text:
    ANTHONY GOODEN v. COMMISSIONER OF CORRECTION
    (AC 31306)
    Bishop, Gruendel and Robinson, Js.

      Argued January 19
    officially released April 5, 2011

      Charles F. Willson, special public defender, for the appellant (petitioner).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Nicholas Bove, Sr., senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Anthony Gooden, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, he claims that the court abused its discretion in denying his petition for certification to appeal and that the court improperly rejected his claim that his trial counsel had provided ineffective assistance. More specifically, the petitioner claims that trial counsel failed (1) to have a third party present during an interview of a witness who allegedly stated that he would provide exculpatory testimony at the petitioner’s criminal trial and (2) to lay a foundation to impeach that witness when his testimony at trial was inconsistent with the prior statement made to counsel during the interview. We dismiss the appeal.

The facts underlying the petitioner’s conviction were set out at length in State v. Gooden, 89 Conn. App. 307, 309-10, 873 A.2d 243, cert, denied, 275 Conn. 918, 919, 883 A.2d 1249 (2005). “On September 15,1999, during an undercover police operation, a confidential informant, Michael Young, arranged to meet the [petitioner] at a Bridgeport restaurant. Young was accompanied by an undercover police officer, James Lofton. Five additional officers were located inside and outside of the restaurant in order to observe the [petitioner’s] interactions with Young and Lofton. The [petitioner], wearing a white Tommy Hilfiger jacket, arrived at the restaurant in a gray Ford Taurus and parked alongside Young’s vehicle. Young introduced Lofton as a friend, and the [petitioner] asked Lofton how many he wanted. Lofton said that he wanted two and gave the [petitioner] two previously photocopied $20 bills. The [petitioner] gave Young two plastic bags containing cocaine, which Young passed to Lofton. The [petitioner], after exiting his vehicle to use a pay telephone, returned and drove away. A few of the officers followed the [petitioner] to 300 French Street in Bridgeport after witnessing the transaction. The officers determined that the vehicle driven by the [petitioner] was registered at that address in the name of Barbara Manning.

“Two days later, Young and Lofton again arranged to meet the [petitioner], this time in Stratford. The [petitioner] drove up in a white Pontiac Grand Am and asked Young and Lofton how many they wanted. Lofton said he wanted two and handed previously photocopied money to Young, who then handed it to the [petitioner]. The [petitioner] gave Young two plastic bags containing cocaine. Four of the officers who had witnessed the previous Bridgeport sale also witnessed the Stratford incident.

“On September 23, 1999, members of the Stratford and state police simultaneously executed two search warr ants, one at 11 Justice Street, the home of Kanzada Bishop, the [petitioner’s] girlfriend at the time, and one at Manning’s 300 French Street address. Upon executing the Justice Street warrant, the police forced entry into the home and found the [petitioner] in a bedroom. The [petitioner] had $614 in his pocket and the keys to the white Grand Am, which was parked in the driveway. Cocaine was found in the overhead compartment of the automobile. Upon executing the warrant at the French Street location, the officers found a suitcase and a storage bin inside of a closet. A Tommy Hilfiger jacket, which matched the description of the jacket worn by the [petitioner] during the first drug transaction, was found in the storage bin in the closet. In its pocket, the officers found a large amount of cocaine. Cocaine was also found packaged in tinfoil on the bathroom floor.

“One of the keys from the [petitioner’s] key ring, which was seized at the Justice Street location, opened the suitcase from the French Street location. The police found jewelry, papers and approximately $9900 inside of the suitcase. The previously photocopied $20 bills were among the cash found in the suitcase.” Id.

The record reveals the following additional undisputed facts and procedural history. In 2002, following his criminal trial, the petitioner was convicted of one count of possession of narcotics in violation of General Statutes § 21a-279 (a), one count of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and two counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). Upon conviction, the trial court sentenced the petitioner to a term of imprisonment of nineteen years. Thereafter, the petitioner filed a direct appeal from the judgment of conviction, and this court reversed the judgment as to the possession charges only. The judgment was affirmed in all other respects. State v. Gooden, supra, 89 Conn. App. 308-309.

In his amended habeas petition, filed on September 24, 2008, the petitioner alleged that he received ineffective assistance from his trial counsel, Timothy Aspin-wall. On May 21, 2009, the court held a trial on the petition, at which the petitioner and Aspinwall testified. During the trial, Aspinwall testified that, prior to the petitioner’s criminal trial, he had conducted an interview of Young. Aspinwall and Young were the only individuals present during the interview. According to Aspinwall, during that interview, Young stated that he would testify that the petitioner was not involved in the drug transactions for which the petitioner was charged. On the basis of Young’s statement, and in view of the strength of the state’s case against the petitioner, Aspinwall decided to call Young as a witness. When called to the stand, however, Young testified that the petitioner was involved in the drug transactions. Aspin-wall, apparently surprised by the testimony, did not confront Young regarding his prior statement exculpating the petitioner. Following the conclusion of the evidence, Aspinwall filed a motion for a mistrial, to withdraw as counsel and to become a witness to impeach Young’s credibility. Subsequently, the trial court denied the motions primarily on the ground that Aspinwall had failed to lay a foundation in order to impeach Young’s credibility.

The habeas court denied the petition for a writ of habeas corpus. The court concluded that, regardless of whether Aspinwall performed deficiently, the petitioner had failed to meet his burden of proof for a claim of ineffective assistance because the petitioner had not shown that he was prejudiced by Aspinwall’s performance. Subsequently, the court denied the petition for certification to appeal. This appeal followed.

On appeal, the petitioner claims that Aspinwall’s performance was deficient and caused him prejudice. Specifically, the petitioner claims that Aspinwail failed (1) to have a third party present during the interview of Young and (2) to lay a foundation to impeach Young when his testimony at trial was inconsistent with the prior statement made to Aspinwail during the interview. The petitioner argues that, but for these deficiencies, he would have been able to impeach Young’s credibility with the prior inconsistent statement.

The standard of review and legal principles that govern the resolution of the petitioner’s appeal are well settled. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . . The required determination may be made on the basis of the record before the habeas court and applicable legal principles. . . . If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.

“In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.” (Emphasis in original; internal quotation marks omitted.) Santiago v. Commissioner of Correction, 125 Conn. App. 641, 646-47, 9 A.3d 402 (2010).

“A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. . . . Put another way, the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . With respect to the prejudice component, [i]t is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. . . . A court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.” (Citations omitted; internal quotation marks omitted.) Atkinson v. Commissioner of Correction, 125 Conn. App. 632, 638-39, 9 A.3d 407 (2010).

On the basis of our review of the record, we conclude that the petitioner has failed to demonstrate that there is a reasonable probability that if Aspinwall had impeached Young on the basis of his prior inconsistent statement, the jury would have had a reasonable doubt respecting the petitioner’s guilt. Even if we were to assume, arguendo, that Aspinwall’s failure to impeach Young on the basis of his inconsistent statement constituted deficient performance, we agree with the habeas court’s assessment that no prejudice resulted from that deficiency, particularly in light of the fact that Young’s testimony was cumulative of many of the state’s witnesses. Therefore, as the petitioner has failed to sustain his burden of showing prejudice, he also has failed to show that the resolution of the underlying claim involves issues that are debatable among jurists of reason, that a court could resolve the issues differently or that the questions are adequate to deseive encouragement to proceed further. Accordingly, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       Young did not testily in the prosecution’s case-in-chief.

       The record reveals that the jury heard from five police officers who testified that, on two separate occasions, they observed Young handing money to the petitioner in exchange for cocaine.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    MARGUERITE A. KOMONDY v. ZONING BOARD OF APPEALS OF THE TOWN OF CHESTER
    (AC 31944)
    Gruendel, Alvord and Dupont, Js.

      Argued January 5
    officially released April 5, 2011

      Christina P. Burnham, for the appellant (plaintiff).

      John S. Bennet, for the appellee (defendant).
   Opinion

GRUENDEL, J.

In this certified zoning appeal, the plaintiff, Marguerite Komondy, appeals from the judgment of the Superior Court dismissing her appeal from the decision of the defendant, the zoning board of appeals (board) of the town of Chester (town), which denied her appeal from two decisions of the zoning enforcement officer and her application for a variance from § 113B.5 of the town zoning regulations (regulations). She contends that the board acted illegally in permitting an unseated alternate member to participate in both the public hearing and the board’s deliberations thereon. We affirm the judgment of the Superior Court.

This appeal concerns the use of a mobile home on 29 Liberty Street in Chester (property), which is located in an R-l residential district of the town and at all relevant times was owned by the plaintiff. Section 113B.5 of the regulations permits the temporary use of a mobile home on a property during the construction of a permanent dwelling. That regulation requires notification of such use to the zoning enforcement officer and expressly limits the use to a period of six months.

The property contained a 6531 square foot historic single-family residence, which a fire destroyed in March of 2005. Days later, the plaintiff, pursuant to § 113B.5, applied for a six month use permit to install a temporary mobile home on the property during the reconstruction of her home, which was granted on March 14, 2005. Approximately one year and four months later, Zoning Enforcement Officer Judith R. Brown issued a cease and desist order regarding the use of the mobile home on the property. In response, the plaintiff requested an extension of the permit originally issued in March, 2005, which Brown denied on August 25, 2006.

On August 28, 2006, the plaintiff filed an appeal with the board from both the cease and desist order and the denial of her request for an extension. In addition, the plaintiff applied for a variance from the “[six] months time limit” contained in § 113B.5. The board held a public hearing on the plaintiffs applications on December 18, 2006. In attendance at that hearing were regular board members Mario Gioco, Jim Miller, Tom Englert and Mark Borton, and three alternate board members, Dan Bednarz, Theresa Myers and Andy Vomastek. Because only four regular members were present, Bednarz was seated pursuant to General Statutes § 8-5a. After the public hearing concluded, the board deliberated the merits of the plaintiffs applications. The board then voted to deny both the appeal from the decisions of the zoning enforcement officer and the application for a variance from § 113B.5. From that decision, the plaintiff appealed to the Superior Court, which rendered judgment dismissing her appeal. In so doing, the court rejected the plaintiffs claim that the board acted illegally in allowing Myers, an unseated alternate, to participate in the public hearing and the board’s deliberations. In addition, the court concluded that the board properly denied the variance application because the requisite hardship was lacking.

On appeal to this court, the plaintiff challenges only the court’s determination regarding Myers’ participation in the public hearing and the board’s deliberations. She does not challenge its determination that no unusual hardship existed to warrant a variance of the zoning regulations. Accordingly, we focus our attention on the propriety of Myers’ involvement in the December 18, 2006 proceedings.

The record before us contains a transcript of the December 18, 2006 proceedings on the plaintiffs applications. It substantiates the court’s finding that Myers was an alternate who, despite not being seated to act on the plaintiffs applications pursuant to § 8-5a, participated in both the public hearing and the subsequent deliberations of the board. During the public hearing, Myers asked more than a dozen questions, the majority of which were directed at the plaintiffs husband, Christopher Komondy, who offered testimony in support of the plaintiffs applications. Her participation in the board’s subsequent deliberations on the plaintiffs variance application was even more extensive. The transcript of the deliberations thereon contains more than twenty separate statements by Myers. Myers posed various questions to the town’s attorney and articulated her opinion on various aspects of the variance at issue during those deliberations. For example, Myers expressed her view that “we have a larger obligation to the greater good if you want to call it that. And if we decide to write and grant a variance where we put limitations in, first of all, without knowing what enforcement is, what is the good of having a limitation or making a law or saying this is what’s going to happen if we don’t know (a) if we can enforce it and (b) how we’re going to enforce it. And who’s going to be responsible for . . . checking all this out and monitoring this, and, you know, we’ve already had months of delays and people in the town waiting on this decision as well as the applicant. You know, this could drag out to have a life of its own and by the time we’re even getting to the point of figuring out how to handle it, the building could be gone or could be up, could be not, God knows what could happen in any part of this process in two to three years . . . .”

On the issue of hardship, Myers questioned whether this is “a financial hardship or a hardship with [the] land.” When Gioco and Miller discussed potential conditions related to the timing of the reconstruction on the property, Myers opined that “it was a chronological argument, very well said, and, I mean, you could argue either way, but that is not necessarily a solid grounding for a hardship.” She concluded that statement by noting that “[y]ou can’t talk yourself into a hardship, either it is a hardship or it isn’t.” Similarly, when another board member raised the possibility of attaching a condition to the variance that would limit the use of a mobile home on the property “by time,” Myers stated that “then it’s two months back, three months later, where do you just cut it off and stop the bleeding, I mean, when are you, obviously, we are all sympathetic, but you know what I mean. You let them go for two years and then they guarantee that they got three more months and then you’re going to say, well, soriy, and then in three more months it’s like, you know, the world fell apart, and it’s going to take three or four more months. That’s the problem with this ... as much as we want to do this, that’s the problem with this, how, where does it end; it ends when they’re done, not when we decide to grant a variance.” Near the end of the board’s deliberations, Gioco, the board’s chairman, opined that “really this . . . should have been handled by [the] planning and zoning [commission] because it is not clear .... Maybe we should give them the chance to fix it as opposed to us.” In response, Myers stated that “if we really have gone through this whole process and decided that we shouldn’t be hearing this and then we shouldn’t have accepted the application. . . . We have heard it, it is on the books ... I think we have to make a decision. I mean, if the applicants or if we want to talk to [the planning and zoning commission] about modifying [§ 113B.5] . . . but I don’t think we can postpone our decision based on that . . . .” (Emphasis added.) Plainly, Myers was an active participant in the board’s deliberations on the variance application.

I

The plaintiff claims that Myers’ participation in the proceedings ran afoul of General Statutes § 8-5 (a), rendering the board’s action on her applications illegal. She argues that the plain language of that statute forbids an alternate member from participating in either the public hearing or board deliberations on an application unless that alternate has been seated pursuant to § 8-5a. Her claim presents a question of statutory construction, over which our review is plenary. See Buttermilk Farms, LLC v. Planning & Zoning Commission, 292 Conn. 317, 328, 973 A.2d 64 (2009).

“The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Id. In addition, “common sense must be used in statutory interpretation, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 141, 680 A.2d 1329 (1996).

We thus begin with the language of the statute. Section 8-5 (a) provides in relevant part: “In each municipality having a zoning commission there shall be a zoning board of appeals consisting of five regular members and three alternate members, unless otherwise provided by special act. Such alternate members, also referred to as ‘the panel of alternates’, shall, when seated as herein provided, have all the powers and duties set forth in the general statutes relating to zoning boards of appeals and their members. . . .” General Statutes § 8-6 (a) enumerates the “powers and duties” of a zoning board of appeals as follows: “(1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter; (2) to hear and decide all matters including special exceptions and special exemptions under section 8-2g upon which it is required to pass by the specific terms of the zoning bylaw, ordinance or regulation; and (3) to determine and vary the application of the zoning bylaws, ordinances or regulations . . . .”

A

The first question we must ask in considering the aforementioned statutory language is whether it precludes the participation of an unseated alternate in the public hearing portion of a board’s proceedings. We conclude that it does not. While quite specific in other regards; see, e.g., General Statutes § 8-7 (requiring board to “state upon its records the reason for its decision”); General Statutes § 8-7a (requiring evidence to be taken by stenographer or recording device); General Statutes § 8-7d (a) (requiring that “[a]ll applications and maps and documents relating thereto shall be open for public inspection” and permitting any person to “appear and be heard” at public hearing); our General Statutes do not prescribe any protocols or duties regarding the participation of board members in the public hearing. See generally R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 20:1, p. 556 (“[t]he general procedures followed by most land use agencies are similar, and acceptable procedures have evolved by custom and experience rather than from statutory requirements”).

This legislative silence on the issue of participation by board members in the public hearing is understandable. Whether it is an appeal from a decision of the zoning enforcement officer, a variance application or another matter specified by statute, the burden rests with the applicant to demonstrate its entitlement to the requested relief. See, e.g., Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn. App. 622, 630, 814 A.2d 396 (“the board properly exercised its discretion in upholding the decision of the zoning enforcement officer [because] the plaintiff had not satisfied its burden of establishing the validity of the proposed gasoline station use as a preexisting, nonconforming use”), cert, denied, 263 Conn. 901, 819 A.2d 836 (2003); Pike v. Zoning Board of Appeals, 31 Conn. App. 270, 274, 624 A.2d 909 (1993) (applicant bears burden of demonstrating existence of hardship). It thus is incumbent on an applicant to provide an evidentiary basis, whether through testimony, documentation or a combination thereof, in support of its plea for relief. Under Connecticut law, active participation by board members in a public hearing is not statutorily required. Rather, it is entirely permissible, if nevertheless uncommon, for a board to passively observe the applicant’s presentation without asking questions or otherwise making inquiry as to the specifics of the application. We are aware of no authority to the contrary, nor has the plaintiff provided any.

The plaintiff argues that the word “hear,” as that term is used in the phrase to “hear and decide” contained in § 8-6 (a) (1) and (2), connotes active participation in public hearings. We disagree. Rather, we read that term as one indicating that the zoning board of appeals is the proper forum for certain appeals and matters as specified therein. Put differently, the term expresses the board’s power to entertain such matters.

Such expression is necessary because zoning boards of appeal are creatures of statute, as every Connecticut municipality having a zoning commission is required to have a zoning board of appeals. General Statutes § 8-5 (a). They possess a limited authority, as circumscribed by statute, the scope of which cannot be enlarged or limited by either the board or the local zoning regulations. See Langer v. Planning & Zoning Commission, 163 Conn. 453, 458, 313 A.2d 44 (1972) (board’s powers “stem directly from the statute” and “are not subject to restriction by provisions contained in the ordinance or amendments thereto”); Bora v. Zoning Board of Appeals, 161 Conn. 297, 302, 288 A.2d 89 (1971) (holding that board acted illegally by exceeding its power in granting variance); 2 P. Saikin, American Law of Zoning (5th Ed. 2010) § 13:27, p. 13-82 (zoning boards of appeal “are constrained by the limitations of the power granted to them by law”). As often is noted, “[s]ubject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. . . . The same principle applies to administrative agencies . . . including zoning authorities.” (Citations omitted; emphasis added; internal quotation marks omitted.) Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991); see also Konover v. West Hartford, 242 Conn. 727, 740-41, 699 A.2d 158 (1997) (no jurisdiction to act unless under precise circumstances and in manner particularly prescribed by enabling legislation); cf. Mitchell Land Co. v. Planning & Zoning Board of Appeals, 140 Conn. 527, 531, 102 A.2d 316 (1953) (explaining that “[p]rior to 1947, the statutes did not specifically refer to . . . special exceptions [which] the General Assembly [recently] empowered zoning boards of appeal ‘to hear and decide’ ”). By delineating precisely what matters properly may be acted upon by a zoning board of appeals, § 8-6 (a) sets forth the confines within which zoning boards of appeal operate.

In addition, we note that § 8-6 (a) (3) does not contain the particular language relied on by the plaintiff. If the plaintiff is correct in her contention that the term “hear,” as it is used in the phrase to “hear and decide,” constitutes active participation in public hearings, then its omission from § 8-6 (a) (3) suggests that the legislature, in enacting this statute, sought to vest in board members the power to actively participate in public hearings on the matters set forth in § 8-6 (a) (1) and (2) but not in hearings where a variance is sought. The legislature could not have intended such a bizarre result. See S.I.S. Enterprises, Inc. v. Zoning Board of Appeals, 33 Conn. App. 281, 286, 635 A.2d 835 (1993) (principles of statutory construction require court to construe statutes in manner that will not lead to absurd results). That § 8-6 (a) concludes by providing that the board shall not be required “to hear any application for the same variance . . . for a period of six months after a decision by the board or by a court on an earlier such application” further indicates that the term “hear” refers to the board’s power to entertain certain matters.

Common sense also persuades us that the legislature did not intend to preclude the participation of unseated alternate members in public hearings. The convening of a public hearing affords an opportunity for the applicant to demonstrate its entitlement to the requested relief and for other members of the community “to register their approval or disapproval and to state the reasons therefor.” Couch v. Zoning Commission, 141 Conn. 349, 357, 106 A.2d 173 (1954); see also Clifford v. Planning & Zoning Commission, 280 Conn. 434, 443, 908 A.2d 1049 (2006) (purpose of local zoning body in holding public hearing is to afford opportunity to interested parties to make views known and to enable board to be guided thereby). Thus, the aim of the public hearing is to obtain any and all information relevant to the inquiry on hand, so as to facilitate the rendering of an informed decision by the board. See Loh v. Town Plan & Zoning Commission, 161 Conn. 32, 42, 282 A.2d 894 (1971) (board members must be sufficiently acquainted with issues raised and arguments presented at public hearing “in order to exercise an informed judgment”); Strain v. Mims, 123 Conn. 275, 282, 193 A. 754 (1937) (“[t]he purpose of the public hearing is, of course, to inform the members of the commission as to the reasons why the change should or should not be made”); T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 405 (“the purpose of the hearing is to provide the board with information to improve the quality of its decision”). In light of that central aim, we perceive no good reason why unseated alternate members should be relegated to bystander status during public hearings. Indeed, we cannot envision any prejudice to an applicant resulting from their participation, particularly in light of the mandatory disqualification of any board member from “any matter in which he is directly or indirectly interested in a personal or financial sense.” General Statutes § 8-11.

We also are mindful of the fact that an alternate member who is not seated for a public hearing may well be called on to act in the place of a regular member in the board’s subsequent deliberations. It seems incongruous to vest in such an alternate the statutory power to decide the substantive matter before the board yet preclude that alternate from asking pertinent questions or otherwise commenting during the public hearing. Permitting that alternate to explore the merits of the application through participation in the public hearing contributes to the ultimate aim of an informed decision and assures that the applicant and other interested members of the community have the opportunity to address whatever concerns the alternate has regarding the application.

As a final matter, we note that a degree of deference generally is accorded to local land use agencies. See, e.g., Fedorich v. Zoning Board of Appeals, 178 Conn. 610, 614, 424 A.2d 289 (1979) (“because the local authority is closer to the circumstances and conditions which create the problem and shape its solution, zoning authorities are given wide discretion in determining public need and the means of meeting it”); Couch v. Zoning Commission, supra, 141 Conn. 359 (“[t]he history of zoning legislation indicates a clear intent on the part of the General Assembly that, subject to certain underlying principles, the solution of zoning questions is for the local agencies”); Megin v. Zoning Board of Appeals, 106 Conn. App. 602, 607, 942 A.2d 511 (courts generally employ deferential standard of review to actions of zoning board), cert, denied, 289 Conn. 901, 957 A. 2d 871 (2008). It is plausible, if not probable, that the legislature’s silence on the issue of board member participation in public hearings simply reflects a willingness to let local agencies fashion their own protocols or duties related thereto.

In sum, a review of our General Statutes reveals that they do not address the issue of board member participation in the public hearing. Mindful that we must avoid a construction that fails to attain a rational and sensible result; see S.I.S. Enterprises, Inc. v. Zoning Board of Appeals, supra, 33 Conn. App. 286; we reject the plaintiffs interpretation of § 8-5 (a). Because participation in the public hearing is neither a power nor duty set forth in the General Statutes relating to zoning boards of appeal and their members, we cannot accept the plaintiffs contention that Myers’ participation in the December 18,2006 public hearing contravened the plain language of § 8-5 (a).

B

We next turn our attention to whether the statutory language at issue precludes the participation of an unseated alternate in the board’s deliberations. We answer that query in the affirmative.

Section 8-6 (a) vests the board with the power to “decide” certain matters and to “determine and vary the application of the zoning bylaws, ordinances or regulations . . . .” The board accomplishes those tasks by engaging in deliberations following the close of the public hearing. See, e.g., Hescock v. Zoning Board of Appeals, 112 Conn. App. 239, 246-47, 962 A.2d 177 (2009) (reviewing portions of transcript of both “the public hearing” and “the board’s decision-making process”).

One judge who considered the question before us analogized the unseated alternate board member to an alternate juror. See Weiner v. Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV-94-0066607 (May 23,1995) (Pickett, J.) (14 Conn. L. Rptr. 245). The comparison is apt. To deliberate is to “weigh, ponder, discuss, regard upon, consider . . . to weigh in the mind; to consider the reasons for and against.” (Internal quotation marks omitted.) State v. Washington, 182 Conn. 419, 428, 438 A.2d 1144 (1980). Just as deliberation is “the process by which a jury reaches a verdict, as by analyzing, discussing, and weighing the evidence”; Black’s Law Dictionary (9th Ed. 2009) p. 492; the act of deliberating is the process by which the board reaches its decision.

For good reason, the General Assembly has seen fit to require alternate jurors in civil and criminal cases alike to “be segregated from the regular panel . . . when the case is given to the regular panel for deliberation . . . .” General Statutes §§ 51-243 (e) and 54-82h (c). “[T]he primary if not exclusive purpose of jury privacy and secrecy is to protect the jury’s deliberations from improper influence.” United States v. Olano, 507 U.S. 725, 737-38, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); see also Turk v. Silberstein, 48 Conn. App. 223, 224 n.1, 709 A.2d 578 (1998) (“[t]he risks involved in allowing an alternate to sit in during deliberations are obvious”). Participation by an unseated alternate tarnishes the jury’s deliberations. See State v. Murray, 254 Conn. 472, 495, 757 A.2d 578 (2000) (en banc) (juiy deliberations tarnished when jurors come into contact with outside influences). Similarly, the participation of an unseated alternate tarnishes the deliberations of a zoning board of appeals, as it permits one not authorized to vote on the matter before the board to nevertheless pass on the merits thereof. See Clifford Development Corp. v. Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV-95-0068705 (May 17, 1996) (“[a]n alternate member of the agency who is not needed for the vote should not participate in the deliberations”); 9 R. Fuller, supra, § 21:4, p. 606 (same). The unseated alternate’s participation, whether by design or inadvertence, injects an improper influence into the board’s decision-making process.

That the board’s decision-making process includes its deliberations is evidenced by the linguistic distinction contained in the plain language of §§ 8-5 (a) and 8-6 (a). Section 8-5 (a) provides in relevant part that “[t]he board shall keep minutes of its proceedings showing the vote of each member and each alternate member when seated upon each question . . . .” (Emphasis added.) By contrast, § 8-6 (a), in enumerating the powers and duties of the zoning board of appeals, states that it is authorized to “decide” and to “determine” the specified matters. It is well established that, in construing statutory language, “[n]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . and no word in a statute is to be treated as superfluous.” (Internal quotation marks omitted.) State v. Anderson, 227 Conn. 518, 528, 631 A.2d 1149 (1993); see also Vibert v. Board of Education, 260 Conn. 167, 176, 793 A.2d 1076 (2002) (every word in statute presumed to have meaning). Our interpretation thus must give meaning to that distinction. Had the legislature intended to permit the participation of unseated alternates in the board’s deliberations on an application but to preclude their involvement in the vote thereon, it simply could have used the term “vote” in § 8-6 (a), as it did in § 8-5 (a). That the legislature instead utilized “decide” and “determine” to describe the powers and duties of the board indicates that the board’s power in this regard includes something other than simply voting on a particular matter. Our objective in construing statutory language is to give effect to the apparent intent of the legislature. Buttermilk Farms, LLC v. Planning & Zoning Commission, supra, 292 Conn. 328. We conclude that the apparent intent of the legislature was to include the deliberations of a zoning board of appeals among the powers and duties set forth in § 8-6 (a).

Because under § 8-5 (a) only alternate members seated pursuant to § 8-5a possess the powers and duties set forth in § 8-6 (a), § 8-5 (a) precludes the participation of an unseated alternate in board deliberations following the close of the public hearing. We therefore agree with the plaintiff that Myers improperly participated in the deliberations on the variance application.

II

That conclusion does not end our inquiry. We also must determine whether that impropriety mandates a reversal of the judgment of the Superior Court dismissing the plaintiffs appeal.

A

At the outset, we note that the court employed, in essence, a harmlessness test in evaluating Myers’ conduct. It determined that although Myers “was an alternate that was not seated,” her participation in the board’s deliberations did not have a profound effect on the voting members. Three other Superior Court judges have employed a similar test. See Optiwind, v. Planning & Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV-08-4007819-S (September 15, 2010) (Roche, J.) (limited participation of unseated alternate “did not have a profound effect on the deliberations”); Winston v. Zoning Board of Appeals, Superior Court, judicial district of Litchfield, Docket No. CV-04-0092297-S (Januaiy 6, 2005) (Boz-zuto, J.) (“[t]he record is devoid of any evidence that the alternate . . . had any sort of ‘profound’ [ejffect upon the voting members”); Weiner v. Zoning Commission, supra, 14 Conn. L. Rptr. 246 (concluding that unseated alternate “had a profound effect upon the deliberation”).

The “profound effect” test adopted in those cases is akin to the standard utilized in Murach v. Planning & Zoning Commission, 196 Conn. 192, 491 A.2d 1058 (1985), in which a salaried member of the local fire department who statutorily was proscribed from membership on the local planning and zoning commission participated in the approval of a zone reclassification. Id., 200. In considering “the legal effect” of his participation; id.; our Supreme Court explained that “we have not always adhered to a per se rule of invalidation when a member of a board or commission had a conflict of interest that should have counseled disqualification in a matter upon which the member should not have participated.” Id., 202. Instead, the court indicated that the burden rested with the appellant property owner “to show that [the improper member’s] disqualification tainted the entire proceeding . . . .’’Id., 204; see also Grimes v. Conservation Commission, 243 Conn. 266, 278, 703 A.2d 101 (1997) (“the burden is on the plaintiff to show that the commission acted improperly”). The court continued: “[N]ot all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown.” (Emphasis added; internal quotation marks omitted.) Murach v. Planning & Zoning Commission, supra, 205; accord Anziano v. Board of Police Commissioners, 229 Conn. 703, 713, 643 A.2d 865 (1994) (“a demonstration of procedural irregularities would not require us to set aside the board’s decision in the absence of a showing of material prejudice”); Owens v. New Britain General Hospital, 32 Conn. App. 56, 69 n.5, 627 A.2d 1373 (1993) (“[a]n administrative proceeding is not ‘tainted’ by procedural irregularities unless substantial rights of the parties have been prejudiced”), affd, 229 Conn. 592, 643 A.2d 233 (1994). Because the disqualified member’s “role in this matter was minimal” and “he made no attempt to influence or sway the other members of the commission”; (internal quotation marks omitted) Murach v. Planning & Zoning Commission, supra, 204; the court concluded that the appellants failed to demonstrate any resulting prejudice. Id., 206.

A similar standard is employed in the context of juror misconduct. In evaluating the intrusion of an alternate into a jury’s deliberations, our Supreme Court has noted that “prejudice will ... be presumed [where] an alternate juror actually participated in jury deliberations.” State v. West, 274 Conn. 605, 651, 877 A.2d 787, cert, denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005), citing United States v. Olano, supra, 507 U.S. 739-41. At the same time, that presumption may be rebutted by evidence that no harm resulted from the participation of the alternate. State v. West, supra, 650-51.

In our view, the proper measure to evaluate the participation of an unseated alternate in a board’s deliberations is an inquiry into whether the participation resulted in material prejudice to the applicant. See Murach v. Planning & Zoning Commission, supra, 196 Conn. 205. Among the factors relevant to that inquiry is a determination of whether the participation impacted the board’s decision-making process. See Weiner v. Zoning Commission, supra, 14 Conn. L. Rptr. 246 (concluding that unseated alternate “had a profound effect upon the deliberation”). Also relevant is the frequency and severity of the unseated alternate’s participation. Cf. State v. Stevenson, 269 Conn. 563, 573, 849 A.2d 626 (2004) (evaluation of claims of prosecutorial impropriety includes inquiry as to frequency and severity of misconduct); State v. Joyner, 225 Conn. 450, 473, 625 A.2d 791 (1993) (prosecutor’s single questionable statement will not, in all probability, impair effectiveness or integrity of defendant’s trial); State v. Orellana, 89 Conn. App. 71, 105, 872 A.2d 506 (isolated misstatement not prosecutorial impropriety), cert, denied, 274 Conn. 910, 876 A.2d 1202 (2005). Though not dispositive, a finding that the alternate’s participation was minimal militates against a finding of material prejudice. Murach v. Planning & Zoning Commission, supra, 204; see also Optiwind v. Planning & Zoning Commission, supra, Superior Court, Docket No. CV-08-4007819-S (unseated alternate’s “limited participation” consisted of “two short statements”); Winston v. Zoning Board of Appeals, supra, Superior Court, Docket No. CV-04-0092297-S (unseated alternate made only one comment during deliberations that was consistent with sentiments of other members). In addition, apart from the persuasiveness of the unseated alternate’s participation is the question of whether that alternate attempted “to influence or sway the other members” of the board. (Internal quotation marks omitted.) Murach v. Planning & Zoning Commission, supra, 204. The aforementioned factors are not exclusive, but rather are cornerstones of an inquiry into whether an unseated alternate’s participation in the board’s deliberations resulted in material prejudice.

B

Having clarified that standard, the present case nevertheless does not require its application. The record indicates that Myers participated only in the deliberations on the plaintiffs variance request. Although that participation was improper, it remains that the court determined that no unusual hardship existed to warrant a variance from § 113B.5 of the regulations. “Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance.” Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207-208, 658 A.2d 559 (1995); see also Ward v. Zoning Board of Appeals, 153 Conn. 141, 143, 215 A.2d 104 (1965) (“[t]he hardship requirement is a fundamental one in zoning law”). The plaintiff has not challenged the court’s determination that the requisite hardship was lacking. “This court does not presume error on the part of the trial court; error must be demonstrated by an appellant . . . .” State v. Tocco, 120 Conn. App. 768, 781 n.5, 993 A.2d 989, cert, denied, 297 Conn. 917, 996 A.2d 279 (2010). Thus, irrespective of the impropriety of Myers’ participation in the board’s deliberations, we must conclude that the court properly dismissed the plaintiffs appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       Titled “Temporary Use During Construction of Home,” § 113B.5 provides: “When used, after notification to the Zoning Compliance Officer, as a temporary dwelling on premises of the owner thereof during construction of such owner’s permanent dwelling upon the same premises, provided that such mobile home shall not remain upon said premises for more than six months from the time that it is first placed thereon; and provided such mobile home shall be connected to a water supply and sewage disposal system approved by the Town Director of Health in conformity with the requirements of the S1 ate Health Code and regulations enacted by the State Department of Health thereunder and to the requirements of any Town regulations pertaining thereto.”

       Under Connecticut law, a property owner is permitted to simultaneously file with the zoning board of appeals a variance application and an appeal from the decision of the zoning enforcement officer. As this court has observed, “[t]he plain language of [General Statutes] § 8-6a clearly allows a party to file a bifurcated claim with a zoning board relying on both [General Statutes] § 8-6 (1) and § 8-6 (3) and requesting simultaneous relief under each of these subsections. Simply put, § 8-6a permits the concurrent filing of both an appeal from a zoning enforcement officer’s ruling and a request for a variance. When a party applies for a review under both § 8-6 (1) and § 8-6 (3), § 8-6a specifically requires that a zoning board first decide the issues presented by the § 8-6 (1) application for a building permit. Should the board uphold the denial of the building permit, it must then act upon the § 8-6 (3) request for a variance of the zoning ordinance.” Miniter v. Zoning Board of Appeals, 20 Conn. App. 302, 306, 566 A.2d 997 (1989). It is undisputed that the board complied with the foregoing in the present case.

       General Statutes § 8-5a, titled “Designation of alternate members to act,” provides: “If a regular member of a zoning board of appeals is absent, he may designate an alternate from the panel of alternates to act in his place. If he fails to make such designation or if he is disqualified, the chairman of the board shall designate an alternate from such panel, choosing alternates in rotation so that they shall act as nearly equal a number of times as possible. If any alternate is not available in accordance with such rotation, such fact shall be recorded in the minutes of the meeting.”

       In its August 17, 2009 memorandum of decision, the court also found that “[t]he mobile home remains on the property today, three and one-half years later, without the construction of the new house.”

       The transcript indicates that Myers did not participate in the deliberations on the appeal from the decisions of the zoning enforcement officer.

       In addition, the transcript is punctuated by numerous statements for which the identity of the speaker is referred to as “unknown.”

         We note that General Statutes §§ 8-7, 8-7a, 8-7d and 8-11 also contain provisions pertaining to the activities of zoning boards of appeals. Those statutory provisions require, inter alia, the board to “state upon its records the reason for its decision”; General Statutes § 8-7; to ensure proper recordation of evidence submitted at public hearings; to publish notice of public hearings; to permit any person to “appear and be heard”; General Statutes § 8-7d (a); and further require the disqualification of any board member from “any matter in which he is directly or indirectly interested in a personal or financial sense.” General Statutes § 8-11. Because none of those statutes bears on the issue of board member participation in public hearings or board deliberations, we focus our inquiry on §§ 8-5 (a) and 8-6 (a), as have the parties to this appeal.

       One commentator has described the typical public hearing as follows: “The applicant must be allowed to present documentary evidence and speakers supporting the application to build a record. After the applicant’s presentation, the agency members may ask questions about the application and for input from the staff or consultants to the agency who are present. The chairman then generally asks if there are any other persons present who support the application. If so they are allowed to make or file statements in support of the proposal. . . . After that, opponents of the application are allowed to make statements and presentations against it or to ask questions of the applicant and its representatives. After the opponents conclude their remarks and the agency members ask other questions, the applicant is usually given the opportunity to rebut the opposition and make concluding remarks. The chairman then declares the hearing closed or suspends it to another date so that additional evidence can be presented.” (Emphasis added.) 9 R. Fuller, supra, § 20:3, p. 558.

       We emphasize that the analogy to alternate jurors pertains to the sanctity of the decision-making process and do not suggest that the proceedings of a zoning board of appeals otherwise are comparable to the work of a jury injudicial proceedings. Plainly, local land use proceedings are informal and transpire without regard to strict rules of evidence; see Megin v. Zoning Board of Appeals, supra, 106 Conn. App. 608; due in large measure to the fact that such proceedings are conducted by boards “comprised of citizens from all walks of life, serving their communities on a voluntary basis . . . who may not always express themselves with the nicety of a Philadelphia lawyer.” (Internal quotation marks omitted.) Anatra v. Zoning Board of Appeals, 127 Conn. App. 125, 145, 14 A.3d 386 (2011) (Gruendel, J., concurring). Similarly, our Supreme Court has explained that the procedural right involved in such administrative proceedings properly is described as a right to fundamental fairness, as distinguished from the due process rights implicated in judicial proceedings. Grimes v. Conservation Commission, 243 Conn. 266, 273 n.11, 703 A.2d 101 (1997).

       In light of our conclusion in part IB of this opinion, we emphasize that the participation of an unseated alternate in the board’s deliberations is not to be condoned. Even if that participation ultimately is deemed harmless, it nevertheless raises the specter of impropriety. For that reason, the prudent course is to prohibit such participation in all instances.


author: BEACH, J.

text:
    ALECIA EMRICH v. MICHAEL EMRICH
    (AC 31636)
    Lavine, Beach and Lavery, Js.

      Argued December 6, 2010
    officially released April 5, 2011

      Anne C. Dranginis, with whom, on the brief, was Bradford S. Booth, for the appellant (defendant).

      Aleda A. Emrich, pro se, the appellee (plaintiff).
   Opinion

BEACH, J.

The defendant, Michael Emrich, appeals from the judgment of the trial court entering certain postdissolution orders pursuant to motions filed by him and the plaintiff, Alecia Emrich. The defendant claims that the court (1) erred in modifying its custody order to permit the plaintiff to relocate to Maine with three of the parties’ five children and (2) abused its discretion with respect to various postdissolution financial orders. We affirm the judgment of the trial court.

The following facts and procedural history are relevant. The parties were married in 1986. Five children were bom of the marriage. In October, 2006, the plaintiff commenced a divorce action against the defendant. On February 26, 2008, the court, Pinkus, J., entered a judgment of dissolution, which incorporated both a separation agreement and a parenting plan that had been entered into by the parties. Pursuant to the parenting plan, the parties were awarded joint legal custody of the five children with their primary physical residence to be with the plaintiff at the marital home in Fairfield. The parenting plan also provided that for as long as the parties continue to live within twenty miles of Fairfield and any of the children was a minor, the parent having physical custody of any minor children could not relocate to a residence more than twenty driving miles from the primary residence of the other party without there first having been a determination of the issue of relocation either by written agreement between the parties or by order of a court.

On March 24, 2009, the defendant filed a postjudgment motion to open and modify the judgment based on a substantial change in circumstances. The change in circumstances was, to a large extent, the defendant’s decrease in income. The defendant sought a downward modification regarding alimony, child support and life insurance as a result of a change in employment and a resulting 75 percent reduction in salary. On March 31, 2009, the plaintiff filed a motion entitled “Motion for Modification of Visitation, Postjudgment Motion for Order Re Relocation Postjudgment.” In this motion, the plaintiff sought an order allowing her to move to the Portland, Maine metropolitan area based on a substantial change in circumstances.

Following a hearing, the court, Gould, J., on November 5, 2009, issued a memorandum of decision concerning the parties’ postjudgment motions. In its decision, the court granted the defendant’s motion to modify child support and alimony, but denied his motion for relief retroactive to April, 2009. The court granted the plaintiffs motion to modify visitation and for an order permitting relocation to the Portland, Maine metropolitan area. The court also ordered that joint legal custody of the five minor children, as ordered in the initial judgment and parenting plan shall continue. It further ordered that primary residential custody of the two oldest children, Michael and Brendan, was to be with the defendant and that primary residential custody of the three youngest children, Grant, Garrett and Dean, was to be with the plaintiff. This appeal followed.

I

The defendant first claims that the court erred in modifying its custody order to permit the plaintiff to relocate to Maine with the three younger children, while the defendant remains in Connecticut with the two older children. We disagree.

“Our standard of review of a trial court’s decision regarding custody, visitation and relocation orders is one of abuse of discretion. . . . The controlling principle in a determination respecting custody is that the court shall be guided by the best interests of the child. ... In determining what is in the best interests of the child, the court is vested with a broad discretion. . . . [T]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and . . . we are not privileged to usurp that authority or to substitute ourselves for the trial court. ... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Noonan v. Noonan, 122 Conn. App. 184, 188-89, 998 A.2d 231, cert, denied, 298 Conn. 928, 5 A.3d 490 (2010).

“[General Statutes] § 46b-56d . . . sets out the analysis a court is to apply when deciding a postjudgment motion to relocate with a couple’s minor child. Section 46b-56d adopted the shift in the burden of proof to the relocating parent set forth in Ireland v. Ireland, 246 Conn. 413, 425, 717 A.2d 676 (1998), and expanded the best interest of the child standard adopted through case law by providing specific factors that the court is to consider.” (Internal quotation marks omitted.) Id., 191-92.

Section 46b-56d provides: “(a) In any proceeding before the Superior Court arising after the entry of a judgment awarding custody of a minor child and involving the relocation of either parent with the child, where such relocation would have a significant impact on an existing parenting plan, the relocating parent shall bear the burden of proving, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of such purpose, and (3) the relocation is in the best interests of the child.

“(b) In determining whether to approve the relocation of the child under subsection (a) of this section, the court shall consider, but such consideration shall not be limited to: (1) Each parent’s reasons for seeking or opposing the relocation; (2) the quality of the relationships between the child and each parent; (3) the impact of the relocation on the quantity and the quality of the child’s future contact with the nonrelocating parent; (4) the degree to which the relocating parent’s and the child’s life may be enhanced economically, emotionally and educationally by the relocation; and (5) the feasibility of preserving the relationship between the nonrelo-cating parent and the child through suitable visitation arrangements.”

The court found, pursuant to § 46b-56d (a), that the plaintiff proved by a preponderance of the evidence that the proposed relocation of the children to Maine was for a legitimate purpose, the proposed location was reasonable in light of such purpose, and the relocation was in the best interests of the children.

A

The defendant claims that the court abused its discretion in permitting the three younger children to relocate with the plaintiff to Maine while the two older children remain in Connecticut because there was insufficient evidence presented at the hearing that such an order is in the best interests of the children. We are not persuaded.

1

The defendant argues that when a court is considering whether to grant a motion for relocation that separates siblings, certain circumstances must exist for a sibling separation to be in the children’s best interests. Citing several trial court cases, the defendant contends that sibling separation can be in the best interests of each sibling when each sibling has the ability to have consistent and meaningful contact with both parents and with each other. Citing case law from other states, the defendant also argues that sibling separation can be permitted where compelling circumstances exist. The defendant argues that in the present case, sibling separation is not in the children’s best interests because the siblings are separated by a minimum of an eight hour round trip, thereby denying them consistent and meaningful contact with both parents and no compelling circumstances otherwise exist to necessitate the separation.

The court specifically stated that it had “carefully considered” the criteria contained in § 46b-56d. The court noted that the defendant’s diminished income contributed to the need of the plaintiff to move to Maine, where she could continue her education and where she could rely on her parents for assistance. She could live considerably more frugally in Maine than in Fairfield County. The special needs of one of their children could be met in Maine. Additionally, the children had vacationed in Maine and were comfortable there. Although § 46b-56d does not explicitly require the court to consider the issue of sibling separation in the relocation context, the court clearly considered the issue in the circumstances of this case and, given the alternatives, concluded that separation was in the best interests of the children. We decline the invitation to read an additional criterion into the statute.

2

The defendant also argues that the court erred in relying on the testimony of Mark Henderson, the children’s guardian ad litem. The defendant states that Henderson testified that he did not speak to the children or the parents regarding sibling separation. He argues that Henderson’s testimony is more like a “hunch” than reasoned analysis and, as such, cannot provide sufficient foundation for the court’s conclusion that sibling separation would be in the best interests of the children. The defendant also contends that the fact that Henderson’s testimony supporting separation was contrary to the testimony of Leah Martin Fucci, the family relations counselor, and Eric Frazer, a psychologist who testified as an expert witness for the defendant, further demonstrates that it is not in the children’s best interests to be separated. We are not persuaded.

Although Henderson testified that he did not speak to the children or parents regarding sibling separation, he testified that he spoke with the children and parents extensively regarding relocation. Henderson testified that the proposed relocation would be in the best interests of the three youngest children, but that the two oldest children should remain with their father and continue to attend the same high school because they are relatively close to graduating. Henderson further testified that there was a “distinction” in the family between the three youngest boys, whom Henderson described as one unit that tended to do activities together, and the two oldest, whom Henderson describes as another unit that tended not to go along with their younger brothers. The court was free to consider Henderson’s testimony more persuasive than that of Fucci or Frazer. “[I]t is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 17, 901 A.2d 649 (2006). Accordingly, the court did not err in crediting and relying to a degree on Henderson’s testimony regarding relocation.

3

The defendant next claims that the court abused its discretion in failing to consider any testimony from the children regarding separation. We do not agree.

In support of his argument, the defendant highlights the following evidentiary ruling. During the defendant’s direct examination of Frazer, the defendant sought to introduce into evidence letters that the two oldest siblings had written to him regarding the issue of sibling separation. The court declined to admit the letters into evidence, first on the basis that the letters were hearsay and second on the basis that the court had heard testimony from Henderson and Fucci regarding the issue and there was no necessity for additional testimony.

The defendant did not object to this evidentiary ruling. To the extent that the defendant seeks review of this unpreserved evidentiary ruling on appeal, we decline to review it. See, e.g., State v. Monahan, 125 Conn. App. 113, 124, 7 A.3d 404 (2010).

To the extent that the defendant is claiming that the court’s evidentiary ruling foreclosed any possibility of the admission of evidence from the children on the issue of sibling separation, we do not agree. The court’s ruling pertained to the admission of two letters, which the court ruled were hearsay, and did not necessarily preclude the defendant from admitting other evidence from the children regarding the issue of sibling separation. Furthermore, the defendant does not point to any other instances in the record where the defendant sought to introduce into evidence, and the court declined to admit, testimony or other evidence regarding the children’s views on separation.

4

The defendant also argues that the court erroneously found that he would be willing to relocate to Maine. He further argues, assuming arguendo that the record supports the finding, that it was an abuse of discretion for the court to rely on this finding when determining the children’s best interests. He argues that by relying on the defendant’s predisposition to move to Maine if relocation were granted, the court implicitly stated that it does not have to give any consideration to the issue of sibling separation because such separation would not actually occur. We are not persuaded.

With respect to the first factor under § 46b-56d (b), namely, each parent’s reasons for seeking or opposing the relocation, the court noted that while the defendant opposed relocation, the defendant testified that if the plaintiffs motion for relocation were granted, he would move to Maine to be near his sons because he did not believe in a “ ‘long distance fathership.’ ” In analyzing the quality of the child’s future contact with the nonrelo-cating parent under § 46b-56d (b), the court stated that while the defendant expressed legitimate concerns about the plaintiffs custody arrangement, it “is persuaded that the defendant, as he testified to in court, would be willing to move his legal practice and his home to the greater Maine area, which would preserve close contact between both parents and their sons, which would clearly be in their best interests.”

“In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding on this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Buehler v. Buehler, 117 Conn. App. 304, 317-18, 978 A.2d 1141 (2009).

We cannot conclude that the court’s finding that the defendant was willing to move to Maine was clearly erroneous. The defendant testified that if the plaintiffs motion for relocation was granted, he would have to decide between remaining in Connecticut and moving to Maine. The defendant noted that one obstacle was financial, in that he had a low six figure income in Connecticut and was not guaranteed income in Maine. The defendant noted that “if we’re talking about finan-cials . . . the choice is clear.” The defendant, however, also stated that “[g]iven my solid and rich relationship with all my sons and what they mean to me in my life, I believe that I would have to move to Maine as well, as a long distance fathership goes against everything in my body.” The defendant also testified on a separate occasion about the obstacles to his relocation to Maine, namely, an inability to find employment in Maine and the desire of the two oldest siblings to continue attending high school in Fairfield. He testified, however, that “if the motion were granted . . . every bone in my body would want to be up with my three younger boys.” Despite the mention of obstacles, the defendant testified that he desired to move to Maine to be with his younger boys. The court is free to accept the defendant’s testimony in which he expressed a desire to move to Maine.

Contrary to the defendant’s argument, the court’s consideration of the defendant’s expressions about the prospect of moving to Maine does not necessarily indicate that the court failed to consider the issue of sibling separation. There is no indication from the memorandum of decision that the court failed to address the issue of sibling separation. Rather, the court discussed and credited Henderson’s testimony in which he concluded that it was in the children’s best interest for the two oldest children, who are close to graduation age, to remain in Fairfield and for the three youngest children to relocate to Maine. In analyzing the impact of relocation, the court noted that the defendant “would be willing” to move his legal practice to Maine, thereby preserving contact with his sons. The court further stated that the defendant’s “readiness to move to Maine and the plaintiffs willingness to provide him with additional weekend, holiday and summer vacation time with the children prior to any such move, would lessen any negative impact resulting from the proposed relocation.” While the court took into account the defendant’s willingness to move to Maine, the court gave no indication that his willingness translated into a definite plan to move to Maine. Rather, in its orders, the court took into account sibling separation between Maine and Connecticut when it referenced visitation schedules between the two states and ordered the parties to purchase web cams in order to interact with their children.

B

The defendant next claims that the court did not properly apply the test for relocation as set forth in § 46b-56d. We do not agree.

“[W]hether the court applied the correct legal standard is a question of law subject to plenary review.” Wieselman v. Hoeniger, 103 Conn. App. 591, 598, 930 A.2d 768, cert, denied, 284 Conn. 930, 934 A.2d 245 (2007).

1

The defendant argues that the court did not apply the proper test for relocation as set forth in § 46b-56d (b). The defendant specifically argues that the court failed to consider all five factors set forth in § 46b-56d (b) when concluding that relocation was in the children’s best interests. We disagree.

We agree with the defendant that the provisions of § 46b-56d (b) are mandatory. Section 46b-56d (b) provides: “In determining whether to approve the relocation of the child under subsection (a) of this section, the court shall consider, but such consideration shall not be limited to: (1) Each parent’s reasons for seeking or opposing the relocation; (2) the quality of the relationships between the child and each parent; (3) the impact of the relocation on the quantity and the quality of the child’s future contact with the nonrelocating parent; (4) the degree to which the relocating parent’s and the child’s life maybe enhanced economically, emotionally and educationally by the relocation; and (5) the feasibility of preserving the relationship between the nonrelocating parent and the child through suitable visitation arrangements.” (Emphasis added.)

The defendant argues that the court failed to consider, under § 46b-56d (b) (2) and (5), the quality of the relationships between the child and each parent and the feasibility of preserving the relationship between the nonrelocating parent and the child through suitable visitation arrangements. Although the court did not expressly devote paragraphs in its memorandum to these factors, the court expressly stated that it considered the criteria set forth in § 46b-56d. “[T]he trial court is presumed to have applied the law correctly, and it is the burden of the appellant to show to the contrary. . . . Moreover, even if the trial court record is ambiguous, we read the record to support, rather than to undermine, the judgment.” (Citation omitted; internal quotation marks omitted.) Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 9, 826 A.2d 1088 (2003).

2

The defendant also argues that the court did not properly consider the issue of sibling separation in its consideration of the five factors set forth in § 46b-56d (b). He argues that the statute provides a standard for analyzing the relocation of a single child, but does not take into consideration a situation where siblings are being separated. In such situations, the defendant argues, the court must consider the issue of sibling separation. Relying on case law from other jurisdictions, the defendant argues that compelling or extraordinary circumstances justifying the separation of siblings must exist before sibling separation can be ordered. The record shows that the court was aware of and considered the issue, but that other considerations favored the chosen disposition. Trial courts frequently and regrettably must address situations in which no feasible solution is ideal. In this instance, sibling separation, while not to be encouraged, was not a sufficiently strong consideration to trump all others. Financial and family considerations favored relocation. The court did not abuse its discretion.

II

The defendant next claims that the court abused its discretion with respect to various financial orders. We decline to review these claims.

“Our standard of review for financial orders in a dissolution action is clear. The trial court has broad discretion in fashioning its financial orders .... [T]his court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented.” (Citation omitted; internal quotation marks omitted.) Desai v. Desai, 119 Conn. App. 224, 235, 987 A.2d 362 (2010).

When ruling on the financial orders at issue, the court simply stated its orders, without any reasoning. The defendant filed a motion to reargue and for articulation in which he sought reargument and/or articulation with respect to the financial orders at issue, which the court denied. The defendant, however, failed to file a motion for review with this court in accordance with Practice Book § § 66-5 and 66-7. “It is axiomatic that the appellant must provide this court with an adequate record for review. See Practice Book § 61-10 .... [W]here a party is dissatisfied with the trial court’s response to a motion for articulation, he may, and indeed under appropriate circumstances he must, seek immediate appeal of the rectification memorandum to this court via the motion for review.” (Citation omitted; internal quotation marks omitted.) Ramondetta v. Amenta, 97 Conn. App. 151, 167-68, 903 A.2d 232 (2006). The defendant’s failure to seek review by this court pursuant to Practice Book § 66-7 precludes further review of the defendant’s claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       During the pendency of this appeal, the oldest child turned eighteen and the next oldest is approximately one year younger.

       The defendant cites: Mahoney v. Mahoney, Superior Court, judicial district of Ansonia-Milford, Docket No. FA07-400684 (March 31, 2008); Alves v. Alves, Superior Court, judicial district of New London, Docket No. 10 50 48 (October 12, 1994); Paul v. Paul, Superior Court, judicial district of New London, Docket No. 520208 (October 15, 1993); LaChapelle v. LaChapelle, Superior Court, judicial district of Stamford-Norwalk, Docket No. FA910119704 S (January 28, 1993) (8 Conn. L. Rptr. 339).

       The trial court is the “sole arbiter of credibility, [and it is] free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Remillard v. Remillard, 297 Conn. 345, 357, 999 A.2d 713 (2010).

         The court did devote paragraphs to three of the factors. Many of the factors in this case, however, overlap.

       We note that § 46b-56d does not explicitly require a court to consider the issue of sibling separation in the context of relocation.

       See, e.g., In re Marriage of Heath, 122 Cal. App. 4th 444, 18 Cal. Rptr. 3d 760 (2004); In re Marriage of Williams, 88 Cal. App. 4th 808, 105 Cal. Rptr. 2d 923 (2001); Sparkman v. Sparkman, 441 So. 2d 1361 (Miss. 1983); Valenti v. Valenti, 57 App. Div. 3d 1131, 869 N.Y.S.2d 266 (2008), leave to appeal denied, 12 N.Y.3d 703, 904 N.E.2d 841, 876 N.Y.S.2d 704 (2009); Pilon v. Pilon, 342 Pa Super. 52, 492 A.2d 59 (1985); Fuerstenberg v. Fuerstmberg, 591 N.W.2d 798 (S.D. 1999); Olson v. Olson, 438 N.W.2d 544 (S.D. 1989).

       Specifically, the defendant claims that the court abused its discretion (1) in refusing to apply retroactively its order modifying downward the defendant’s alimony and child support obligations, (2) in granting him a child support reimbursement of only $2240, (3) in ordering, when granting his motion to divide escrow moneys, that the sum of $4100 be paid to the defendant when the defendant was entitled to all of the escrow moneys other than the amount of $4100, (4) in denying him a $49,000 tax contribution from the plaintiff and (5) allowing the plaintiffs “safe harbor” provision to continue in light of her relocation to Maine.

       To the extent that the defendant failed to request an articulation for any of the financial orders at issue, we decline to review them on that basis. See Practice Book §§ 60-5 and 61-10; see also Mickey v. Mickey, 292 Conn. 597, 609, 974 A.2d 641 (2009) (“It is well established that [i]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record [when] the trial court, has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to aslc the trial judge to rule on an overlooked matter.” [Internal quotation marks omitted.]).


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. FRANCISCO JIMENEZ
    (AC 31920)
    Harper, Lavine and Beach, Js.
    Argued January 19
    Officially released April 5, 2011

      Francisco Jimenez, pro se, the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Paul N. Rotiroti, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Francisco Jimenez, appeals from the judgment of the trial court denying in part his motion to correct an illegal sentence and denying his application for the appointment of appellate counsel. The defendant claims that, insofar as the court denied his motion to correct and his application for the appointment of counsel, the court abused its discretion. As to that portion of the appeal concerning the motion to correct, we affirm the judgment of the trial court. We dismiss that portion of the appeal concerning the application for the appointment of counsel.

Following a trial by jury, the defendant was convicted of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (a) and possession of narcotics with intent to sell within 1500 feet of an elementary school in violation of General Statutes § 21a-278a (b). The court imposed a thirty-five year term of incarceration for the former count and a three year term of incarceration, to run consecutively with the first sentence, for the latter count. Thus, the court imposed a total effective sentence of thirty-eight years incarceration. Following a direct appeal, this court affirmed the judgment. State v. Jimenez, 73 Conn. App. 664, 808 A.2d 1190, cert, denied, 262 Conn. 929, 814 A.2d 381 (2002).

In August, 2009, the defendant filed in the trial court a motion to correct an illegal sentence. He asserted therein that his sentence was illegal because the thirty-five year term of incarceration imposed under § 21a-278 (a) exceeded the statutory sentencing limit and the statute did not authorize the sentence imposed. He also asserted that the sentence, falling outside of that authorized by the statute, was ambiguous. As to these claims, the court denied the motion after concluding that the statute authorized a sentence of between five years and life imprisonment. Additionally, the defendant asserted that the punishment authorized by the statute was disproportionately harsh when compared to the punishment authorized for other crimes, there was ambiguity in terms of the conduct for which the statute imposed criminal liability, the statute was ambiguous in terms of how a court should determine punishment on a case-by-case basis and the statute suffered from not having “a mandatory guideline system to clarify the ambiguous nature of its application.” The court reasoned that it lacked jurisdiction to entertain these additional claims and dismissed the motion to correct as to those claims.

After the court issued its memorandum of decision concerning the motion to correct, the defendant filed an application for the appointment of appellate counsel to represent him in bringing an appeal from that decision. The court appointed an attorney for the purpose of assessing the strength of any claims that could be pursued on appeal. The attorney represented to the court that, after sufficient inquiry into the matter, no solid legal grounds for appeal existed. Thereafter, the court denied the defendant’s application for the appointment of counsel. This appeal followed.

I

First, we address the defendant’s claim that the court improperly denied his motion to correct an illegal sentence. It is well settled that “[a]n illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory.” (Internal quotation marks omitted.) State v. McNellis, 15 Conn. App. 416, 443-44, 546 A.2d 292, cert, denied, 209 Conn. 809, 548 A.2d 441 (1988).

The defendant argues that the court, in concluding that the thirty-five year sentence did not exceed the statutory limit of § 2 la-278 (a) and that the sentence was not ambiguous, improperly interpreted the sentencing portion of the statute. We agree with the court, however, that the resolution of the defendant’s claims is controlled by the interpretation of § 21a-278 (a) set forth in State v. Delossantos, 211 Conn. 258, 282-85, 559 A.2d 164 (holding that § 2 la-278 [a] authorizes a minimum sentence of five years imprisonment and a maximum sentence of life imprisonment), cert, denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989). The court properly applied this authority in determining that the defendant’s sentence was not ambiguous and that it was authorized by the statute. The defendant has not persuaded us that any error exists.

II

Next, the defendant challenges the court’s denial of his application for the appointment of appellate counsel. We dismiss this portion of the appeal.

Practice Book § 63-7 provides in relevant part that “[t]he sole remedy of any defendant desiring the court to review an order concerning . . . the appointment of counsel shall be by motion for review under [Practice Book §] 66-6.” The defendant did not file a motion for review of the court’s denial of his application for the appointment of appellate counsel but has sought review of the ruling for the first time in this appeal. The defendant has not availed himself of his “sole remedy” and is unable to seek review in the present appeal. Accordingly, we dismiss that portion of the appeal concerning his claim that the court improperly denied his application for the appointment of appellate counsel. See State v. Casiano, 122 Conn. App. 61, 71, 998 A.2d 792, cert, denied, 298 Conn. 931, 5 A.3d 491 (2010).

The portion of the appeal concerning the court’s denial of the defendant’s application for the appointment of appellate counsel is dismissed. The judgment is affirmed in all other respects.

       The defendant is self-represented before this court and was self-represented during the proceedings at issue in this appeal. During his criminal trial, however, the defendant was represented by counsel.

       The court dismissed the remainder of the motion to correct. See footnote 3 of this opinion.

       The defendant has challenged only the portion of the judgment denying his motion to correct. In so doing, he has reiterated in his appellate brief several of the claims that the court dismissed for lack of subject matter jurisdiction. It is well settled that claims raised in a motion to correct an illegal sentence must fall within the jurisdictional parameters of Practice Book § 43-22 in that they relate to the legality of the sentence or the manner in which it was imposed. The defendant does not attempt to persuade us that these claims were not properly dismissed on jurisdictional grounds. Because even a cursory examination of these additional claims leads us to conclude that they are not a proper subject of a motion to correct an illegal sentence brought under Practice Book § 43-22, they have no bearing on our analysis of the court’s judgment denying the defendant’s motion to correct.