author: MCDONALD, J.

text:
    STATE OF CONNECTICUT v. MICHAEL V. MISENTI
    (AC 28872)
    McLachlan, Lavine and McDonald, Js.

      Argued October 29, 2008
    officially released February 10, 2009

      Jeremy S. Donnelly, for the appellant (defendant).

      RaheemL. Mullins, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Terri L. Sonnemann, assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Michael V. Misc.ti, appeals from the judgment of the trial court revoking his probation. On May 23,2007, after a probation revocation hearing, the court sentenced the defendant pursuant to General Statutes § 53a-32 to ten years of imprisonment, execution suspended after two years, followed by ten years of probation. On appeal, the defendant claims that the revocation of his probation was sought improperly in retaliation for his having filed motions to withdraw his guilty pleas and to modify his probation and that the evidence presented at his revocation hearing was insufficient to support the court’s finding. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On September 8, 2004, the defendant entered pleas of nolo contendere to one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a. At that time, the prosecutor informed the court that on November 22, 2003, the defendant was in contact via the Internet with the victim, a fourteen year old boy. The defendant and the victim arranged to have the defendant come over to the victim’s house that night at approximately 11:50 p.m. The victim and the defendant kissed, but the victim pulled away when the defendant touched the victim’s buttocks. The defendant then put his mouth on the victim’s penis. At that point, the victim asked the defendant to leave, and the defendant did so.

On January 20, 2005, following a presentence investigation, the court sentenced the defendant to ten years of imprisonment, execution suspended, and ten years of probation. The court expressly informed the defendant that the terms of his probation require him to “go through” sex offender counseling, which will require him to “admit something.”

At the revocation of probation hearing, the court heard evidence that on May 1, 2006, while beginning sex offender counseling, the defendant refused to discuss the details of his underlying offense with his counselor. The court heard evidence that on May 2, 2006, the defendant told Christopher Stoppa, his probation officer, that his attorney advised him not to discuss the case. Further, on May 3, 2006, Stoppa spoke with John T. Forrest, the defendant’s attorney at that time, who stated that he was filing a motion to withdraw the defendant’s pleas on the basis of an insufficient canvass and that Forrest wanted the office of adult probation to allow the defendant to delay his treatment until the court resolved the motion. Stoppa told Forrest that the office of adult probation was obligated to evaluate the defendant for sex offender treatment and that if the defendant continued his unwillingness to comply, Stoppa would seek to have the defendant’s probation revoked.

The court also heard evidence that on May 8, 2006, the defendant filed motions to withdraw his guilty pleas and to modify the terms of his probation. Thereafter, on May 12, 2006, Stoppa received a letter from Kate Tufano, of the center for the treatment of problem sexual behavior, advising him that the defendant had filed those motions. In the letter, Tufano concluded that the defendant could no longer participate in sex offender treatment. Further, on May 22, 2006, Stoppa signed the arrest warrant affidavit for the defendant’s probation violation and applied for an arrest warrant charging that the defendant had violated his probation.

On May 23, 2007, following a probation revocation hearing, the court ruled that the defendant had violated the condition of his probation requiring his cooperation with sex offender treatment. The court then revoked the defendant’s probation and sentenced him to ten years of imprisonment, execution suspended after two years, followed by ten years of probation. This appeal followed.

I

The defendant claims on appeal that his probation officer improperly sought to revoke his probation in retaliation for having filed motions to modify the conditions of his probation and to withdraw his guilty pleas. The defendant argues that this violated his rights under the first amendment to the United States constitution, applicable to the states through the due process clause of the fourteenth amendment, and article first, §§10 and 14, of the Connecticut constitution, which guarantee citizens the right to petition their government and to seek redress for injuries they claim they have sustained.

The defendant’s claim was not preserved at trial for our review, as the defendant did not bring his claims to the attention of the court during his probation revocation hearing. “Any party intending to raise any question of law which may be subject to an appeal must either state the question distinctly ... in a written trial brief ... or state the question distinctly ... on the record . . . .” Practice Book § 5-2. “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” (Emphasis in original; internal quotation marks omitted.) In re Emerald C., 108 Conn. App. 839, 852 n.9, 949 A.2d 1266, cert. denied, 289 Conn. 923, 958 A.2d 150 (2008). Our Supreme Court has held that this rule applies to constitutional issues. Statewide Grievance Committee v. Whitney, 227 Conn. 829, 846, 633 A.2d 296 (1993).

The defendant argues that his claim was “functionally” raised at the probation revocation hearing because at that hearing he established that a revocation of probation was not sought until after his motions were filed. We conclude that this evidence merely established the sequence of events. Although our Supreme Court has sometimes reviewed claims that it found were raised “functionally” before the trial court, it has done so only when a similar claim was raised in the trial court and the record was adequate to review the claim. See Salmon v. Dept. of Public Health & Addiction Services, 259 Conn. 288, 305, 788 A.2d 1199 (2002). In this case, the only part of the record arguably suggesting a claim of retaliation was a single statement by the defendant’s counsel that he “found it interesting [the office of adult probation] never [sought to revoke the defendant’s probation] until [it] received the motion to withdraw.” Thus, the defendant never asked the court to rule on such a claim. In the absence of a focus on the issue, we conclude that the evidentiary record is inadequate to review the defendant’s claim. Accordingly, we decline to consider the defendant’s claim on appeal.

II

The defendant next claims that the evidence adduced at his probation revocation hearing was insufficient to support the court’s finding that he violated his probation. The defendant argues that there was insufficient evidence to demonstrate that he failed to participate in sex offender treatment. We disagree.

To find that a defendant has violated the conditions of probation, the court must determine that the predicate facts underlying the violation have been established by a preponderance of the evidence. State v. Davis, 229 Conn. 285, 302, 641 A.2d 370 (1994). “In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . Our review is limited to whether such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 185, 842 A.2d 567 (2004), quoting State v. Hill, 256 Conn. 412, 425-26, 773 A.2d 931 (2001).

With reference to whether the evidence established a violation of probation, General Statutes § 53a-32a provides in relevant part: “If a defendant who entered aplea of nolo contendere or a guilty plea under the [doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)] to a violation of subdivision (2) of section 53-21 of the general statutes . . . was ordered to undergo sexual offender treatment as a condition of probation, becomes ineligible for such treatment because of such defendant’s refusal to acknowledge that such defendant committed the act or acts charged, such defendant shall be deemed to be in violation of the conditions of such defendant’s probation

Our Supreme Court has held, with respect to the need for a defendant to discuss his offense with his sex offender treatment counselor, that a “defendant is free to maintain the innocence associated with his plea [of guilty under the Alford doctrine]; in order to maintain the conditional liberty created by probation . . . however, he [is] required to comply with its conditions.” (Citation omitted; internal quotation marks omitted.) State v. Faraday, supra, 268 Conn. 206. Our Supreme Court has also noted that a plea under the Alford doctrine is “the functional equivalent [to an unconditional] plea of nolo contendere . . . .” (Citation omitted; internal quotation marks omitted.) Id., 205 n.17.

In this case, the court advised the defendant at sentencing that the office of adult probation was going to require him to undergo sex offender counseling, which would require him to make admissions. The defendant also signed a form that listed the terms of his probation, including his undergoing sex offender treatment and counseling as deemed necessary by the office of adult probation. The defendant’s testimony during his probation revocation hearing indicates that he refused to discuss the details of his underlying offense at counseling pending the disposition of his motion to withdraw his guilty pleas. As a result, the defendant’s sex offender treatment was terminated. Applying the language of § 53a-32a to the facts adduced at the defendant’s probation violation hearing, we conclude that there was sufficient evidence for the court to find that the defendant violated the condition of his probation requiring him to undergo sex offender treatment. See id., 206.

The judgment is affirmed.

In this opinion the other judges concurred.

       He also claims that this court should allow him to withdraw his guilty pleas. We decline to review this claim because it is not properly before us. See Rocque v. DeMilo & Co., 85 Conn. App. 512, 526, 857 A.2d 976 (2004).
      “[U]nless the jurisdiction of this court is properly invoked, we cannot exercise our appellate jurisdiction.” Id., 527. This court is reluctant to dismiss appeals for technical deficiencies in an appellant’s appeal form, but it will not entertain a claim containing a defect of substantive dimension. Id. If an appellant desires to have this court review a court order granting or denying a motion, an appeal form indicating that intention must be filed. Id. In this case, the defendant moved to withdraw his pleas on May 8, 2006. The court, Ward, J., denied that motion on August 29, 2006. The defendant’s probation revocation hearing took place before the court, White, J., on May 17, 2007, and the court issued its ruling and sentenced the defendant on May 23, 2007. The defendant filed this appeal on June 1,2007. The defendant’s appeal form states that the appeal challenges the May 17,2007judgment of the court, White, J., finding that the defendant violated his probation. The defendant’s appeal form does not refer to the August 29, 2006 judgment of the court, Ward, J., denying his motion to withdraw his pleas. Furthermore, although the defendant’s appeal was filed within the twenty day period to appeal from the judgment revoking his probation, it was filed approximately eight months after the expiration of the period to appeal from the judgment denying his motion to withdraw his pleas. See Practice Book § 61-5. These defects were of substantive dimension and deprive this court of jurisdiction to entertain the defendant’s claim. See Rocque v. DeMilo & Co., supra, 85 Conn. App. 527-28. We accordingly do not entertain this claim.

       In accordance with General Statutes § 54-86e, all information that could be used to identify the victim will be kept confidential.

       The defendant has not requested review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine; see Practice Book § 60-5; and, therefore, we will not engage in either level of review. State v. Longo, 106 Conn. App. 701, 709, 943 A.2d 488 (2008).


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JEROME F. MOORE
    (AC 29099)
    Flynn, C. J., and Robinson and Stoughton, Js.

      Argued December 9, 2008
    officially released February 10, 2009

      Daniel C. Ford, special public defender, for the appellant (defendant).

      Sarah Hanna, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Patrick J. Griffin, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Jerome F. Moore, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32, following his arrest on charges of sale of narcotics in violation of General Statutes § 21a-277 (a), possession of marijuana in violation of General Statutes § 21a-279 (c), use of drug paraphernalia in violation of General Statutes § 2 la-267 (a) and possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a-279 (d). On appeal, the defendant claims that (1) a search of his apartment by his probation officer violated his rights under the fourth amendment to the United States constitution, (2) the evidence was insufficient for the court to conclude that the defendant had violated his probation and (3) the court abused its discretion in revoking the defendant’s probation. We disagree and, therefore, affirm the judgment of the trial court.

Our review of the defendant’s appeal is based on the following facts. The defendant pleaded guilty on July 14, 2005, to sale of narcotics in violation of § 21a-277 (a). On October 14, 2005, the court convicted the defendant of the charge and sentenced him to five years incarceration, execution suspended, and five years probation. The standard conditions of the defendant’s probation included that he refrain from violating “any criminal law of the United States, this state or any other state or territory” and required him to “[s]ubmit to any . . . urinalysis, alcohol and/or drug testing, and or counseling sessions as required by the Court or the Probation Officer.” The conditions of probation further required the defendant to “[s]ubmit to a search of [his] person, possessions, vehicle or residence when the Probation Officer has a reasonable suspicion to do so.” In addition to these standard conditions, the court ordered various special conditions, including that the defendant participate in “substance abuse evaluation and/or treatment.” On three separate occasions, the defendant signed a form detailing the conditions of his probation and indicating that he understood and agreed to abide by them.

On July 11, 2006, the defendant voluntarily submitted a urine sample to his probation officer, Thomas Yoxall, who collected the sample for purposes of a random drug test. The test results showed the presence of cocaine and marijuana. Yoxall determined that the defendant was not attending substance abuse treatment contrary to the defendant’s conditions of probation and the defendant’s reports to Yoxall. In mid-August, 2006, a colleague of Yoxall, while conducting a home visit with the defendant’s wife, observed the defendant acting nervously and attempting to conceal drug paraphernalia present in the apartment. On the basis of the test and his colleague’s report, Yoxall and two additional probation officers conducted a search of the defendant’s apartment on August 29, 2006, the date of the defendant’s next scheduled reporting.

Yoxall’s search of the defendant’s apartment revealed nine bags of a substance later determined to be crack cocaine, a digital scale and bags commonly used for distributing narcotics and additional drug paraphernalia. The probation officers contacted local law enforcement. Officer Joseph Dews of the Waterbury police department arrived and arrested the defendant on a charge of possession of narcotics with intent to sell. In a search of the defendant’s person, Dews found a small plastic bag containing what was later confirmed to be marijuana. Yoxall testified that when the narcotics initially were found, the defendant’s wife, who was present during the search, told the defendant that she was “sick of this stuff’ and that the defendant “hung his head” in response. Dews testified that the defendant told him that the drugs belonged to him and that they did not belong to his wife.

On March 2 and 8, 2007, the court, Trombley, J., held a violation of probation hearing. Following the hearing, during which Yoxall and Dews testified, the court rendered judgment finding that the defendant had violated his probation. The court held that Yoxall’s search of the defendant’s apartment was justified by the defendant’s failed drug test and the colleague of Yoxall’s observation of drug paraphernalia in the defendant’s apartment. The court further noted that the defendant was aware of the conditions of his probation, having acknowledged them on three previous occasions in writing. The court revoked the defendant’s probation and sentenced him to five years incarceration. The defendant subsequently appealed to this court.

I

The defendant first claims that Yoxall violated his fourth amendment rights when Yoxall searched his apartment without a search warrant. The defendant contends that as a result, the exclusionary rule should have applied to bar the state from introducing evidence discovered during the search at his violation of probation hearing. The defendant failed to preserve this issue for appeal and seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We afford the defendant’s claim review because the record is adequate for review, and the claim is of constitutional magnitude, as it implicates the defendant’s right to be free of unreasonable searches. See Payne v. Robinson, 207 Conn. 565, 570, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988). However, because we conclude that no constitutional violation exists, the defendant’s claim fails to satisfy Golding’s third prong.

The defendant’s terms of probation required that he refrain from violating any criminal laws and that he “[s]ubmit to a search of [his] person, possessions, vehicle or residence when the Probation Officer has a reasonable suspicion to do so.” Thus, to justify his search of the defendant’s apartment, Yoxall needed a reasonable suspicion that the defendant had violated the terms of his probation. See State v. Smith, 207 Conn. 152, 174, 540 A.2d 679 (1988). “The reasonable suspicion standard requires no more than that the authority acting [here the defendant’s probation officer] be able to point to specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant a belief . . . that a condition of [probation] has been or is being violated.” (Internal quotation marks omitted.) Id. Prior to searching the defendant’s apartment, Yoxall knew that the defendant had used cocaine and marijuana due to the defendant’s failed urinalysis. He also was aware that the defendant had not attended substance abuse treatment in accordance with the terms of his probation. In addition, in the week prior to the search, Yoxall’s colleague had observed the defendant attempting to hide drug paraphernalia present in his apartment. Considering the foregoing, Yoxall had ample basis for a reasonable suspicion that the defendant had violated the terms of his probation. The defendant was aware of and had signed and agreed to the standard term of his probation that provided that his probation officer could search his premises any time the officer had a reasonable suspicion to do so. We conclude that the search of the defendant’s apartment pursuant to the terms of the defendant’s probation was reasonable given the circumstances and did not violate the defendant’s fourth amendment rights.

Even if we were to determine that Yoxall did not have a reasonable suspicion for his search, the defendant’s suppression claim is unavailing because the exclusionary rule does not apply to revocation of probation hearings. This court has considered the question of whether a trial court properly applied the exclusionary rule to suppress evidence in a probation revocation hearing. In State v. Fuessenich, 50 Conn. App. 187, 190, 717 A.2d 801 (1998), cert. denied, 247 Conn. 956, 723 A.2d 813, cert. denied, 527 U.S. 1004, 119 S. Ct. 2339, 144 L. Ed. 2d 236 (1999), the defendant’s probation officer required the defendant to submit to a urinalysis, which ultimately showed the presence of cocaine in the defendant’s system. The conditions of the defendant’s probation required him to refrain from violating “ ‘any criminal law.’ ” Id. The defendant filed a motion to dismiss the subsequent violation of probation charge and to exclude evidence of the test results, claiming that the probation officer had violated his fourth amendment rights in requiring him to submit to the test. Id. The trial court agreed with the defendant, excluded evidence of the test results and dismissed the violation of probation charge. Id., 191. Thereafter, the state appealed, arguing that the exclusionary rule did not apply to revocation of probation proceedings and, therefore, that the court improperly excluded the evidence. Id., 196-97.

Our analysis in Fuessenich was guided by our Supreme Court’s decision in Payne v. Robinson, supra, 207 Conn. 565. In Payne, the court considered whether the exclusionary rule applies to probationary proceedings when the evidence sought to be excluded was obtained by a police officer acting unaware of the defendant’s probation status and without a search warrant. The Payne court noted that “[t]he purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim .... Instead, the rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures . . . .” (Internal quotation marks omitted.) Id., 570, quoting United States v. Calandra, 414 U.S. 338, 347, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). The court held that the exclusionary rule would have only a marginal effect at best in deterring illegal police activity in the circumstances presented because the use of evidence in a revocation of probation hearing is outside the officer’s zone of primary interest. Payne v. Robinson, supra, 571. The court specifically did not reach the question of “whether the exclusionary rule would apply in probation revocation proceedings when the police officer who had conducted the search was aware or had reason to be aware of the suspect’s probationary status.” Id., 573.

After recounting the salient portions of Payne, this court distinguished the circumstances under review in Fuessenich: “Here, it was not a police officer, but, rather, the defendant’s probation officer who required the defendant to submit a urine sample for drug testing. The fact that the probation officer obviously knew of the defendant’s probationary status does not make this case analogous to that of a police officer who is aware that a person is on probation. There was no police participation in requiring the defendant to submit to urinalysis, and the probation officer was acting in accordance with conditions to which the defendant had agreed at the initial meeting of the defendant and the probation officer. Probation officers act under the auspices of the judicial branch in requiring the defendant to submit to conditions of probation. State v. Jacobs, [229 Conn. 385, 393, 641 A.2d 1351 (1994)]. Indeed, as State v. Smith [supra, 207 Conn. 162-69] makes clear, the probation process operates as an arm of the judiciary, not of the police or prosecution. . . . Thus, when aprobation officer demands aprobationer’s compliance with a condition of probation, he or she is acting as a representative of the judicial branch and not as a police officer. Applying the exclusionary rule to probation revocation hearings would make it more difficult for probation officers to perform properly their job of helping to ensure the rehabilitation of offenders. . . .

“The purpose of the exclusionary rule, to discourage improper police procedure, would not be furthered by applying the exclusionary rule to probation revocation hearings and is inapplicable to the present case. Because Payne instructs that the exclusionary rule does not apply to probation revocation hearings, the trial court’s suppression of the urinalysis was improper.” (Citations omitted; internal quotation marks omitted.) State v. Fuessenich, supra, 50 Conn. App. 198-99.

In the present case, although the police were present eventually and did arrest the defendant, the primary search was performed by Yoxall, the defendant’s probation officer, and two other probation officers. Further, the present case presents circumstances similar to those in Fuessenich. In that case, we determined that under our Supreme Court’s reasoning in Payne and the circumstances presented, the exclusionary rule did not apply to probation revocation hearings. Here, the defendant seeks to apply the rule to exclude from his violation of probation hearing evidence obtained during the course of his probation officer’s search of his apartment. Under our holding in Fuessenich, the defendant’s claim must fail.

We conclude that the defendant’s probation officer possessed a reasonable suspicion to search the defendant’s apartment, and, therefore, the search did not violate the defendant’s right under the fourth amendment to be free from unreasonable searches.

II

The defendant next claims that the evidence was insufficient for the court to find that he had violated his probation. He argues that the record does not support the court’s conclusion that he possessed narcotics because there was no evidence that he was in exclusive control of the apartment where the narcotics were discovered. We are not persuaded.

“[A] trial court may not find a violation of probation unless it finds that the predicate facts underlying the violation have been established by a preponderance of the evidence at the hearing—that is, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation.” State v. Davis, 229 Conn. 285, 302, 641 A.2d 370 (1994). “In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence.” (Internal quotation marks omitted.) State v. McElveen, 69 Conn. App. 202, 205, 797 A.2d 534 (2002). “A challenge to the sufficiency of the evidence is based on the court’s factual findings. The proper standard of review is whether the court’s findings were clearly erroneous based on the evidence. ... A court’s finding of fact is clearly erroneous and its conclusions drawn from that finding lack sufficient evidence when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) State v. Hooks, 80 Conn. App. 75, 80-81, 832 A.2d 690, cert. denied, 267 Conn. 908, 840 A.2d 1171 (2003).

The evidence before the court was sufficient for its finding that the defendant had violated the terms of his probation. First, the state offered evidence that the defendant had failed a urinalysis. Second, Yoxall testified that the defendant had not been attending substance abuse treatment as required by the terms of his probation. Third, Yoxall’s search of the defendant’s apartment revealed narcotics and evidence of an intention on the part of the defendant to sell those narcotics. The defendant also was found to have marijuana on his person. In addition, Dews testified that the defendant admitted that the narcotics belonged to him, and specifically did not belong to his wife, the other occupant of the apartment. The court also heard testimony as to the reaction of the defendant’s wife upon the finding of the narcotics, from which the court was entitled to draw the reasonable and logical conclusion that the contraband belonged to the defendant. We conclude that the court’s finding that the state had proven that the defendant had violated his probation by a preponderance of the evidence was not clearly erroneous.

Ill

The defendant’s final claim is that the court abused its discretion in revoking his probation. We disagree.

“The standard of review of the trial court’s decision at the [dispositional] phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Preston, 286 Conn. 367, 377, 944 A.2d 276 (2008).

“On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion. ... In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender and the protection of society. . . . The important interests in the probationer’s liberty and rehabilitation must be balanced, however, against the need to protect the public.” (Internal quotation marks omitted.) State v. Hedge, 89 Conn. App. 348, 351, 873 A.2d 254, cert. denied, 274 Conn. 917, 879 A.2d 894 (2005).

The following additional facts are relevant to our review of the defendant’s claim. Yoxal testified at the violation of probation hearing that despite the defendant’s failure to attend the substance abuse treatment previously detailed, he was provided an additional opportunity in another treatment program. Yoxall indicated that the defendant again failed to attend required treatment sessions. Yoxall also testified that the defendant had had multiple positive tests indicating drug use over the course of his probation. Evidence of the defendant’s criminal record, which included multiple narcotics convictions and two prior violations of probation, was also before the court. On the basis of this evidence, including the pending charges facing the defendant, the court concluded that neither further probation nor a lesser sentence would serve any useful rehabilitative purpose. Accordingly, the court revoked the defendant’s probation and reinstated the five year sentence originally imposed.

Our review of the record leads to our determination that the court did not abuse its discretion in revoking the defendant’s probation and reinstating his original sentence of incarceration. The court had substantial evidence that while the defendant was on probation, he was engaged actively in the criminal activity for which he had been convicted in October, 2005: possession of narcotics with the intent to sell. The evidence that the defendant had tested positive for drug use on multiple occasions demonstrated that he was not abiding by the terms of his probation. Affording every reasonable presumption to the correctness of the court’s ruling, as we must, we conclude that the court’s decision was not an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Standard conditions of probation are imposed on ail probationers. The probationer must sign a form detailing these conditions, indicating that the probationer has read, understood and agreed to abide by them. See JD-AP-110 (Rev. July, 2005).

       In Ms reply brief, the defendant argues that the standard conditions of probation are a contract of adhesion. He contends that because “the conditions of probation are set either by a prosecutor or the court . . . the defendant is in a weak position and has little choice about the terms or conditions of his probation.” The defendant was convicted after he pleaded guilty to the charges against him, knowing that he would be placed on probation and that the standard conditions of such probation would apply. He was free to accept this plea agreement or to reject it and to proceed to trial. Under these circumstances, we do not believe that a contract of adhesion analysis is appropriate. Such analysis is generally reserved for contractual agreements in business situations in which one party to the contract is left with virtually no choice but to agree to its terms due to the party’s substantially lesser bargaining power.


author: LAVINE, J.

text:
    IN RE CHEILA R.

    (AC 29151)
    Gruendel, Lavine and West, Js.
    Argued December 3, 2008
    officially released February 10, 2009

      David V. DeRosa, for the appellant (respondent mother).

      Tammy Nguyen-ODowd, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Susanne D. McNamara, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LAVINE, J.

The respondent mother, Melissa R., appeals from the judgment of the trial court terminating her parental rights with respect to her daughter after concluding that she had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, she could assume a responsible position in the life of the child pursuant to General Statutes § 17a-112 (j) (3) (B) (i). On appeal, the respondent claims that there was an insufficient basis for the court to find by clear and convincing evidence that she had failed to achieve a sufficient degree of rehabilitation.We affirm the judgment of the trial court.

In its memorandum of decision, the court found the following relevant facts. The respondent was born in May, 1988, and was in the fourth month of her second pregnancy before she knew that she was carrying the child, who was bom in July, 2005. The respondent had been impregnated by the live-in boyfriend of the child’s maternal grandmother. He was bom in 1978. As of the date of the termination of her parental rights, the respondent had not yet completed high school.

On September 13, 2005, the department of children and families (department) invoked a ninety-six hour hold on behalf of the child. See General Statutes § 17a-lOlg. On September 16, 2005, the petitioner, the commissioner of children and families, filed a neglect petition, alleging that the child was being permitted to live under conditions, circumstances or associations that were injurious to her well-being. On February 23, 2007, the petitioner filed a petition to terminate the respondent’s parental rights, alleging that the respondent was unable or unwilling to benefit from reunification efforts, that the child had been found in a prior proceeding to have been neglected and that the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, she could assume a responsible position in the life of the child.

Following a hearing, the court found that the respondent has unresolved mental health issues that negatively affect her ability to provide appropriate care for the child, as well as unresolved sexual victimization issues. On September 13, 2005, the respondent was overwhelmed and depressed and indicated that she did not want to be a parent to the child. The court found that the respondent had demonstrated poor judgment by failing to address her mental health issues and had compromised the safety and well-being of the child. Despite intervention, assessment and assistance offered by the department, the respondent had failed to act appropriately and continued to put her interests before those of the child.

The court found that the child had been adjudicated neglected and was committed to the care and custody of the petitioner. The respondent was informed by employees of the department on more than one occasion that to facilitate reunification with the child, she needed to enhance her parenting skills, secure adequate income and housing and participate in individual counseling. The court ordered specific steps for the respondent on July 20, 2006. The respondent failed to comply with steps requiring her to keep the department and the child’s attorney informed of the child’s whereabouts, participate in individual and parent counseling, make progress toward identified treatment goals, secure and maintain adequate housing and legal income and visit the child as often as the department permitted.

In September, 2005, the respondent, then a minor herself, was offered a place in a department licensed foster home because she was homeless. The child was to be placed with the respondent in the foster home. The respondent accepted the placement but failed to comply with the curfew, skipped school and left the foster home to return to the home of the maternal grandmother without permission of department personnel.

On June 5, 2006, the respondent was placed at St. Agnes Maternity Group Home (St. Agnes) to facilitate reunification with the child. While at St. Agnes, the respondent was provided with numerous services, including but not limited to parenting education, individual therapy, life skills, health education and housing. The respondent was eligible to remain at St. Agnes for up to two years and to participate in a transitional living program. On July 20, 2006, the respondent entered into a service agreement with the department to ensure the child’s safety. In the event that the respondent did not fulfill her part of the agreement, her placement at St. Agnes would be in jeopardy. On August 8, 2006, the child was placed at St. Agnes with the respondent. On August 10, 2006, and again on September 1, 2006, the respondent requested that the child be returned to foster care to allow the respondent to have an off-site overnight visit with her boyfriend. The department employees denied the respondent’s request, explaining that the respondent needed to bond with the child.

On August 28 and September 29,2006, the respondent violated the service agreement by accepting an automobile ride from the maternal grandmother. The respondent demonstrated poor judgment in that the maternal grandmother’s motor vehicle had been “totaled” in an accident and had not been repaired. Moreover, when the child was transported in the vehicle, she did not have the benefit of a child safety seat. Between June 5 and September 29, 2006, the respondent failed to abide by the St. Agnes curfew, even after she was reunited with the child. On September 29, 2006, the respondent informed employees of the department that she did not want to remain at St. Agnes and asked that the child be placed in foster care. On that date, the respondent was discharged from St. Agnes. She moved in with her boyfriend, who refused the department’s request that he submit to a substance abuse evaluation. The respondent was permitted to visit the child, but she visited with the child on only eleven out of twenty opportunities and has not seen the child since January 13, 2007.

On January 17, 2007, the respondent was devastated by her boyfriend’s decision to leave her and move to Texas. The respondent was referred for individual therapy to help her manage her emotions, but the respondent went to Puerto Rico on January 19, 2007, without letting department employees know how to communicate with her. On February 16, 2007, the respondent informed department employees that she had returned to Connecticut and was residing with the maternal grandmother. She did not, however, ask to visit with the child. On more than one occasion, the respondent stated that she was willing to consent to the termination of her parental rights. The court found by clear and convincing evidence that the respondent had failed to achieve a sufficient degree of rehabilitation.

At the time of the termination hearing, the child was a relatively healthy and happy two year old, who was developmentally on target. She had spent most of her life in foster care. After being with the respondent at St. Agnes, the child was returned to her initial foster home where she has remained since September 29, 2006. Her foster parents, with whom the child has a strong bond, have indicated a willingness to adopt her.

With respect to the disposition factors set out in § 17-112 (k), the court found by clear and convincing evidence that the employees of the department had made reasonable efforts to reunify the child with the respondent, that services were offered in a timely and appropriate manner, and that the respondent was unable or unwilling to benefit from reasonable reunification efforts. See General Statutes § 17a-112 (j) (1); see also the federal Adoption Assistance and Child Welfare Act of 1980, as amended by 42 U.S.C. § 670 et seq. The court found by clear and convincing evidence that the respondent failed to comply with court-ordered steps and that she had not made realistic and sustained efforts to conform her conduct to minimally acceptable parenting standards. The respondent failed to cooperate with department and service providers to whom she was referred. Moreover, the respondent failed to make the lifestyle changes necessary to indicate that she would be a safe, responsible and nurturing parent. The child exhibits limited bonding with the respondent due to the respondent’s inability or reluctance to accept her role as the child’s parent. To permit the child to return to the respondent’s care would compromise the child’s safety. Neither the department nor a third party prevented the respondent from maintaining a relationship with the child, and economic circumstances did not prevent a relationship between the respondent and the child from developing, although the limitations and restrictions inherent to foster care were in effect.

The court also found that it was in the best interest of the child to terminate the respondent’s parental rights. The child has thrived in her foster home, where she originally had been placed in September 2005. To remove her from the foster parents who have nurtured her and want to adopt her could be detrimental to the child’s development. Although the respondent loves the child and wants reunification, the court found that the respondent is not capable of making crucial decisions concerning the child’s needs for basic care despite the fact that she has completed parenting classes. When she attended parenting classes, the respondent was unable mentally to process and to apply information. By clear and convincing evidence, the court found that the respondent’s performance demonstrated that she lacked the attributes and characteristics necessary to fill a valid parental role. She was recalcitrant concerning referrals and was uncommitted to individual and parenting counseling and to complying with the laws of the state. The child has a pressing need for permanence and stability that cannot wait for the considerable amount of time the respondent needs to address her issues, to undertake the counseling she needs and to establish herself in the community. The court found that the respondent’s conduct clearly and convincingly shows that it is unlikely that she will ever be able to conform her behavior to appropriate norms or to be able to serve as a safe, nurturing and responsible parent for the child. The court concluded, after balancing the child’s individual and intrinsic needs for stability and permanency against the benefit of remaining in the respondent’s life, that the child’s best interest cannot be served by continuing to maintain any legal relationship with the respondent.

General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the [department of [cjhildren and [families has made reasonable efforts to locate the parent and to reunify the child with the parent ... (2) termination is in the best interest of the child, and (3) . . . (B) the child (i) has been found by the Superior Court ... to have been neglected or uncared for in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . . On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . .

“A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. In applying the clearly erroneous standard to the findings of the trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence. . . . The question for this court ... is not whether it would have made the findings the trial court did, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed. . . .

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Trevon G., 109 Conn. App. 782, 787-88, 952 A.2d 1280 (2008).

“Personal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Internal quotation marks omitted.) Id., 789. “[T]he failure to comply with specific steps ordered by the court typically weighs heavily in a termination proceeding.” In re Devon B., 264 Conn. 572, 584, 825 A.2d 127 (2003).

On appeal, the respondent claims that the court improperly found that she placed her needs ahead of those of the child because the department and St. Agnes interpreted the court-ordered specific steps in a manner that placed unreasonable demands on her. As a result of those demands, the respondent claims, she was overwhelmed, which caused her to make poor decisions and appear to have abdicated her parental responsibility. We disagree that there was insufficient evidence to support the court’s findings by clear and convincing evidence that the respondent failed to achieve sufficient rehabilitation and that it is in the best interest of the child to terminate the respondent’s parental rights. The respondent’s claim demonstrates a lack of understanding of what it takes to be a parent. To be a protective, nurturing parent, one must be able meet the needs of one’s child, which are paramount, regardless of the needs of the parent. See General Statutes § 117a-112 (j) (3) (B) (i); In re Alejandro L., 91 Conn. App. 248, 259-60, 881 A. 2d 450 (2005) (critical issue is not whether parent has improved ability to manage own life but whether parent has gained ability to care for needs of child). The record demonstrates that the respondent, seventeen at the time she gave birth, has not come to terms with her need for mental health treatment and education, in addition to gaining employment, housing and parenting skills that any parent must possess to protect and nurture a child.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also terminated the parental rights of the child’s father, who has not appealed from that judgment. We therefore refer in this opinion to the respondent mother as the respondent.

       The child, through counsel, has adopted the brief of the petitioner, the commissioner of children and families.

       The mother’s first pregnancy occurred when she was fifteen and ended in a miscarriage.

       The respondent contends that the specific steps ordered by the court were too onerous for a teenage mother to follow. The respondent, however, signed the standard specific steps form, JD-JM-106 Rev. 5-99. She never asked that the specific steps be modified to accommodate her situation. Moreover, the respondent did not raise this claim in the trial court, and the court made no findings in that regard. We decline to afford it review. See In re Jeffrey C., 261 Conn. 189, 197 n.5, 802 A.2d 772 (2002).


author: FREEDMAN, J.

text:
    STATE OF CONNECTICUT v. MICHAEL G. SMITH
    (AC 28280)
    Bishop, Robinson and Freedman, Js.

      Argued October 17, 2008
    officially released February 10, 2009

      Jeffrey C. Kestenband, for the appellant (defendant).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and Peter A. McShane, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

FREEDMAN, J.

The defendant, Michael G. Smith, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55 (a) (1) and 53a-55a. On appeal, the defendant claims that the trial court improperly admitted into evidence the prior sworn testimony of a witness from the defendant’s previous trial. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 8, 2001, the victim, Eric Dames, went to the Sports Bar in Groton. Also present at the Sports Bar were the defendant and John Thomas. Approximately one week prior to November 8, 2001, Thomas and the victim had a verbal confrontation. There were no problems inside the Sports Bar, however, on November 8, 2001. When Thomas left the Sports Bar, the victim approached Thomas outside, and the two argued. The argument escalated into a physical fight. At this point, the defendant, who was armed with a gun, came to Thomas’ defense. During the course of the fight between the victim and the defendant, the victim punched the defendant in the face, and the defendant dropped the gun. The defendant retrieved the gun, and, when the victim fell, the defendant pulled the victim’s jacket over his head and shot the victim. The bullet injured the victim’s aorta, causing him to bleed to death.

The defendant was charged with murder and criminal possession of a firearm in connection with this incident. At his trial in 2004, the defendant was convicted of criminal possession of a firearm, but the jury was unable to reach a verdict on the murder charge. State v. Smith, 91 Conn. App. 133, 135 n.l, 880 A.2d 959, cert. denied, 276 Conn. 917, 888 A.2d 86 (2005). Following retrial on the mursder charge in 2006, the defendant was convicted of the lesser included offense of manslaughter in the first degree with a firearm, in violation of §§ 53a-55 (a) (1) and 53a-55a. The defendant then filed this appeal, in which he argues that the court improperly admitted into evidence the prior sworn testimony of Sarah Norton. Specifically, the defendant argues that the state did not make an adequate showing that Norton was unavailable to testify at trial and, further, that the admission of Norton’s testimony constituted a violation of his constitutional rights to due process and confrontation.

I

We first consider the defendant’s claim that the state did not make an adequate showing that Norton was unavailable. The defendant acknowledges that he did not object to the introduction of the testimony on this ground, and, therefore, seeks review of his claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We review the defendant’s claim because the record is adequate for our review, and the claim is of constitutional magnitude; we conclude, however, that the defendant’s claim fails to satisfy the third prong of Golding because the alleged constitutional violation did not clearly exist and did not clearly deprive the defendant of a fair trial. See State v. Martin, 100 Conn. App. 742, 745, 919 A.2d 508, cert. denied, 282 Conn. 928, 926 A.2d 667 (2007).

Testimonial hearsay statements “may be admitted only when (1) the declarant is unavailable to testify, and (2) the defendant has had a prior opportunity to cross-examine the declarant.” State v. Camacho, 282 Conn. 328, 348-49, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007). “[D]ue diligence to procure the attendance of the absent witness [is] ... an essential . . . predicate of unavailability. ... To take advantage of the hearsay exceptions requiring unavailability, the proponent must show a good faith, genuine effort to procure the declarant’s attendance by process or other reasonable means. . . . This showing necessarily requires substantial diligence. In determining whether the proponent of the declaration has satisfied this burden of making reasonable efforts, the court must consider what steps were taken to secure the presence of the witness and the timing of efforts to procure the declarant’s attendance. ... A proponent’s burden is to demonstrate a diligent and reasonable effort, not to do everything conceivable, to secure the witness’ presence.” (Citation omitted; internal quotation marks omitted.) State v. Wright, 107 Conn. App. 85, 90, 943 A.2d 1159, cert. denied, 287 Conn. 914, 950 A.2d 1291 (2008). “Because the court’s assessment of whether the actions of the state in attempting to find the witness properly could be characterized as having been undertaken with due diligence involve a ‘judgment call’ by the court, we conclude that the proper of standard of review ... is the abuse of discretion standard.” Id., 89.

The following additional facts are relevant to the issue of whether the state made sufficient attempts to locate Norton. On the second day of the defendant’s retrial, counsel for the state, outside the presence of the jury, informed the court that it had issued a subpoena for Norton and that she could not be found. Merritt J. D’Amico, an inspector with the office of the state’s attorney in New London, testified that on June 21, 2006, he served a subpoena on Norton, requiring her to report to the court on July 12, 2006, at 9:30 a.m. Norton did not appear on that date and did not contact D’Amico or his office on that date. D’Amico further testified regarding his attempts to meet with Norton subsequent to serving her with the subpoena. Specifically, he testified that he maintained contact with Norton after serving her and informed her in a telephone conversation that he would be in contact with her again closer to the defendant’s trial date.

On a subsequent date, D’Amico called Norton’s home and received a recorded message that the number was no longer in service. He then left numerous telephone messages on Norton’s cellular telephone, at varying hours of the day and evening, but she never contacted him. On the evening of Monday, July 10, 2006, D’Amico and Thomas Pederson, another inspector with the state’s attorney in New London, went to Norton’s residence. On that occasion, after no one answered the knock at the door, D’Amico left a business card in the door with a note requesting that Norton contact him as soon as possible. Norton did not contact D’Amico in response to the note. The following day, D’Amico again left several messages on Norton’s cellular telephone and returned to her house in the evening but was unsuccessful in contacting her. He observed that Norton’s vehicle was not in the parking lot. D’Amico testified that on July 13, 2006, the date of his testimony, he had called Norton’s cellular telephone and told her that she was needed in court on that day. He also went to Norton’s place of employment, and Norton’s boss confirmed that she had been trying to reach Norton as well but had not been successful.

Pederson testified that he was present when Norton was served with the subpoena. He further testified that he went to Norton’s residence on July 11 and 12, 2006, but was unable to locate Norton. On July 12, 2006, Pederson asked the Norwich police department to check Norton’s residence to determine if she was at the residence. The police did not see any sign of Norton or her vehicle.

On the basis of the foregoing evidence, the court granted the state’s request that a capias be issued for Norton’s failure to comply with the state’s subpoena. The defendant stated that Norton’s testimony was “not material at all” and “doesn’t have anything to do with the facts of this homicide.” On the fourth day of the defendant’s retrial, the state explained that further attempts had been made to locate Norton over the previous weekend and that they had been unsuccessful. The state requested that Norton’s testimony from the prior trial be admitted and read into the record, and the defendant objected. The court found that Norton was unavailable to testify at trial and that the defendant had an adequate opportunity to cross-examine her at the prior trial. The court, therefore, allowed the reading of Norton’s prior testimony into the record.

Our review of the record reveals that the state made a good faith, reasonable and diligent effort to locate Norton and that the court did not abuse its discretion in determining that she was unavailable. Because the court did not abuse its discretion in finding that Norton was unavailable, the defendant has not satisfied the third prong of Golding because he has not established that a constitutional violation clearly exists and clear ly deprived him of a fair trial.

II

The defendant next argues that the admission of Norton’s testimony violated his fifth amendment right to due process and sixth amendment right to confront his accusers. Specifically, the defendant argues that the court improperly admitted Norton’s previous testimony without addressing his argument that she may have engaged in posttestimonial misconduct that would have provided a basis to impeach her credibility had she been a witness at the second trial. The defendant further argues that his cross-examination of Norton at the first trial was unduly narrow in light of new evidence that was presented at the second trial, namely, the testimony of Thomas. We find the defendant’s arguments unpersuasive.

“Traditionally, for purposes of the confrontation clause, all hearsay statements were admissible [under Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980)] if (1) the declarant was unavailable to testify, and (2) the statement bore adequate indicia of reliability. ... [In Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)], the United States Supreme Court overruled Roberts to the extent that it applied to testimonial hearsay statements. ... In Crawford, the court concluded that the reliability standard set forth in the second prong of the Roberts test is too amorphous to prevent adequately the improper admission of core testimonial statements that the [confrontation [c]lause plainly meant to exclude. . . . The court held, therefore, that such testimonial hearsay statements may be admitted as evidence against an accused at a criminal trial only when (1) the declarant is unavailable to testify, and (2) the defendant has had a prior opportunity to cross-examine the declar-ant.” (Internal quotation marks omitted.) State v. Kirby, 280 Conn. 361, 379, 908 A.2d 506 (2006). Having concluded in part I that the court did not abuse its discretion in finding that Norton was unavailable, we now consider whether the defendant had a constitutionally adequate opportunity to cross-examine Norton at the first trial.

Before addressing this issue, we note that “[although Crawford expanded to all testimonial statements the constitutional rule that a defendant must be afforded the right of cross-examination, that case did not portend to alter the preexisting case law as to what that right entails. . . . As we have stated often, [t]he sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . However, [t]he [confrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . .

“Although it is within the trial court’s discretion to determine the extent of cross-examination . . . the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment. . . . The right of confrontation is preserved [however] if defense counsel is permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Citations omitted; internal quotation marks omitted.) State v. Estrella, 277 Conn. 458, 472-73, 893 A.2d 348 (2006). Because the determination of whether the defendant’s cross-examination of Norton was constitutionally adequate is a question of law, and because “any limitation on the impeachment of a key government witness is subject to the most rigorous appellate review . . . we scrutinize the testimony to make that determination.” (Citation omitted; internal quotation marks omitted.) Id., 474.

With these principles in mind, we first consider the defendant’s argument that the court improperly admitted Norton’s prior testimony without determining whether she had engaged in posttestimonial misconduct. According to the defendant, this case must be remanded for a hearing to determine whether Norton had engaged in any impeachable misconduct after she testified at the first trial, and, if so, whether such evidence should be admitted into evidence pursuant to § 4-3 of the Connecticut Code of Evidence. The defendant’s claim must fail, however, because there is no evidence or any proffer of evidence that Norton engaged in any impeachable misconduct after her testimony at the first trial.

In State v. Estrella, supra, 277 Conn. 458, our Supreme Court noted that “Crawford [v. Washington, supra, 541 U.S. 68] does not address whether evidence that did not exist at the time of the prior opportunity for cross-examination can somehow render that opportunity inadequate and therefore render the prior testimony inadmissible.” Id., 475. The court in Estrella assumed, without deciding, that “such evidence is relevant to the adequacy of the prior cross-examination” but concluded, nonetheless, that there was no new evidence that would have rendered the prior cross-examination inadequate. Id. We similarly conclude, in the present case, that there is no new evidence that would have changed the scope of cross-examination. The defendant merely speculates that because most of the state’s witnesses “have accumulated new fodder for cross-examination,” Norton may have had a subsequent felony conviction or convictions relating to veracity, and, therefore, the admission of her prior testimony violated his constitutional rights. As noted by our Supreme Court, however, “[w]e do not ordinarily remand for further fact-finding based on nothing but speculation”; State v. Cobb, 251 Conn. 285, 426, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); and we see no reason to do so in the present case. Accordingly, we decline to conclude that the defendant’s constitutional rights were violated by the failure of the court to inquire into the possibility that Norton may have engaged in posttestimonial misconduct.

The defendant further contends that he did not have a constitutionally adequate opportunity to cross-examine Norton at his first trial in light of Thomas’ testimony at the second trial concerning an important factual dispute. Specifically, in the testimony that was admitted, Norton testified that she was present at the Sports Bar on the night in question. She saw the victim at the bar that night, and he was “carefree, dancing around, joking, laughing.” There was nothing going on at the bar or in her conversations with the victim that night that caused her any alarm or concern. Norton left the bar when it closed; she did not observe any problems at that time. She made plans to meet the victim later that night at her house. According to the defendant, this testimony is inconsistent with Thomas’ testimony at the second trial that he told the defendant he was “having aproblem with someone in the bar” and that he “had a beef’ with the victim prior to seeing him on the night in question. The defendant argues that Norton’s testimony undermined the defendant’s theory that Thomas was the shooter, which the defendant has based on Thomas’ dispute with the victim. The defendant further contends that the admission of Norton’s prior testimony provided only a portion of what she would have said at the second trial, not her complete answers to the defendant’s questions concerning her observations of any dispute between the victim and Thomas. We find this claim unavailing.

Our review of the transcript reveals that the defendant had an adequate and full opportunity to cross-examine Norton and to address whether she was giving truthful testimony. Specifically, the defendant questioned Norton about her relationship with the victim, how much Norton had to drink on the night in question, and about claimed inconsistencies between her trial testimony and a statement she had given to the police. No restrictions were placed on the defendant’s ability to cross-examine Norton at the first trial. “Measuring the defendant’s ability to cross-examine [the witness] on matters affecting his reliability and credibility in order to comport with the constitutional standards embodied in the right to cross-examine ... we are satisfied that the defendant was provided the requisite procedural safeguard to the right of confrontation.” (Citation omitted.) State v. Estrella, supra, 277 Conn. 474-75.

We further conclude, as our Supreme Court did in State v. Estrella, supra, 277 Conn. 475, that there was no new evidence that would render the prior opportunity for cross-examination inadequate. Norton’s testimony at the first trial that there was nothing going on at the Sports Bar that caused her any alarm or concern is not inconsistent with Thomas’ testimony at the second trial that there were no problems inside the Sports Bar that night and that the problems began after he left the bar, which was when it closed. Norton testified that she left the bar when it closed so she would not have been present when the altercation took place in the parking lot later that night. We therefore conclude that the court properly admitted into evidence Norton’s prior sworn testimony from the defendant’s first trial. See id., 476-77.

The judgment is affirmed.

In this opinion the other judges concurred.

       Connecticut Code of Evidence § 8-6 provides in relevant part: “The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, provided (A) the issues in the former hearing are the same or substantially similar to those in the hearing in which the testimony is being offered, and (B) the party against whom the testimony is now offered had an opportunity to develop the testimony in the former hearing. ...”

       In State v. Golding, supra, 213 Conn. 233, our Supreme Court concluded that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40.

       The prosecutor stated: “I just want to state that the state has made further attempts to find Sarah Norton over the weekend. Those attempts were unsuccessful. The latest attempt was this morning, Groton town. He went up to her house, over the weekend. There were checks in the parking lot where she normally parks her cars. Her cars were nowhere to be seen. There are two registered to her.”

       Specifically, the court ruled: “All right. Under [State v. Estrella, 277 Conn. 458, 893 A.2d 348 (2006)], the Practice Book—the code—the Practice Book and the code, the court determines the witness is unavailable. The defense had the same lawyer, same circumstances.
      “The defense had an adequate opportunity to cross-examine the witness. This is no new subject matter—similar to the letter that’s in [State v. Estrella, supra, 277 Conn. 458]—that would affect the right of confrontation and cross-examination for the defense. I’ll allow reading of the testimony at the time that the state presents it and the state orders it. And your objection stands.”
      The adequacy of the defendant’s opportunity to cross-examine Norton will be discussed in part II.

       In so concluding, we note that in the defendant’s brief, he claims that the state presented no evidence concerning Norton’s unavailability. According to the defendant, the state’s explanation for Norton’s unavailability was limited to the prosecutor’s comments in court on July 17, 2006, that the state had made further attempts to locate Norton over the weekend but had been unsuccessful and that someone had gone to her residence that morning and that she was not there. The defendant does not mention the testimony of D’Amico or Pederson and the attempts that they made to locate Norton. When questioned about this omission during oral argument before this court, counsel for the defendant conceded that he was unaware of that testimony until he received the state’s brief, which cited to the testimony. The defendant, however, took no action to correct his brief to reflect the fact that there was, in fact, testimony on this very issue.

       Although the defendant refers to his fifth amendment right to due process and his sixth amendment right to confront his accusers, his analysis is limited to claimed violations of the sixth amendment. We therefore confine our analysis to a review of the defendant’s sixth amendment right of confrontation.

       Connecticut Code of Evidence § 4.3 provides in part that “[Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise . . . .”

       The defendant acknowledges that the record is unclear on this point but contends that the court should have addressed the issue once it was raised by the defendant.

       In objecting to the introduction of Norton’s testimony, counsel for the defendant argued that the state was “going to be using her testimony to basically counterbalance John Thomas that said they had a beef in the bar, to discuss [the defendant], this guy is giving me a hard time. But don’t worry, I’m strapping. She’s going to contradict all of that.
      “Had I known what Mr. Thomas was going to say at the first trial, maybe I would have been more alert, and objected to this. It would have been more relevant in this trial than the first trial. But I didn’t have a chance to cross-examine her on those issues.”

       Norton testified that they previously had lived together and then remained good friends.

       Thomas testified as follows:
      “Q. Then, when you saw [the victim] at the Sports Bar, did he stare you down?
      “A. No.
      “Q. Did you grill or stare at him?
      “A. No.
      “Q. Did you have any problems while in the bar with him?
      “A. No.
      “Q. Did there come a time—how about the defendant . . . did he have any problems with ... [the victim]?
      “A. No.
      “Q. And did there—was there anything that occurred in the bar that would make you think there would be trouble there?
      “A. No.”


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. MARCUS MOYE
    (AC 29894)
    Bishop, McLachlan and Borden, Js.
    Argued November 12, 2008
    officially released February 10, 2009

      Elizabeth M. Inkster, senior assistant public defender, for the appellant (defendant).

      Bruce R. Lockwood, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Marcus Moye, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a and possession of a pistol or revolver without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction and (2) the trial court improperly refused to charge the jury as he requested. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 3, 2003, at 8 p.m., Joshua Brown was fatally shot in the area of George and Day Streets in New Haven. While en route to the scene of the shooting, Officer Daniel Sacco observed a heavyset black male, wearing a white jersey, on a BMX bicycle, riding away from the scene. Once at the scene, Sacco observed the victim lying face down. Sacco quickly discerned that the victim had been shot in the chest. He recognized the victim as Brown, also known as “Doo Doo” Brown, who was associated with the “Tre Bloods,” a gang from the area. Sacco was aware that the “Tre Bloods” were feuding with “The Ville,” another local gang. Later, the medical examiner determined that the victim’s death was caused by a gunshot. While at the scene, Sacco questioned fifteen year old Kathy Booker, who informed him that at 8 p.m. she heard a gunshot and saw a heavyset black male, clean shaven, wearing a white jersey with possibly the number six on it, riding a bicycle away from the scene of the shooting. Sacco provided Booker’s description to the police dispatcher. After hearing the broadcast, Officer Dean Reynolds observed a man on a bike matching Sacco’s description. Reynolds chased the biker but lost him. Reynolds eventually found the suspect thirty minutes later, wearing different clothes. At trial, he confirmed the suspect’s identity as that of the defendant.

On August 5, 2003, Courtney Taft gave a statement to the police describing her encounter with the defendant on the night of the shooting. She stated that she was sitting on her porch with some friends when the defendant called her over to speak with him. The defendant told her that he had just shot “Doo Doo Brown.” He also informed Taft that he had a gun that needed to be buried. Taft, who knew the defendant, identified him from a photographic array and in court.

On August 10, 2003, the police questioned fourteen year old Marvin Gore about an attempted robbery of which he was the victim. Gore informed the police that on August 3, between 7 and 8 p.m., the defendant, wealing a blue scarf on his head and a black jersey with the number six on it, approached him on a bike, pulled a gun from his pocket and ordered him to “give me everything in your pockets.” After Gore responded that he had nothing, the defendant struck him in the head with the gun. The attempted robbery occurred four blocks from the scene of the shooting. At the time of the attempted robbery, Gore was wearing a red shirt, which the defendant interpreted to mean that Gore was associated with the “Tre Bloods” gang. Further, Gore was aware that the defendant was a member of “The Ville” gang. Gore identified the perpetrator as the defendant from a photographic array at the police station and again at trial.

Almost two years later, on June 21, 2005, the police spoke with Timothy Phelmetta regarding the shooting. Phelmetta informed the police that on the evening of August 3, 2003, he heard a gunshot and saw a heavyset male, possibly wearing a white jersey, on a bicycle riding away from the scene. Phelmetta recognized the biker as the defendant, with whom he had attended high school. He also identified the defendant from a photographic array and again at trial.

On October 23, 2006, the state charged the defendant with the murder of the victim in violation of § 53a-54a and carrying a pistol or revolver without a permit in violation of § 29-35. On November 20, 2006, the defendant was found guilty on both charges. On February 8, 2007, the court committed the defendant to the custody of the commissioner of correction for a total effective term of fifty years. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to identify him as the shooter because (1) there was no forensic evidence from which to determine the shooter’s identity and (2) many of the lay witnesses lacked credibility because they faced serious criminal charges. We are not persuaded.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . .

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . We do not sit as a [thirteenth] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Furthermore, “[i]n our review of the evidence to determine its sufficiency, we do not look at the evidence to see whether it supports the defendant’s innocence. . . . Instead, our focus is whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Fleming, 111 Conn. App. 337, 342-43, 958 A.2d 1271 (2008), cert. denied, 290 Conn. 903, 962 A.2d 794 (2009). With these principles in mind, we now turn to the defendant’s claims.

The defendant first argues that there was a lack of forensic evidence from which to determine the shooter’s identity. “Since direct and circumstantial evidence have equal probative value, however, the absence of forensic or scientific evidence does not make the evidence insufficient per se.” State v. Henning, 220 Conn. 417, 421, 599 A.2d 1065 (1991). Further, “in the absence of forensic evidence, we cannot usurp the role of the jury and discredit the testimony of the state’s witnesses as a matter of law.” State v. Jones, 234 Conn. 324, 333-34, 662 A.2d 1199 (1995). In this case, sufficient nonforensic evidence was presented to the jury to prove the defendant’s identity as the shooter on the basis of, inter alia, (1) Booker’s testimony that she saw someone fitting the defendant’s description riding a bike away from the scene of the incident, (2) Taft’s testimony that the defendant admitted to her that he had shot the victim and (3) Phelmetta’s testimony that he saw the defendant riding his bike away from the scene of the shooting shortly after Phelmetta heard gunshots. Additionally, Gore’s statement placed the defendant in the area of the shooting, on a bike with a gun, at about the time that the shooting had occurred. Taft, Phelmetta and Gore also were able positively to identify the defendant in court and from a photographic array. “Connecticut case law has previously recognized in-court identifications and identifications from fairly presented photographic arrays as sufficient evidence by themselves to allow the trier of fact to conclude that it was the defendant who committed the crimes charged.” State v. Morgan, 274 Conn. 790, 802, 877 A.2d 739 (2005).

The defendant next contends that with the exception of Booker, all the lay witnesses lacked credibility because they had pending legal charges. Our Supreme Court has found that it is the jury’s responsibility to determine the weight to be given to witness identifications. See id. “Furthermore, it is the jury’s role as the sole trier of the facts to weigh the conflicting evidence and to determine the credibility of witnesses. ... It is the right and duty of the jury to determine whether to accept or to reject the testimony of a witness . . . and what weight, if any, to lend to the testimony of a witness and the evidence presented at trial.” (Citations omitted; internal quotation marks omitted.) Id. Here, witness credibility was certainly fodder for the jury’s consideration. More importantly, it is not within this court’s province to revisit the jury’s credibility determinations. See State v. Northrop, 92 Conn. App. 525, 531, 885 A.2d 1270 (2005), cert. denied, 277 Conn. 905, 894 A.2d 988 (2006).

On the basis of our review of the foregoing testimony and our thorough review of the record, we conclude that the state presented sufficient evidence from which the jury reasonably could have found that it was the defendant who had shot the victim.

II

The defendant next claims that the court abused its discretion by refusing to charge as requested, and, as a result, the jury was instructed inadequately. We do not agree.

The following additional facts are relevant to the defendant’s claim. On November 20,2006, the defendant filed a request to charge regarding evidence of his prior misconduct. With respect to the issue of prior misconduct, the defendant requested that the judge charge the jury as follows:

“The [s]tate offered evidence through Marvin Gore that the [defendant attempted to rob him on Winthrop Avenue in New Haven sometime between the hours of 7:00 p.m. and 8:00 p.m. on August 3,2003. Said evidence was admitted solely to establish that the [defendant might have been in the area of the homicide on August 3, 2003 and that he was in possession of a bicycle and a gun at that time.

“It should be remembered in considering this evidence that Marvin Gore indicated that the [defendant was wearing a black shirt at the time of the alleged attempted robbery which contrasts with other descriptions of the homicide perpetrator who was described as wearing a white shirt.

“The evidence offered by the [sjtate of this prior act of misconduct by the [djefendant was not admitted to prove the bad character of the [djefendant or his propensity to commit criminal acts. This evidence was admitted solely to establish the identity of the person who committed the crime and the [djefendant’s possession of the means that might have been useful or necessary for the commission of the crimes charged.

“You may consider such evidence if you believe it and further that it logically, rationally and conclusively supports the issues for which it is being offered by the [sjtate, but only as it bears on the issues of the existence of the identity of the person who committed the crime and the [djefendant’s knowledge or possession of the means that might have been useful or necessary for the commission of the crimes charged.

“On the other hand, if you do not believe such evidence, or even if you do, if you find that it does not logically, rationally and conclusively support the issues for which it is being offered by the [sjtate, namely the identity of the person who committed the crime, and the [djefendant’s knowledge or possession of the means that might have been useful or necessary for the commission of the crimes charged then you may not consider that testimony for any purpose.

“You may not consider evidence of prior misconduct even for the limited purpose of attempting to prove the crimes charged in the information because it may predispose your mind uncritically to believe that the [defendant may be guilty of the offenses charged merely because of the alleged prior misconduct. For this reason, you may consider this evidence only on the issues of the identity of the person who committed the crime and the defendant’s knowledge or possession of the means that might have been useful or necessary for the commission of the crimes charged and for no other purpose.” (Emphasis added.)

At the charging conference, the court notified the defendant that it would give his request to charge but would omit the second and sixth paragraphs of the charge. The court’s instructions to the jury were a verbatim recitation of the defendant’s request to charge, except for the omission of paragraphs two and six. In sum, the court substantially complied with the defendant’s requested charge to the jury on the use of prior misconduct evidence, with the exception that the court did not comment on the discrepancy in the evidence regarding the color of the shirt.

“The primary purpose of the charge to the jury is to assist [it] in applying the law correctly to the facts which [it] find[s] to be established. ... [A] charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Although [a] request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given ... [a] refusal to charge in the exact words of a request . . . will not constitute error if the requested charge is given in substance. . . . Thus, when the substance of the requested instructions is fairly and substantially included in the trial court’s jury charge, the trial court may properly refuse to give such instructions.” (Internal quotation marks omitted.) State v. Sulser, 109 Conn. App. 852, 878, 953 A.2d 919, cert. denied, 289 Conn. 939, 959 A.2d 1006 (2008).

As noted, the only portions of the defendant’s requested charge that were not given by the court were comments on the evidence regarding the color of the perpetrator’s shirt. Within the charge to the jury, “[t]he extent to which a court should comment on the evidence is largely a matter within its sound discretion. . . . However, in some cases, where the issues are complicated, peculiar, or capable of differing conclusions, comment by the court is necessary.” (Citation omitted; internal quotation marks omitted.) Bushy v. Forster, 243 Conn. 596, 599, 706 A.2d 8, aff'd after remand, 50 Conn. App. 233, 718 A.2d 968 (1998). In the case at hand, the issues were straightforward and uncomplicated. The parties’ closing arguments addressed the discrepancies between the witnesses’ descriptions of the defendant’s shirt, and the court’s charge was sufficient to guide the jurors in evaluating all the evidence. We conclude, therefore, that the refusal by the court to include, in its charge, the statements requested by the defendant did not constitute an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.