author: SCHALLER, J.

text:
    SHERRI BARRESE v. LOUIS DEFILLIPPO
    (AC 14242)
    Foti, Heiman and Schaller, Js.
    Argued January 14
    officially released May 6, 1997

      Holly K. Dustin, for the appellant (defendant).

      Nicholas E. Wool, with whom was Brenden P. Leydon, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Louis DeFillippo, appeals from the trial court’s denial of his motion to set aside the verdict following a jury trial. On appeal, the defendant claims that the trial court improperly (1) failed to set aside the jury verdict because (a) the verdict was inconsistent since the jury found in favor of the plaintiff on both her negligence claim and her intentional assault and battery claim, (b) the verdict was against the weight of the evidence (c) the verdict was excessive as a matter of law; (2) allowed a medical expert to testify despite the fact that the plaintiff had failed to disclose him as an expert witness pursuant to Practice Book § 220; (3) refused to take judicial notice of General Statutes § 14-227a; (4) limited his medical expert’s testimony; (5) refused to instruct the jury on the law of unavoidable accident; and (6) instructed the jury on the count of intentional battery. We affirm the judgment of the trial court.

The relevant facts are as follows. The defendant and the plaintiff resided together in a condominium for approximately seven months. On January 7, 1989, the defendant told the plaintiff that in five or six months, when the lease to the condominium expired, he intended to return home to his wife and children. Both parties became emotional. At some point during the conversation, the defendant moved behind the plaintiff and wrapped his arms around her. When the plaintiff pulled away from the defendant, the two lost their balance and fell to the floor. The defendant landed on top of the plaintiff causing her injuries.

In August, 1990, the plaintiff instituted an action against the defendant alleging that his negligence caused her injuries. During the course of litigation, the plaintiff amended her complaint to include the allegation that the defendant intentionally caused her injuries. In May, 1994, a jury trial was held. At the completion of the trial, the jury found for the plaintiff on both the negligence count and the intentional assault and battery count. After the trial court denied the defendant’s motion to set the aside the jury verdict, this appeal followed.

I

A

The defendant claims first that the trial court improperly refused to set aside the jury verdict because it was internally inconsistent. He claims that, on the basis of the evidence presented, a jury could not reasonably find that his conduct was both negligent and intentional.

Before we can review the defendant’s claim, we must first determine whether the defendant properly preserved this claim on appeal. “It is an established rule of appellate practice in this state that in order to obtain a full review of claims of error in civil jury cases, parties must raise those errors with the trial court and file a motion to set aside the verdict.” Kolich v. Shugrue, 198 Conn. 322, 325, 502 A.2d 918 (1986). Our review of the record reveals that the defendant first raised the claim of inconsistency in his motion to set aside the verdict. The defendant never undertook to require the plaintiff to choose between negligence and intentional battery and assault, did not except to the jury charge, and, in fact, submitted jury verdict forms and interrogatories based on the plaintiffs allegations of both negligence and intentional tort. Because the defendant’s claim was not properly preserved, we decline to review it. See Peters v. Carra, 10 Conn. App. 410, 412, 523 A.2d 922 (1987). The defendant claims alternatively that, even if this issue was not properly preserved, we should review it under the plain error doctrine. See Practice Book § 4061. “Plain error is reserved for extraordinary circumstances and situations in which the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Snead, 41 Conn. App. 584, 591, 677 A.2d 446 (1996). This is not the case here. Accordingly, we decline to review the claim under the plain error doctrine.

B

The defendant claims next that the trial court improperly refused to set aside the jury verdict because it was against the weight of the evidence. We disagree.

“A trial court’s decision to set aside a juiy verdict raises serious issues because of a litigant’s constitutional right to have issues of fact and the assessment of damages determined by a jury. ... [A verdict] should not [be] set aside . . . where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion . . . . It is rudimentary jurisprudence that where a verdict is challenged because of insufficient evidence, the question is whether the jury could reasonably have concluded upon the facts established and inferences reasonably drawn therefrom that the plaintiff had sustained his [or her] burden of proof. ... On appeal, the evidence will be construed in the light most favorable to supporting the jury’s verdict. . . . The decision to set aside the verdict, however, involves the exercise of the trial court’s broad discretion, which in the absence of a clear abuse will not be disturbed. In reviewing that decision, we accord it great weight and indulge every reasonable presumption in favor of its correctness.” (Citations omitted; internal quotation marks omitted.) Gold v. University of Bridgeport Law School, 19 Conn. App. 379, 380-81, 562 A.2d 570 (1989). We conclude that the trial court did not abuse its discretion in refusing to set aside the jury verdict as against the weight of the evidence.

C

The defendant claims next that the jury verdict should be set aside because it was excessive as a matter of law. We disagree.

“[T]he proper review of a trial court’s decision to . . . deny a motion to set aside the verdict as excessive as a matter of law is that of abuse of discretion. ...” (Citations omitted; internal quotation marks omitted.) Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 167, 681 A.2d 293 (1996); see also Mulligan v. Rioux, 229 Conn. 716, 753, 643 A.2d 1226 (1994), on remand, 38 Conn. App. 546, 662 A.2d 153 (1995). “On appeal, the test to be applied is whether the verdict ‘so shocks the conscience as to compel a reviewing court’s conclusion that it was due to partiality, prejudice or mistake.’ Martin v. Samulis, 24 Conn. App. 85, 89, 585 A.2d 1225 (1991).” Mauro v. Yale-New Haven Hospital, 31 Conn. App. 584, 591, 627 A.2d 443 (1993). “The refusal of the trial court to set aside the verdict, as in this case, is a significant factor in deciding whether it was excessive.” Wood v. Bridgeport, 216 Conn. 604, 611, 583 A.2d 124 (1990). We conclude that the trial court did not abuse its discretion in refusing to set aside the jury verdict as excessive.

II

The defendant claims next that the trial court improperly permitted the plaintiffs treating physician, Joel Feigenson, to testify at trial. Specifically, the defendant claims that he suffered prejudice because the plaintiff did not disclose Feigenson as an expert witness pursuant to Practice Book § 220 (D). The defendant failed to request a continuance to remedy the claimed disadvantage, however, and, therefore, we decline to review this claim further. See Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 749, 535 A.2d 1287 (1988).

III

The defendant claims next that the trial court improperly refused to take judicial notice of General Statutes § 14-227a. We disagree.

“[A] trial court’s determination not to take judicial notice is essentially an evidentiary ruling. . . . Our role in reviewing evidentiary rulings of the trial court is settled. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) Drabik v. East Lyme, 234 Conn. 390, 398-99, 662 A.2d 118 (1995). Our review of the record convinces us that the trial court did not abuse its discretion in denying the defendant’s request to take judicial notice of § 14-227a.

IV

The defendant claims next that the trial court improperly limited the testimony of his medical expert, Lewis Siegel. We disagree.

A trial court has broad discretion in ruling on the admissibility of evidence, and such discretion will not be disturbed on appeal except on a showing of a clear abuse of discretion. Hayes v. Manchester Memorial Hospital, 38 Conn. App. 471, 474, 661 A.2d 123, cert. denied, 235 Conn. 922, 666 A.2d 1185 (1995). At trial, the defendant attempted to have Siegel testify that the plaintiffs blood alcohol content was 0.152 at the time she was admitted to the hospital so that the jurors could make their own determinations as to what the plaintiffs condition was at the time of the incident. The trial court permitted Siegel to testify as to the plaintiffs condition at the time she was admitted to the hospital, but only for the purpose of challenging her credibility and not for showing what her condition was at the time of the incident. We conclude that the trial court did not abuse its discretion in limiting this evidence in this manner.

V

The defendant claims next that the trial court improperly refused to instruct the jury on the law of unavoidable accident. We disagree.

In most cases, “[a]n instruction on unavoidable accident serves no useful purpose and functions to confuse and mislead the jury and direct their attention from the primary issues of negligence, proximate cause and burden of proof. An additional, unnecessary instruction on the concept of unavoidable accident would only complicate the rules concerning negligence, proximate cause and burden of proof which must be explained to the jury. Instructions concerning unavoidable accident usually should be given only when the record can support a finding that the negligence of neither party is involved. When a foundation has been established it still remains within the sound discretion of the trial judge to determine whether an unavoidable accident charge is appropriate.” Tomczuk v. Alvarez, 184 Conn. 182 190-91, 439 A.2d 935 (1981). Here, the trial court did not abuse its discretion in refusing to charge the jury on the law of unavoidable accident.

VI

The defendant claims finally that the trial court improperly charged the jury on the intentional battery count. We disagree.

“A [jury] charge . . . is to be read as a whole without the dissection of its parts. It will not be the source of reversible error absent a determination that the probable effect of the charge was to lead the jury to an incorrect verdict. . . . The charge must be examined to determine whether it fairly presents a case to the jury so that no injustice results and it is not to be examined with a legal microscope, to search for technical flaws, inexact, inadvertent or contradictoiy statements.” (Citations omitted; internal quotation marks omitted.) Gajewski v. Pavelo, 36 Conn. App. 601, 609, 652 A.2d 509 (1995), aff'd, 236 Conn. 27, 670 A.2d 318 (1996). Viewing the trial court’s charge as a whole, we conclude that the trial court properly instructed the jury on the count of intentional battery.

The judgment is affirmed.

In this opinion the other judges concurred.

       At oral argument the following colloquy occurred.
      “The Court: Counsel, was there an exception taken to the trial court’s charging as to both theories of liability?
      “[Defendant’s Appellate Counsel]: No, Your Honor, there was not.”

       The following colloquy occurred:
      “The Court: Attorney Dustin, you have no evidence, as I understand it, concerning what her condition was at the time of this incident.
      “[Defense Counsel]: No, direct evidence, Your Honor, but what I would like for the jury to do is to hear what her condition was at 11:50 and make their determination based upon the expert’s assistance telling them what 0.152 means and they will have to decide—
      “The Court: That doesn’t tell them what 0.152 was—what she had at 10:30 .... Okay. I’m going to allow the testimony as to how it effects the general credibility and the jury will be specifically instructed as to—it is not being admitted as to what her condition was at the time of the incident .... Again, that is the court’s ruling because that doesn’t tell me anything about the way she was at 10:30. What I’m concerned with is the credibility issue of how much she had to drink. She testified two or three beers; he’s going to testify, ‘Hey that ain’t so.’ In my professional opinion with reasonable medical certainty she had a fair amount more than that.”

       The trial court, gave the following instructions regarding intentional battery: “For there to be an intentional battery the action producing the injury and the resulting injury must, be intentional. However, the resulting injury is deemed to be intentional when the bodily harm inflicted was a direct and actual consequence of the offensive conduct. So, if you find the defendant intended an offensive conduct with the plaintiff and the plaintiffs injuries were a direct and natural consequence of that offensive conduct then you would find the defendant liable for an intentional battery. . . . Now, as was indicated with the intentional battery, there is a claim also for punitive damages. ... In order to recover for such punitive damages the evidence must show wanton or willful malicious misconduct. A willful and malicious injury is one inflicted intentionally without just cause or excuse. It is not sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was a voluntary action of the person involved. Not only the action producing the injury but the resulting injury must also be intentional.”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. HECTOR VILLAFANE
    (AC 15505)
    Dupont, C. J., and Foti and Heiman, Js.
    Argued March 20
    officially released May 6, 1997

      Louis R. Pepe, with whom was Richard F. Wareing, for the appellant (defendant).

      C. Robert Satti, Jr., senior assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (a), and conspiracy to sell cocaine in violation of General Statutes § 53&A8. On appeal the defendant claims that the trial court improperly (1) denied his motion to dismiss and (2) instructed the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the early hours of May 5, 1994, members of the Bridgeport police department observed the defendant and a second individual involved in the sale of narcotics. The defendant was seen exchanging small items that he took out of a plastic bag for paper currency. The second individual twice was observed going to an automobile, using an alarm disabling device, entering the vehicle and removing plastic bags. Several times during the surveillance, the defendant was seen counting money.

As the defendant and the other person left the scene in the same vehicle, they were stopped and a search was conducted. The vehicle contained two guns and two plastic bags of crack cocaine vials in freebase form. The defendant was found to have $103 on his person. There were a total of 450 vials containing 40.9 grams of cocaine. Ten of the vials, weighing 0.93 grams, were analyzed for purity and found to be 97.5 percent pure cocaine.

I

The defendant first claims that the trial court improperly refused to dismiss the information charging a violation of § 21a-278 (a). He alleges that the statute violated both the equal protection clause of the fourteenth amendment to the United States constitution and article first, §§ 1 and 20, of the Connecticut constitution.

Our review of the record discloses that the defendant made an oral motion to dismiss just prior to the commencement of trial, claiming that there exists no rational basis to treat a person convicted of violation § 21a-278 (a), when that person possesses with intent to distribute crack cocaine, more harshly than one who possesses with intent to distribute powder cocaine. He failed to proffer legislative history or any evidence to support this claim. Further, the defendant made no oral argument relative to the state constitution. The trial court, without stating its reasons, denied the defendant’s motion from the bench.

A validly enacted statute carries with it a strong presumption of constitutionality and a person who challenges its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. Flemming v. Garnett, 231 Conn. 77, 88, 646 A.2d 1308 (1994); State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989). The parties agree that a rational basis review is the appropriate standard. State v. Reed, 192 Conn. 520, 531, 473 A.2d 775 (1984). “The question of classification is primarily one for the legislature, and the courts will not interfere unless a classification presented by statute is clearly irrational and unreasonable.” State v. Rao, 171 Conn. 600, 603, 370 A.2d 1310 (1976). While the defendant may claim that § 2 la-278 (a) was enacted without a rational basis thereby violating the equal protection clause of the state and federal constitutions, we have no record as presented to the trial court, from which we can so determine. In order to make such a determination we should look not only to the words of the statute itself, but also “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 . . . .” (Internal quotation marks omitted.) State v. McVeigh, 224 Conn. 593, 607, 620 A.2d 133 (1993). The jurisprudential background of the statute may also be reviewed. State v. Piorkowski, 236 Conn. 388, 404, 672 A.2d 921 (1996).

We conclude that this record is inadequate for any further review of the claim that § 21a-278 (a) is unconstitutional.

II

The defendant also claims that the trial court improperly provided the juiy with summaries of the incriminating evidence from which it could find him guilty, without making any reference to the exculpatory evidence from which it reasonably could have found him not guilty. The defendant did not object to the trial court’s instructions or file a request to charge, and seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or plain error review pursuant to Practice Book § 4061 (formerly § 4185).

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

The first two conditions relate to whether a claim is reviewable; the last two relate to the substance of the actual review and are reached only if the first two are met. State v. Lake, 43 Conn. App. 715, 722, 686 A.2d 510 (1996). The defendant’s claim is not of constitutional magnitude alleging the violation of a fundamental right. “[Rjeview of or comment on the evidence is not constitutionally mandated where the trial court, in the exercise of its sound discretion, determines that such commentary is not necessary and that the jury would be properly instructed and not misled in its absence.” State v. Lemoine, 233 Conn. 502, 512, 659 A.2d 1194 (1995). The extent to which a court should comment on the evidence is largely a matter within its sound discretion. Worden v. Francis, 153 Conn. 578, 580, 219 A.2d 442 (1966). The failure of the trial court, in the exercise of its discretion, to comment on evidence, is not a matter of constitutional magnitude. Absent a claim of constitutional magnitude, the defendant’s unpreserved claim fails to satisfy the second prong of Golding and is, therefore, not reviewable.

Even if we assume, arguendo, that the second prong of Golding is satisfied, our limited review would lead us to conclude that the defendant has failed to demonstrate that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial.

“The ultimate test of a court’s instructions is whether taken as a whole, they fairly and adequately present the case to a jury in such a way that injustice is not done to either party under the established rules of law.” State v. Harden, 175 Conn. 315, 322, 398 A.2d 1169 (1978). We review the entire charge to determine if it adequately guided the jury to a correct verdict. State v. Pratt, 235 Conn. 595, 613, 669 A.2d 562 (1995); see also State v. Pearsall, 44 Conn. App. 62, 67-68, 687 A.2d 1301 (1997). Viewing the charge as a whole, we conclude that it is not reasonably possible that the jury was misled or that an injustice resulted by virtue of the trial court’s charge. While the trial court did spend more time discussing the state’s evidence than that of the defendant, the record is clear that the state offered more evidence than the defendant offered. The defendant now argues that the trial court should have devoted more time to his affirmative defense to § 2 la-278 (a), and to exculpatory evidence presented, but never objected to the charge or specifically requested that the court instruct in that manner. The defendant’s constitutional right to a fair trial has not been violated in this case.

Because we find neither a clear violation of a fundamental right nor a deprivation of a Mr trial, the defendant’s unpreserved claim does not satisfy either the second or third condition as set forth in Stale v. Golding, supra, 213 Conn. 239-40. Therefore, the defendant cannot prevail. See State v. Gomez, 225 Conn. 347, 354, 622 A.2d 1014 (1993); State v. Romero, 42 Conn. App. 555, 563, 681 A.2d 354, cert. denied, 239 Conn. 935, 684 A.2d 710 (1996).

Plain error review is inappropriate here because the claimed error is not so obvious “that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); State v. Vas, 44 Conn. App. 70, 74, 687 A.2d 1295 (1997). The instructions read as a whole did not result in an unreliable verdict or miscarriage of justice. See State v. Cosby, 44 Conn. App. 26, 39, 687 A.2d 895 (1996). Plain error review is not warranted.

The judgment is affirmed.

In this opinion the other judges concurred.

       By amended information, the state charged, inter alia, “that at or about the 5th day of May, 1994, at Bridgeport or at other locations, [he], with intent that conduct constituting the crime of Violation of the State Dependency Producing Drug Law, to wit: Sale of Cocaine and Possession of Cocaine with intent to Sell, in violation of General Statutes § 21a-277 (a) be performed, agreed with one or more persons to engage in or cause the performance of such conduct, and there was committed one or more overt acts in the performance of such conspiracy, in violation of Section 53a-48 of the Connecticut General Statutes.” No verdict was returned on one count of a violation of the state dependency producing drug law in violation of General Statutes § 21a-277 (a), pursuant to the court’s instruction, and the defendant was found not guilty of weapons in a motor vehicle in violation of General Statutes § 29-38.

       This court is not bound to review claims of instructional error if the party raising the claim neither submitted a written request to charge nor excepted to the charge given by the trial court. Practice Book § 852; State v. Pearsall, 44 Conn. App. 62, 67, 687 A.2d 1301 (1997).


text:
    STATE OF CONNECTICUT v. JUAN MORALES
    (AC 14765)
    Foti, Lavery and Schaller, Js.

      Argued January 13
    officially released May 13, 1997

      Pamela S. Nagy, special assistant public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were James Thomas, state’s attorney, and John M. Massameno, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes (Rev. to 1991) § 53a-70 (a) (2), two counts of risk of injury to a child in violation of General Statutes § 53-21, and sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). The defendant claims that the trial court improperly (1) violated his right to confrontation by limiting cross-examination, (2) admitted as evidence a videotape of the complainant, (3) instructed the jury on a missing witness, and (4) allowed an ex post facto violation for the conviction of sexual assault in the first degree. He also claims that his due process rights were violated by prosecutorial misconduct. We reverse the judgment of the trial court in part.

The jury could reasonably have found the following facts. In the fall of 1988, D and her sister were enrolled in Maria Morales’ home day care. The defendant, who is Maria’s husband, lived there with their son and two daughters. The day care business was in Maria’s name and others in the family, including her daughters, her niece and the defendant, helped her.

The children for whom care was provided were often in the living room and television area; the adjoining rooms were the dining room and kitchen. A hallway connected that area to a bathroom and three bedrooms. When D’s mother dropped her off at about 9 a.m., the defendant was occasionally there. When D was picked up between 5:30 p.m. and 5:45 p.m., the defendant was usually there. At first, D seemed to like the defendant and was comfortable with him, running to him and often sitting on his lap. D sometimes described things to her mother that she had seen in one of the Morales’ bedrooms, and several times when D wanted to take her mother to one of the rooms to see toys Maria did not object.

Between the fall of 1989 and June, 1990, when D was three and one-half to four years old, she was watching television at day care when the defendant told her to come into his bedroom. Once inside, the defendant closed the door, pulled down D’s pants and touched her vaginal area and anus with his hands and finger. The defendant’s finger also penetrated D’s vagina, which was painful for D. The defendant told her not to tell anyone. The defendant also pulled his own pants down and showed her his penis. He then told her to touch his penis, which she later described as pointing up. Although D did not want to do so, she complied, and the defendant again told her not to tell anyone. D put her clothes back on and left the room. She told one of the defendant’s daughters some of what had happened, and the daughter told her to keep away from the bedroom.

During that time and the period that followed, D’s mother began to notice behavioral changes in D. For several weeks in the fall of 1989, D would cry and say she did not want to go to day care, but her mother thought it was just a phase. During that period, D complained that her vaginal area hurt, and her mother noticed some irritation there but thought D was simply not wiping herself properly. D’s mother cleaned the area and put ointment on it. Additionally, D would put her hands in her pants and touch her vaginal area and wanted running water on that area when she bathed. Thereafter, D got up at night crying with nightmares and was afraid to go to her bed. D also became curious about her father’s body. Although D was supposed to knock before opening a closed door, she would try to come into the room when her father was dressing or using the bathroom. During this time, D’s demeanor was less spontaneous, independent and lively. She also was distancing herself from the defendant.

In June, 1990, D’s mother, still unaware of the abuse, withdrew D and her sister from the Morales’ day care. Thereafter, D was enrolled in a school where children learned personal safety and privacy, including “good” and “bad” touches. In early 1991, while D’s mother was driving D home, D said she wanted to tell her something. She said it was a secret and her mother must promise not to tell anyone. After D’s mother promised, D told her that the defendant, “Juan,” touched her in her private area and that it “hurted,” and that he also made her touch his private area. D gave more details, saying that it had occurred in the defendant’s bedroom, that the defendant had pulled her pants down, touched her private area and that it hurt. She indicated that it had happened twice. She also said that she had cried, but no one could hear her because the door was closed and Maria was in another room. When her mother asked whether D had told anyone else, D repeated that the defendant had told her not to tell anyone.

After D’s mother reported what D had told her to the department of children and youth services, now known as the department of children and families, D was interviewed by Veronica Lugris, a social worker for the department. D seemed to know the difference between truth and lies and good and bad touches. Although she seemed happy when the interview began, when the subject of abuse arose, D had difficulty maintaining eye contact and was nervous and shy. Lugris interviewed D in a nonleading fashion as to the complaint, and D corroborated her earlier version of events. Lugris showed D anatomical drawings and D selected one of the preschool girl and another of an adult white male, circling where the touching had occurred.

On May 13, 1991, Frederick Berrien, a pediatrician specializing in child abuse, examined D. He set up a videotape, but covered the camera during the exam itself, so that only the audio was recorded. D appeared comfortable with questions about Maria Morales, but became extremely anxious and uncomfortable when asked about the defendant and possible abuse. D got up, moved away, began climbing a wall in the room, denied that the defendant had hurt her, repeated several times “nothing bad happened,” and changed the subject. Although the child had removed her clothes for doctors before, she got upset at having to disrobe and wear a gown.

D’s labia minora and majora were normal, but the hymenal opening was at least twice the normal size, at ten millimeters width, and the hymen was one to two millimeters thick, less than the usual thickness of five millimeters. These findings are consistent with penetration by a blunt object such as an adult finger. It was extremely unlikely the penetration was self-inflicted, as the area is very sensitive and doing so would be quite painful.

On October 26, 1994, Berrien examined D with a colposcope, an instrument with a camera, light and magnification capabilities. The hymenal opening had decreased to seven millimeters, which was consistent with healing. He was unable to determine the hymenal depth. He observed some thickening and a bump or mound, rather than a normal, smooth surface. He had not seen this in the first exam. While thickening and mounds can be normal, they are also found in abused children due to the scarring from trauma. The location of these features, near the bottom of the hymen, was also consistent with abuse.

In July, 1991, social worker Michaele Kelly met with D to address her emotional and behavioral problems. Initially, D did not look at Kelly, was not trusting and was excessively dependent on her parents, all atypical behavior for a child of D’s age, yet common for a child who has suffered abuse. In the first session, when asked whether anyone had ever touched her and made her feel uncomfortable, D first said no. When Kelly said this was a safe place and that D could trust her, D corroborated the abuse and named the defendant, although she acted uncomfortable and ashamed. The reporting did not appear rehearsed. D used appropriate language, but she spoke in a reluctant fashion, which is not unusual.

Although D initially reported one incident, Kelly believed abuse occurred more than once. D thereafter reported two incidents. Kelly saw D weekly for about four months in 1991. As the sessions progressed, D became more open, trusting and confident. At the end of those sessions, Kelly again asked D about the incident, and D gave the same information, with additional detail. Kelly resumed sessions with D in October, 1993, because D was acting out sexually, regressing and becoming asocial. During the additional therapy, D repeated her allegations regarding the defendant’s abuse.

I

The defendant claims that his right to confrontation, pursuant to the sixth amendment to the United States constitution, and article first, § 8, of the Connecticut constitution, was violated when the trial court disallowed questions about the victim’s other allegation of abuse and the sleeping arrangements in her home.

A

The following facts are relevant to this claim. The trial court, prior to trial, ordered disclosure of a portion of the record prepared by Lugris, in which a reference was made that D had claimed that the defendant’s son had molested her during the same time frame. At trial, when asked during cross-examination, D could not remember what she talked to Kelly about, including whether she ever spoke about the defendant’s son. When D was asked if she had discussed the son with Berrien, the state objected and, in the absence of the jury, referred to a motion in limine that the court had granted that required the defendant to make an offer of proof prior to presenting evidence intending to show third party culpability. The state also argued that any questions about the defendant’s son regarding an alleged reference by D to sexual molestation fell within the rape shield statute requiring a preliminary ruling by the court.

The defendant argued that he was not claiming third party culpability as to his son but rather, that D’s ability to recall any incident with his son would be pertinent to veracity and also to show the extent of the investigation conducted by the department of children and families. The defendant also claimed that the rape shield statute was inapplicable. The defendant indicated that he would call his son as a witness to testify that he had not molested D. The defendant also indicated that he intended to inquire of D’s mother, along with Lugris and Berrien, if they were present when D made an allegation as to the defendant’s son, in order to impeach D’s credibility and ability to recall.

The court sustained the state’s objections. The court found that there was no evidence that D was confused about her allegations of abuse and that full cross-examination was available to test D’s credibility. Because D could not recall any allegation against the defendant’s son, other witnesses could not be used to impeach D on this point.

The defendant argues that his questions on cross-examination of D about her statement regarding his son are not barred by the rape shield statute because they were in fact false allegations of sexual abuse and not actual sexual conduct. He claims that, if the rape shield statute does apply, he was entitled to question in this regard under its subsection that allows evidence that is “otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.” General Statutes § 54-86f (4). It is, however, the defendant’s burden to establish even the inference that the victim’s prior allegation of sexual abuse was false. State v. Barrett, 43 Conn. App. 667, 674, 685 A.2d 677 (1996). Meeting that burden is necessary to show the relevance of the allegation to the complainant’s credibility. State v. Slater, 23 Conn. App. 221, 225, 579 A.2d 591 (1990). The failure of the defendant to establish the falsity of the prior allegation may cause that evidence to be excluded as irrelevant. See id.

Our review of the record discloses that the defendant failed to sustain such a burden. The defendant’s claim of falsity is not evidence, nor can such be established by the defendant’s attempt to have his son testify that the allegation, if made, was false. See State v. Barrett, supra, 43 Conn. App. 674 n.7. A poor or flawed memory by D in making an accusation is not sufficient to supply evidence of falsity. We conclude, therefore, that the trial court did not violate the defendant’s right to confrontation by excluding evidence as to a possible prior allegation of sexual abuse by another. After reviewing the record, we also conclude that the defendant was afforded wide latitude in his cross-examination of D relative to her credibility, and of other witnesses for purposes of questioning D’s testimonial capacity. The defendant’s claim that D could not properly recollect her accusation against his son and that this affected her credibility is unavailing because the trial court specifically found that D was not confused at all about the events or identity of the perpetrator. See State v. Kulmac, 230 Conn. 43, 55, 644 A.2d 887 (1994).

B

The defendant also claims that his right of confrontation was violated because he was precluded from inquiring into the sleeping arrangements in D’s home.

The state called D’s mother in rebuttal to refute another witness’ testimony. When the defendant asked D’s mother on cross-examination how many bedrooms were in her house, the state objected as to relevance. The defendant claimed that experts on sexual abuse stress the importance of investigation of prior abuse and family attitudes about sex and modesty, so that where the victim slept and with whom she slept were relevant, and that the presence of teenage brothers posed “modesty issues.” The state argued that the requirements of outside investigations were irrelevant, that the question was outside the scope of direct examination and that it did not meet the requirements for third party culpability. The defendant reiterated that the issue was pertinent regarding expert investigation of abuse, and that D’s mother had spoken about the level of modesty in the home. The state replied that D’s mother was not an expert. The court ruled that the defendant could explore any and all subjects actually raised on direct examination but that, because the state had not raised the issue of sleeping arrangements, the defendant could not either. The defendant did not seek to cross-examine D’s mother again regarding sleeping arrangements, nor did he call her as his own witness to inquire directly on that subject.

The right of a defendant to cross-examine a prosecution witness is not absolute. State v. Stevenson, 43 Conn. App. 680, 695, 686 A.2d 500 (1996). It is well settled that the scope of cross-examination is limited to matters covered in the direct examination, except as they involve credibility. State v. Ireland, 218 Conn. 447, 452, 590 A.2d 106 (1991). “The court has wide discretion to determine the scope of cross-examination.” State v. Hernandez, 224 Conn. 196, 208, 618 A.2d 494 (1992). A question is within the scope of the direct examination if it is intended to “rebut, impeach, modify or explain any of the [witness’] direct testimony . . . .” State v. Zdanis, 173 Conn. 189, 196, 377 A.2d 275 (1977).

From the record before us, it is apparent that the trial court properly restricted cross-examination from exceeding the scope of evidence presented by the state on direct examination. Following the witness’ testimony on rebuttal, the defendant, on cross-examination, did not seek to inquire about sleeping arrangements, nor did he call D’s mother as his own witness and seek that information directly. We conclude that the trial court did not abuse its discretion in restricting improper cross-examination.

II

The defendant next claims that the trial court improperly admitted into evidence a videotaped interview of the victim under the constancy of accusation doctrine. He claims that, although he did not object to the admission of the evidence, he nevertheless preserved his claim by “objecting to constancy testimony.” He claims that the videotaped interview, taken one year after the event, along with the testimony of several witnesses under the constancy of accusation doctrine, deprived him of a fair trial and violated his rights of equal protection and confrontation. He concedes that he did not object to the testimony of Lugris or to the offer of the videotape, but he claims that previous objections to constancy of accusation testimony were overruled and further objection would have been futile. In the event that we conclude that the claim was not properly preserved, the defendant seeks review under the plain error doctrine pursuant to Practice Book § 4061 or under the Evans-Golding doctrine.

Over the defendant’s objection, constancy of accusation testimony was given by witnesses Lugris, Kelly and Berrien. Pursuant to policy of the department of children and families, Lugris videotaped an interview with D on March 25,1992. Because that tape was defective, she videotaped D again on April 15, 1992. The tape of that interview was admitted without objection. During the trial court’s final instructions, the court charged on the law concerning constancy of accusation. The defendant noted no objection.

The defendant did not properly preserve this claim at trial. Practice Book § 288. He asks that we abandon the use of the doctrine of constancy of accusation because such testimony is inherently unreliable, and the doctrine is based on outmoded and gender biased notions. We are bound by Supreme Court precedents. Our Supreme Court has indicated that constancy testimony does not violate a defendant’s right to confrontation; State v. Angelí, 237 Conn. 321, 325, 677 A.2d 912 (1996); State v. Troupe, 237 Conn. 284, 291-93, 677 A.2d 917 (1996); nor does it violate equal protection as being gender based. State v. Kelley, 229 Conn. 557, 565, 643 A.2d 854 (1994). The defendant raised no objection, constitutional or otherwise, at trial. We will not review this claim because it is not of constitutional magnitude alleging a violation of a fundamental right. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

The defendant also seeks plain error review, alleging that the erroneous admission of this allegedly staged constancy evidence was so obvious as to affect the fairness and integrity of public confidence in the judicial proceedings. The defendant argues that the state staged the interview with D over one year after her initial complaint for the sole purpose of having D repeat her allegations and playing the tape at trial. The defendant further argues that the tape was not made under ordinary, reliable or natural circumstances.

We have recently rejected claims that a videotaped interview taken two years after an initial allegation was taken at a time unnatural for the victim to disclose the abuse; State v. Marshall, 45 Conn. App. 66, 73-75, 694 A.2d 816 (1997); and should not have been admitted at trial as constancy of accusation evidence because it was prepared for use by the prosecution. Id. The timing and the naturalness of the interview are matters for the jury to weigh. State v. Parris, 219 Conn. 283, 292, 592 A.2d 943 (1991).

In this case, as in Marshall, the defendant was not deprived of the opportunity to examine the videotaped interview before trial and before D’s testimony. He had the opportunity to cross-examine D regarding any claimed inconsistencies and to cross-examine Lugris about the circumstances under which the child’s statements were recorded. See State v. Marshall, supra, 45 Conn. App. 74-75; see also State v. DePastino, 228 Conn. 552, 568-69, 638 A.2d 578 (1994). We conclude, therefore, that the videotaped interview of D was properly admitted into evidence.

Ill

The defendant next claims that the trial court improperly instructed the jury on a missing witness and that we should abolish the Secondino instruction because it violates a defendant’s right to due process to present a defense and to a fair trial.

The underlying facts are as follows. One of the defendant’s daughters testified as to her work at the day care, her mother’s policies regarding supervision of the children and the hours that the defendant was usually present at the day care. The defendant did not call his wife to testify. Evidence was admitted that Maria Morales was served with a state’s subpoena at the defendant’s address. The trial court gave a Secondino instruction to which the defendant did not object.

We will not review this claim. “In order for such a rule to have any efficacy, objections by a party opposing such an instruction should be made at the time the advance ruling is sought. A party who fails to make a timely objection to the giving of a Secondino charge will be deemed to have waived the issue for appeal. The giving of a Secondino charge is purely an evidentiary issue and is not a matter of constitutional dimensions.” State v. Anderson, 212 Conn. 31, 41-42, 561 A.2d 897 (1989).

The defendant did not properly preserve this claim at trial. He has requested that we review it under Golding. We conclude that the defendant cannot satisfy the second prong of Golding because he has failed to demonstrate that his claim alleges a violation of a fundamental constitutional right.

“[0]nce identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed.” State v. Golding, supra, 213 Conn. 241. Because we conclude that the defendant has not presented a constitutional claim, we will not review the issue of whether the missing witness charge was warranted.

The defendant also alleges that the missing witness doctrine is unconstitutional because it forces him to present evidence to rebut the inference, thereby shifting the burden of proof to him. His argument must fail. State v. Annunziato, 169 Conn. 517, 536-39, 363 A.2d 1011 (1975) (ruling that Secondino charge in no way violates defendant’s constitutional rights); see also State v. Peary, 176 Conn. 170, 182, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979); State v. Lucci, 25 Conn. App. 334, 344-45, 595 A.2d 361, cert. denied, 220 Conn. 913, 597 A.2d 336 (1991); State v. Hudson, 14 Conn. App. 464, 471, 541 A.2d 534, cert. denied, 209 Conn. 803, 548 A.2d 439 (1988).

The defendant’s claim also does not merit review under the plain error doctrine of Practice Book § 4061. When a trial court’s actions do not result in any manifest injustice, a defendant’s claim of plain error does not warrant review. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Webb, 37 Conn. App. 722, 730-31, 657 A.2d 711, cert. denied, 234 Conn. 915, 660 A.2d 357 (1995). We conclude that the trial court’s instruction on the missing witness did not result in manifest injustice and accordingly does not warrant review.

IV

The defendant claims that the state committed prosecutorial misconduct throughout the trial in such an egregious pattern that it deprived him of his due process rights and his right to a fair trial. He alleges this misconduct took place during the examination of witnesses and closing arguments. He claims that he is entitled to review by this court because he objected to inappropriate questions and because he requested a mistrial after one such question. The defendant, however, never claimed misconduct at trial, and did not object to the state’s summation. Nor did the defendant seek curative measures from the court. He, therefore, seeks review under Golding.

“When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial. ‘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.’ State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984).” State v. Floyd, 10 Conn. App. 361, 364, 523 A.2d 1323, cert. denied, 203 Conn. 809, 525 A.2d 523, cert. denied, 484 U.S. 859, 108 S. Ct. 172, 98 L. Ed. 2d 126 (1987).

“We will not afford Golding review to 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.” State v. Young, 29 Conn. App. 754, 766, 618 A.2d 65 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287 (1993). We review the comments and actions complained of in the context of the entire trial. State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993).

The defendant claims that the misconduct took place during the state’s cross-examination of him on the use of alcohol and its effect on his judgment, and on whether he considered striking his wife to be a minor thing. The defendant’s objections were overruled to all questions in issue. The defendant also alleges that the state committed misconduct during closing arguments by commenting on the defendant’s testimony on the use of alcohol, by improperly invoking the sympathy of the jury for D, by improperly commenting on facts not in evidence, and by arguing about the defendant’s motive and the credibility of D and other witnesses.

After a painstaking review of the record, we conclude that the defendant has not shown a pattern of repeated and blatant misconduct so egregious that it overrode the trial court’s instructions so as to deny him a fair trial.

V

On appeal, the defendant claims that his conviction of sexual assault in the first degree constituted an ex post facto violation, in that he was punished for a class B felony for acts that may have been a class C felony when allegedly committed. He also claims that the state failed to prove an essential element of the crime, that it occurred after October 1, 1989, and, consequently, there was insufficient evidence. Because the defendant failed to raise this claim at the trial level, he seeks plain error or Golding review. When the record supports the allegation that the state has not proved every element of the crime with which a defendant has been charged, Golding review is warranted. See State v. Aleksiewicz, 20 Conn. App. 643, 645 n.1, 569 A.2d 567 (1990).

The defendant was charged with a violation of General Statutes § 53a-70 (a) (2), sexual assault in first degree, “at some unknown time between the fall, 1989, and June, 1990 . . . .” Subsection (2) became effective October 1, 1989. Prior to that time, the only statute prohibiting similar conduct was sexual assault in the second degree, General Statutes § 53a-71, which proscribed intercourse with a person under the age of sixteen. If committed on or after October 1, 1989, the act of intercourse with an underage minor is punishable as a class B felony, but if it was committed prior to that date, it would be punishable as a class C felony.

The trial court instructed, as requested by the state and without objection by the defendant, that the date and time of the offenses were not elements of the crime and that the jury need not make these factual findings. Following his conviction before the trial court, the defendant was sentenced to a period of incarceration of fifteen years on the count of sexual assault in the first degree, execution suspended after seven years, followed by five years of probation. The terms of sentencing on the other counts ran concurrently.

The issue is controlled by State v. Owen, 40 Conn. App. 132, 141-46, 669 A.2d 606, cert. denied, 236 Conn. 912, 673 A.2d 114, cert. denied, 237 Conn. 922, 676 A.2d 1376 (1996). The state argues that “[bjecause the instant claim was never raised at trial and does not concern sufficiency but [rather] whether an ex post facto violation occurred, Owen does not control.” Here, the defendant has raised a sufficiency claim.

In determining whether there was sufficient evidence for the jury to find that the act or acts took place after October 1, 1989, we review the evidence in the light most favorable to sustaining the verdict. State v. Williams, 231 Conn. 235, 251, 645 A.2d 999 (1994). The defendant does not contest the issue of sufficiency of the evidence insofar as it refers to whether the act or acts took place, but only, as in Owen, “whether the testimony supports the jury’s conclusion that the defendant committed that act [or those acts] on or after October 1, 1989.” State v. Owen, supra, 40 Conn. App. 143. Further, the jury could not use the constancy of accusation testimony for that purpose. See id., 145.

The state also argues that we should distinguish Owen from the present case because here, unlike in Owen, the court never instructed on the issue as part of jury instructions. This argument, however, would weaken, not strengthen, the state’s position. Regardless of whether instructions were given, the issue still remains one of sufficiency, i.e., whether the evidence was sufficient for the juiy to “have reasonably concluded beyond a reasonable doubt that the act [or acts] occurred on or after October 1, 1989.” Id., 145-46.

The state also points out that the time period between the fall of 1989 and June, 1990, amounts to 282 days (assuming a fall equinox of September 22, 1989), only nine days of which (fewer than one in thirty) fell before October 1, 1989. This, the state argues, leads to the conclusion that the probability that abuse occurred during the days before October 1, 1989, is quite small. Probability, however, is not sufficient under the circumstances that we have before us. The state is not required “to limit the date in the information more narrowly than the evidence available warrants, even if the defendant attempts to assert an alibi defense.” State v. Bergin, 214 Conn. 657, 675, 574 A.2d 164 (1990); see also State v. Blasius, 211 Conn. 455, 461, 559 A.2d 1116 (1989); State v. Laracuente, 205 Conn. 515, 519, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). Although the rule in this state is that it is not essential in a criminal prosecution that the crime be proven to have been committed on the precise date alleged; State v. Lorusso, 151 Conn. 189, 191, 195 A.2d 429 (1963); and that time is not usually an essential element of an offense; State v. Ramos, 176 Conn. 275, 276-77, 407 A.2d 952 (1978); where the defendant is subjected to having a greater sentence imposed because of the date, actual prejudice occurs. We, therefore, are not dealing with an improper charge on an essential element of the crime here. The jury need not, as an essential element of the crime, find that the act or acts occurred on a specific day. It is sufficient if they find that they occurred some time between the beginning of fall, 1989 and June, 1990. As in Owen, our review of the record leads us to conclude that the evidence does not support a conclusion that the jury could reasonably have concluded beyond a reasonable doubt that the act or acts occurred after October 1, 1989. The defendant could not, therefore, have been found guilty of violating § 53a-70 (a) (2), sexual assault in the first degree. The evidence was, however, sufficient for a conviction of sexual assault in the second degree in violation of § 53a-71 as a lesser included offense. It is clear that the jury concluded that sufficient evidence was presented to justify a finding beyond a reasonable doubt that the defendant had committed the act or acts constituting the crime of sexual assault on the child D during the period of time as charged. Sexual assault in the second degree, under the facts and circumstances of this case, is necessarily a lesser offense of sexual assault in the first degree.

The judgment is reversed only as to the charge of sexual assault in the first degree, General Statutes § 53a-70 (a) (2), and the case is remanded with direction to render a judgment of not guilty on that charge and guilty of sexual assault in the second degree in violation of General Statutes § 53a-71, and to resentence the defendant in accordance therewith.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1991) § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, or the health of such child is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined no more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . . .”

       General Statutes § 54-86f, the rape shield statute, provides in pertinent part: “In any prosecution for sexual assault ... no evidence of the sexual conduct of the victim may be admissible unless such evidence is . . . (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct ... or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera .... If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. . . .”

       The defendant alleges, as part of his broad claim, that the trial court improperly prohibited him from cross-examining D’s mother, Berrien and Lugris about his son. He claims that the “issue also went to each constancy of accusation witness’s credibility; why did they accept one allegation and not the other?”

       The defendant states that the trial court, noted in overruling a prior objection to constancy of accusation testimony that it was not ready to “overrule the Supreme Court.”

        State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

       Practice Book § 288 provides: “Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as counsel desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point.”

        Troupe imposed new limitations regarding the doctrine that “apply only to cases in which constancy of accusation testimony has not yet been admitted into evidence on the date of the publication of this opinion. . . . [0]ur decision to modify the constancy of accusation doctrine is based solely on policy considerations and not on constitutional grounds. . . . Thus, we see no reason to order a new trial in this or any other case in which testimony had been properly permitted under our former version on the constancy of accusation doctrine.” State v. Troupe, supra, 237 Conn. 305-306.

       In addition to a violation of his federal rights to equal protection and to confrontation, the defendant also alleges a violation of his rights under article first, § 8, of the Connecticut constitution. Because he offers no separate analysis of this claim under the state constitution, we will not review it. State v. Williams, 231 Conn. 235, 245 n.13, 645 A.2d 999 (1994).

         Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960).

       The defendant has withdrawn an additional claim that the Secondino inference directly conflicts with the operation of the marital privilege.

       We find it unnecessary to discuss the alleged acts of misconduct. As we have recently commented, a prosecutor may present a strong and cogent argument, but must refrain from trying to arouse prejudice in the jurors, or from diverting their attention from their duty to base their conclusions on the evidence actually presented at trial. State v. Stevenson, 43 Conn. App. 680, 697, 686 A.2d 500 (1996).


text:
    JASON ZIRUK v. RICHARD A. BEDARD ET AL.
    (AC 15713)
    Foti, Schaller and Harrigan, Js.
    Argued February 21
    officially released May 13, 1997

      Richard A. Bedard, pro se, the appellant (named defendant), with whom was Robert E. Graham.

      Zbigniew S. Rozbicki, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant Richard A. Bedard appeals from the trial court’s denial of his motion to open the judgment rendered in favor of the plaintiff, following a default against Bedard for failure to plead.

The facts relevant to this appeal are as follows. By complaint dated June 2, 1994, the plaintiff instituted the underlying action against the defendants seeking monetary damages for false representations allegedly made by the defendants in connection with the sale of certain investment securities. On July 6, 1994, the defendant Bedard, who appeared pro se, filed a motion to dismiss. The matter was assigned for a hearing on July 25,1994. The motion was denied after Bedard failed to appear to claim his motion. Bedard was defaulted for failure to plead on May 10,1995. Thereafter, he filed a “motion for dismissal for failure to plead,” which was denied by the court on June 13,1995. On June 29,1995, he filed a motion to open the default, which was also denied by the court on August 7, 1995. On August 21, 1995, Bedard filed a “motion to dismiss on grounds of jurisdictional defect.” On August 21, 1995, the trial court conducted a hearing in damages. The trial court rendered judgment against Bedard in the amount of $20,000, plus interest of $2389.08 and costs. On December 26, 1995, Bedard filed a motion to open the judgment, which was denied on January 29, 1996. On February 20, 1996, Bedard filed this appeal.

Our courts have the inherent authority to open, correct or modify judgments, but this authority is restricted by statute and the rules of practice. Batory v. Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990). For a trial court to open or set aside a default judgment, a motion to open or a motion to set aside must be filed within four months of the date judgment is rendered. General Statutes § 52-212 (a); see also General Statutes. § 52-212a; Practice Book § 326. When a motion to open is timely filed, our review is limited to whether the court has acted unreasonably or has abused its discretion. In re Baby Girl B., 224 Conn. 263, 295, 618 A.2d 1 (1992); Gillis v. Gillis, 214 Conn. 336, 341, 572 A.2d 323 (1990). When the motion to open is not timely and the time limitation has not been waived, however, the trial court lacks jurisdiction to open the judgment. Connecticut NationalBank v. Oxenhandler, 30 Conn. App. 541, 546-47, 621 A.2d 300, cert. denied, 225 Conn. 924, 625 A.2d 822 (1993).

It is clear from the record that judgment was rendered on August 21, 1995, and that Bedard did not file his motion to open until December 26, 1995. Because the motion was not filed within four months of the date judgment was rendered based on Bedard’s default, and because Bedard has made no claim that the plaintiff waived the time limitation of the statute and rule of practice, the trial court lacked jurisdiction to open the judgment and properly denied Bedard’s motion.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to the named defendant, there are two other defendants, David Easinsky and Allen, Bedard & Associates, Inc., who are not parties to the appeal.

       The record fails to disclose whether the trial court took any action on this motion, the default remaining in effect.

       The record discloses that the defendant David Easinsky appeared but that the defendant Bedard did not.

       Bedard’s appeal itself may be untimely. The record, however, does not disclose when notice of the denial of his motion to open was sent. See Dime Savings Bank v. Saucier, 44 Conn. App. 812, 692 A.2d 1288 (1997).

       General Statutes § 52-212 (a) provides: “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 or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”

       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 . . .”

       Practice Book§326 provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months of the entry of judgment. . . .”

       Bedard also filed a “motion to open judgment” on September 5, 1995, alleging that the trial court lacked both “in personam” and subject matter jurisdiction and asking that the default entered for failure to plead on May 8, 1995, “and judgment upon said default entered on May 10, 1995,” be set aside. On September 18,1995, the trial court denied the motion. The defendant did not appeal. Even if we assume, arguendo that this motion was a proper and timely motion to open directed to the judgment rendered on August 21, 1995, our inquiry is “not whether the denial of a motion to open a judgment . . . after a timely filing of the motion ended the power of the court to act further in the matter, but whether the court retained jurisdiction to grant a timely motion to open after having denied the motion.” Gardner v. Pilato, 44 Conn. App. 724, 727, 692 A.2d 843 (1997). We concluded in Gardner that, on the basis of the facts of that case, the trial court retained jurisdiction to open the judgment and to correct an injustice. On the basis of the facts in this case, however, we cannot conclude that the trial court retained such jurisdiction.


author: PER CURIAM.

text:
    DANIEL KEYES, JR. v. PENNSYLVANIA GENERAL ACCIDENT INSURANCE COMPANY
    (AC 15462)
    Dupont, C. X, and O’Connell and Hennessy, Js.
    Submitted on briefs March 6
    officially released May 13, 1997

      Frank J. Kolb, Jr., and Louis A. Crisci, Jr., filed a brief for the appellant (plaintiff).

      Michael J. Quinn filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff appeals from the trial court’s judgment confirming an arbitration award in favor of the defendant. The issue submitted to the arbitrators was framed as follows: “Where the injured nonresident passenger recovers the full liability coverage from the at fault car’s carrier in a one car accident under a single limit $300,000 policy which insures three (3) cars, does the claimant have an underinsured motorist claim against the same earner for the balance of the policy?”

A majority of the three member arbitration panel answered the question in the negative. The trial court denied the plaintiffs motion to vacate the arbitration award and granted the defendant’s motion to confirm the award. The plaintiff appealed to this court.

We are persuaded by our examination of the record and consideration of the briefs of the parties that the judgment of the trial court should be affirmed. In a thoughtful and comprehensive memorandum of decision, the trial court analyzed the law in a manner consistent with our statutes and case precedents. Keyes v. Pennsylvania General Accident Ins. Co., 44 Conn. Sup. 499, 695 A.2d 543 (1995). Because that memorandum addresses the arguments raised in this appeal, we adopt the trial court’s well reasoned decision as a statement of the applicable law. It would serve no useful purpose for us to repeat the discussion contained therein. See Yantic Volunteer Fire Co. v. Freedom of Information Commission, 42 Conn. App. 519, 522, 679 A.2d 989 (1996); State v. Mobley, 33 Conn. App. 103, 105, 633 A.2d 726 (1993), cert. denied, 228 Conn. 917, 636 A.2d 849 (1994).

The judgment is affirmed.

       After the appeal was filed, the plaintiff died. On November 1, 1996, we granted the motion of Daniel Keyes, Sr., administrator of the plaintiffs estate, to be substituted as the plaintiff.


author: DUPONT, C. J.

text:
    STATE OF CONNECTICUT v. ALEX KELLY
    Dupont, C. J., and O’Connell, Foti, Lavery and Spear, Js.
    Argued April 4
    officially released April 15, 1997

      Ralph G. Elliot, Elias A. Alexiades and Alan Neigher, in support of the petitions.

       April 15, 1997, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

DUPONT, C. J.

This matter concerns two joint petitions for review of a tiial court closure order, one filed by the Hartford Courant and the Stamford Advocate and the other by LWWI Broadcasting, Inc., doing business as television station WTNH News Channel 8 (WTNH) and Rainbow Connecticut Holdings, Inc., doing business as News 12 Connecticut. The petitions were filed pursuant to General Statutes § 51-164X and Practice Book § 4166. The closure order of the trial court, rendered on its own motion, stems from the defendant’s amended motion to dismiss the pending charges against him of kidnapping in the first degree and sexual assault in the first degree. A previous trial involving the same charges ended in a mistrial. The closure concerns a newspaper article published after the mistrial was declared. After a hearing held in this court to review the closure order, pursuant to Practice Book § 4166 (a), we vacate the order of the trial court.

The defendant’s amended motion to dismiss alleged that “either the state, law enforcement authorities or persons associated with the complainants leaked information to the media about new allegations against Mr. Kelly” and that “the state, and/or its agents, including the complainant’s attorney, have made prejudicial public statements which were disseminated in the local and national media,” which actions frustrate the defendant’s ability to obtain a fair trial.

The court, in barring the news media and the public from hearings regarding the information alleged by the defendant to have been supplied to the media, made certain findings.

The issues to be decided in that portion of the hearing ordered closed concern the sources for information in a certain article by the Hartford Courant and whether there was any prosecutorial misconduct involved.

A right of public access to pretrial criminal proceedings has been recognized by the United States Supreme Court and this court. See Press-Enterprise v. Superior Court, 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986); State v. Franzese, 23 Conn. App. 433, 580 A.2d 538 (1990). The test set out in Press-Enterprise for ordering a court closure requires that the trial court (1) articulate specific findings after a hearing, (2) find that the closure is essential to preserve “higher values,” (3) narrowly tailor the order to serve the interest sought to be protected, (4) find a “substantial probability” that the interest sought to be protected will be prejudiced by the open courtroom and that closure would prevent the prejudicial effect, (5) consider reasonable alternatives to closure and conclude that they would not adequately protect the defendant’s right to a fair trial. Press-Enterprise v. Superior Court, supra, 13-15.

At the hearing concerning the trial court’s sua sponte order of closure, the court considered the criteria established in Press-Enterprise. The court stated that the reason for the closure order was to preserve the defendant’s interest in selecting, impaneling and being tried by a jury in Stamford that is as free from the influence of adverse publicity as possible. The court, however, did not explain how closing a portion of the hearing concerning the defendant’s amended motion to dismiss would protect that “higher value,” the second prong of Press-Enterprise. The portion of the hearing on the defendant’s motion to dismiss that the court ordered closed concerns the source for the Hartford Courant article. A determination of the source does not involve evidence concerning the truth or the contents of the allegations in the article regarding uncharged misconduct. The hearing would primarily concern whether there was prosecutorial misconduct involved in leaking information to the press and whether that involvement would warrant dismissal of the charges against the defendant. It is unclear how this portion of the hearing would be prejudicial to the defendant’s interest in having an unbiased jury pool for his impending trial on the previous charges. The third prong of Press-Enterprise is met because only aportion of the hearing was ordered closed in order to conform to the court’s view of the prejudice to the defendant.

The court found, as to the fourth prong of Press-Enterprise, that there is a substantial probability that the defendant’s rights to a fair trial would be prejudiced and that closure would prevent the information contained in the newspaper article from being further disseminated to the current jury pool. The court, in discussing the fifth prong of Press-Enterprise, noted that it was not aware of any alternatives to closure that would accomplish this goal although it had considered alternatives. The court indicated that it had considered sequestration of the jury but had denied the request for sequestration, and there was no method for sequestering a jury pool during pretrial proceedings. The court indicated that extensive voir dire would be permitted, but that if the publicity had infected the jury pool, the court would reconsider the defendant’s motion for a change of venue. The court concluded, however, that voir dire was not a satisfactoiy alternative to closure in light of the recent publicity. Admonition of the jury was also considered but the court indicated that such instructions would not be adequate to correct the current publicity problem. The court considered a “gag order” but held that such an order would substantially impact on first amendment rights and would not be appropriate. The court noted that voluntary restraint by the media was another option that it had considered. The court also considered a continuance but stated that it would not continue the case because the charges had been pending for some time.

Although the court considered the criteria of the Press-Enterprise case, most of its statements regarding the likelihood of prejudice to the defendant’s right to an impartial jury and the possible alternatives to closure are conclusory. The federal constitution’s first amendment right of public access to courts cannot be overcome by a conclusory assertion that publicity might deprive the defendant of a fair trial. See Press-Enterprise v. Superior Court, supra, 478 U.S. 13-14. Moreover, the portion of the hearing on the amended motion to dismiss to which the closure order applies, i.e., the source of the November 15,1996 Hartford Courant article and whether prosecutorial misconduct was involved, does not have a direct impact on the issue of whether the defendant can obtain a fair trial, with an impartial jury, on the pending charges.

The necessity for closure, given the tenuous connection between what might be elicited at a hearing on the defendant’s motion to dismiss and the ability to obtain an impartial jury in Stamford, is especially questionable in light of the extensive prior publicity concerning the defendant and the charges against him, including the extensive publicity about the Hartford Courant article itself. The trial court summed up the prior dissemination of the Hartford Courant article by stating that the “cat is out of the bag.”

Furthermore, questions of alleged prosecutorial misconduct, which impinge on the integrity of the judicial system, would also militate against closure because the public’s confidence in the criminal justice system could be undermined by closure of the court to consider such issues. Closure of a courtroom should be sparingly granted because public hearings and public trials vindicate an important societal interest in the judicial system and openness of the courts enhances the basic fairness of that system, which is essential to public confidence in it. Ostolaza v. Warden, 26 Conn. App. 758, 769, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).

The trial court’s closure order of March 19, 1997, is vacated.

In this opinion the other judges concurred.

       General Statutes § 51-164x provides in relevant part: “(a) Any person affected by a court order which prohibits any person from attending any session of court . . . whether at a pretrial or trial stage, shall have the right to appeal such order by filing a petition for review with the Appellate Court within seventy-two hours from the issuance of such court order.”

       Practice Book § 4166 provides in relevant part: “(a) Except as provided in paragraph (b), any person affected by a court, order which prohibits the public or any person from attending any session of court may seek review of such order by filing ... a petition for review with the appellate court, within seventy-two hours after the issuance of the order.”

       The media entities seeking to overturn the trial court's closure order filed motions in the trial court to intervene at the trial court hearing on its own motion, which motions were denied. They were permitted, however, to argue at the trial court hearing. The media entities have not attempted to appeal from the denials of their motions but any question as to intervention is moot in view of our vacation of the trial court order.

       The order reads in relevant part as follows: “It is ORDERED that
      “1. The public including all news media be excluded from all hearings regarding information supplied to news media representatives regarding the 11/15/96 Hartford Courant article on State v. Kelly which is the subject of the defendant’s February 3, 1997 Amended Motion to Dismiss and that,
      “2. All files, affidavits, documents, transcripts, notes, evidence, motions and other materials on file with the court and filed or to be filed in connection with said February 3, 1997 Amended Motion to Dismiss, regarding information supplied to any news media representative regarding the 11/15/96 Hartford Courant article on State v. Kelly be sealed to the public including all news media and that,
      “3. No party, counsel, witnesses or prospective witnesses in this matter shall provide, reveal, discuss or disseminate said sealed material . . . .”

       In accordance with Practice Book § 4166, a hearing was held at 10 a.m. on April 4,1997, the fifth business day after the day on which the certificate of completion provided for by § 4019 (c) was filed with the appellate clerk. The decision to vacate the order was announced by the appellate clerk on April 4, 1997. The petitioners were represented by counsel and participated in the hearing. Neither the state nor the defendant sought to be heard at the hearing but the defendant had filed a written statement with the trial court, consenting to the court’s granting of its own motion for closure.

       “6. This order is based on the following findings herein made by this court.
      “A. These orders are necessary to preserve an interest which is determined to override the public’s interest in attending such proceeding or in viewing such materials.
      “B. Said interest is determined by this court to be that of the defendant, Alex Kelly, to select, impanel and be tried by a jury in Stamford, Connecticut that is as free from influence of adverse publicity as is possible.
      “7. This court concludes that this order is no broader than necessary to protect such overriding interest.
      “8. This order is based upon Practice Book § 895.”
      Practice Book § 895 provides that, in general, a judicial authority shall not order closure but may if it concludes that such order is necessary to preserve an interest that is determined to override the public’s interest in attending court. The order shall be no broader than necessary and the judicial authority shall articulate the overriding interest being protected and shall specify its finding.

         Practice Book § 895 (c) provides in relevant part, 1hat the “judicial authority shall, on the record in open court, articulate the overriding interest being protected and shall specify its findings underlying such order. . .

       The trial court entered certain documents, on its own initiative, into evidence at its hearing on its closure motion. Although the court indicated that the parties would be able to submit documents as exhibits, according to the trial court transcript, no other documents were entered as exhibits and no testimony was taken. It is unclear whether the trial court hearing of March 19, 1997, was evidentiary in nature as no evidence of the parties was actually offered or received.
      An evidentiary hearing is not required if a trial court is satisfied from affidavits, the colloquy with counsel or the testimony of witnesses that Hiere is a factual justification for the exclusion of the public from the courtroom. State v. Kelly, 208 Conn. 365, 373, 545 A.2d 1048 (1988). Ordinarily, however, specific findings are made after an evidentiary hearing. See State v. Manfredi, 4 Conn. App. 247, 493 A.2d 242 (1985).