealed none, that requires a notorious, rather than visible, use to acquire a prescriptive easement.

       The relevant language in the Werner deed is as follows:
      “The Grantors [Genovese] reserve the right, privilege and easement during their joint lives (and during the life of the survivor of them), unless they shall sooner convey to any third person or persons their adjoining home premises, to use jointly with the Grantees [Werner], their heirs, executors, administrators and assigns, the driveway located on the Easterly part of the premises hereby conveyed for a distance of fifty (50) feet Southerly from the Southerly line of White Street and the exclusive right to use the driveway extending for the remaining distance in a Southerly direction, as it is shown and designated upon the map hereinbefore referred to, which driveway shall be kept by the Grantees herein, their heirs and assigns, substantially fifteen (15) feet in width throughout its entire length.
      sh * *
      “The Grantees, their heirs and assigns, by the acceptance hereof, hereby convenants and agree that the rights reserved by the Grantors in the driveway hereinbefore referred to shall enure to the benefit of all invitees and licensees and members of the family of the Grantors and that in the event the Grantors, or the survivor of them, shall cease to use said premises for a home or office purposes the rights reserved in said passway shall thereupon terminate, and the land hereby conveyed shall be free of any easement in favor of said homestead promises. ...”

       Even if we assume arguendo that the deed did create a common driveway to be used by both Werner and Genovese, the defendants’ argument still fails because (1) the “homestead” purpose of the easement ceased once the restaurant was built and (2) the easement terminated when Genovese conveyed the property to Elliott. On the basis of the defendants’ argument, any permissive use implicit in the deed would have ceased no later than October 30, 1975.