author: BISHOP, J.

text:
    LORRAINE PARROTTA v. MICHAEL PARROTTA
    (AC 31085)
    Bishop, Gruendel and Harper, Js.

      Argued December 10, 2009
    officially released February 23, 2010

      Kimberly A. Knox, with whom were Kenneth J. Bartschi and, on the brief, Karen L. Dowd and Amy L. Greenberg, for the appellant (plaintiff).

      Samuel V. Schoonmaker IV, with whom was Wendy Dunne DiChristina, for the appellee (defendant).

      Michelle S. Cruz and Hakima Bey-Coon filed a brief for the office of the victim advocate as amicus curiae.
   Opinion

BISHOP, J.

In this marital dissolution case, the plaintiff, Lorraine Parrotta, appeals from the order of the trial court lifting, in part, the automatic orders that apply to all dissolution cases and allowing the defendant, Michael Parrotta, to expend $100,000 for attorney’s fees to defend himself in a criminal matter involving an alleged assault on the plaintiff. Because we conclude that the order in question is not an appeal-able final judgment, we dismiss the appeal.

The following procedural history is pertinent to our discussion. On December 3, 2008, the plaintiff filed a complaint seeking dissolution of her marriage to the defendant, a division of the marital property and debts, and orders regarding child support and custody as to the parties’ minor child. On April 3,2009, the defendant was arrested and charged with attempt to commit murder and assault in the first degree after he allegedly stabbed the plaintiff repeatedly. As noted, the defendant remains in the custody of the commissioner of correction pending trial.

On April 6, 2009, the plaintiff filed an application for an ex parte temporary injunction pendente lite, seeking an order prohibiting the defendant from withdrawing funds from brokerage accounts for fear that he would use those funds to post bond in the criminal cases. The court, Schofield, J., granted that motion ex parte on April 6, 2009.

On April 16, 2009, the defendant filed a motion for transfer, in which he sought a change of venue of this action to the criminal section of the Superior Court for the limited purpose of determining his rights to secure legal counsel and to prepare for his defense in the criminal proceedings. On April 29,2009, the court, Scho-field, J., heard argument on the defendant’s motion to transfer and, treating it as a motion for modification of the automatic orders, ordered the sum of $100,000 to be wired from a brokerage account in the defendant’s name directly to the account of his criminal defense attorney, to be used for legal fees and expert witness fees in conjunction with the pending criminal charges. The court also ordered that no portion of those funds could be used for the posting of the defendant’s bail or bond. Finally, the court indicated that the $100,000 sum would be considered a draw against the defendant’s share of the equitable distribution of property at the time of the final hearing in the dissolution action. This appeal followed.

Before examining the plaintiffs claims on appeal, we must first determine whether we have jurisdiction. It is axiomatic that the jurisdiction of this court is restricted to appeals from judgments that are final. General Statutes §§ 51-197a and 52-263; Practice Book § 61-1; see Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 793, 967 A.2d 1 (2009). Thus, as a general matter, “an interlocutory ruling may not be appealed pending the final disposition of a case.” Hopkins v. O’Connor, 282 Conn. 821, 827, 925 A.2d 1030 (2007). Our Supreme Court has, however, determined that certain interlocutory orders may be treated as final judgments for purposes of appeal. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id.

When the plaintiff filed this appeal, the court had not rendered judgment on her complaint for dissolution or the defendant’s cross complaint. Nor had the court assigned to either party any part of the estate of the other as the court is permitted to do, by statute, only at the time of the final hearing. We must, therefore, determine whether the court’s order modifying the automatic orders to give the defendant permission to expend funds in his own name, although interlocutory, is a final judgment for purposes of appeal. The plaintiff contends that there is an appealable final judgment pursuant to the second prong of Curdo. We are not persuaded.

“The second prong of the Curdo test focuses on the nature of the right involved. It requires the parties seeking to appeal to establish that the trial court’s order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [parties] irreparably harmed unless they may immediately appeal. . . . Thus, a bald assertion that [the appellant] will be irreparably harmed if appellate review is delayed until final adjudication ... is insufficient to make an otherwise interlocutory order a final judgment. One must make at least a colorable claim that some recognized statutory or constitutional right is at risk. ... In other words, the [appellant] must do more than show that the trial court’s decision threatens him with irreparable harm. The [appellant] must show that that decision threatens to abrogate a right that he or she then holds. . . . Moreover, when a statute vests the trial court with discretion to determine if a particular [party] is to be accorded a certain status, the [party] may not invoke the rights that attend the status as a basis for claiming that the court’s decision not to confer that status deprives the [party] of protections to which [it] ... is entitled. For an interlocutory order to be an appealable final judgment it must threaten the preservation of a right that the [party] already holds. The right itself must exist independently of the order from which the appeal is taken. Whe[n] a [discretionary] decision has the effect of not granting a particular right, that decision, even if erroneous, does not threaten the [party’s] already existing rights.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., 279 Conn. 220, 226-27, 901 A.2d 1164 (2006).

In support of her position, the plaintiff cites cases in which our Supreme Court has held that pendente lite orders in marital dissolution cases are final judgments. Indeed, our Supreme Court has made the broad assertion that “a ruling by a trial court regarding financial issues in a marital dissolution case—whether it be a pendente lite ruling, a ruling issued in conjunction with a final dissolution judgment or a decision regarding a postjudgment motion—is a final judgment for purposes of appeal.” Ahneman v. Ahneman, 243 Conn. 471, 479, 706 A.2d 960 (1998). In Ahneman, the court was confronted with a situation in which a party had filed an appeal from final judgment financial orders. While that appeal was pending, a party filed additional motions regarding financial issues. The trial court refused to respond to these motions. At issue in an amended appeal was whether the court’s refusal was a final order from which the party could take an appeal. The Supreme Court found that the court’s refusal to hear the party’s motions was tantamount to a denial of the motions. Thus, the court concluded that the “refusal” was a final order. Id., 480.

Although we acknowledge that our decisional law makes this a close question, we do not believe that either this court’s or the Supreme Court’s prior treatment of interlocutory financial orders in marital dissolution cases as final orders determines the issue at hand. We believe, however, that prior cases dealing with the question, generally, of the finality of interlocutory orders in marital dissolution cases guide our conclusion that the order at hand is not a final judgment.

In general, the jurisprudence finding finality in pen-dente lite orders rests on the notion that the orders under scrutiny have concluded a party’s rights with respect to the issue at hand because the court is not able, at the time of the final judgment, to provide any remedial relief in regard to the pendente lite orders. In Hiss v. Hiss, 135 Conn. 333, 336, 64 A.2d 173 (1949), the Supreme Court concluded that an interlocutory order requiring the husband to make pendente lite payments to the wife for the support of herself and her children was an appealable final judgment because the husband would have no right to be reimbursed even if the trial court ultimately rendered a judgment in his favor. The reasoning behind the immediate appealability of pen-dente lite financial orders related to alimony or child support is that such orders provide support during the pendency of an action but that any funds spent as a result of these orders are not subject to reimbursement, as they merge into the final dissolution judgment. Id. As a result, the rights of the parties to the funds are concluded so that further proceedings cannot affect them. Id. If such orders were not appealable prior to the entry of judgment, they could not be reviewed at all, with the result that no redress could be had for funds already expended. In other words, once a final judgment enters, the pendente lite orders cease to exist because their purpose has been extinguished at the time the dissolution judgment is entered. Sweeney v. Sweeney, 271 Conn. 193, 201, 856 A.2d 997 (2004); Connolly v. Connolly, 191 Conn. 468, 479-80, 464 A.2d 837 (1983).

The plaintiff claims, nevertheless, that the court’s order in this instance effectively determined her rights with respect to a portion of the defendant’s estate and that, because the defendant has been permitted to expend those funds, the funds are irretrievably lost. Our Supreme Court has stated that “where an order requires monetary payments that are irretrievable, so that there is no right of reimbursement . . . the order is immediately appealable” because it concludes the rights of the parties so that further proceedings cannot affect them. Goodson v. State, 228 Conn. 106, 113-14, 635 A.2d 285 (1993). In Goodson, the court held that the defendant could not recoup wages paid to the plaintiff as a result of a reinstatement order even if it ultimately prevailed on the merits of the underlying grievance proceedings, and, therefore, the order was final for the propose of taking an appeal. Id., 114.

In Pendiman Corp. v. White Oak Corp., 195 Conn. 393, 488 A.2d 449 (1985), our Supreme Court was asked to consider whether an interim award of attorney’s fees in a nonfamily civil action was an appealable final judgment. The court specifically noted that it “need not reach the disputed question whether a definitive award of attorney’s fees pendente lite in a proceeding other than a marital dissolution is so severable from the underlying litigation that an immediate appeal of such an interlocutory award is appropriate.” Id., 397. Instead, it concluded that the order was not a final judgment because it was “not a conclusive adjudication and did not irreversibly require payments” by the plaintiff corporation. Id. Further, the order did not “constitute a final award of a monetary sum definitively payable” by the plaintiff corporation. Id., 398.

Here, the plaintiffs claim to immediate appellate review fails because the ruling from which the plaintiff appeals does not involve a right that is presently held by the plaintiff and that will be irretrievably lost or irreparably harmed if it is not immediately reviewed. As noted, although the plaintiff has a claim against the defendant’s estate, she does not have a present legal right to the funds that are in the defendant’s name. Any right that the plaintiff may have in the defendant’s assets cannot be determined until the dissolution hearing. Further, unlike the typical pendente lite situation in which orders are not subject to review or retroactive modification at the time of dissolution, the court, in this instance, specifically stated as part of its order that the $100,000 would be taken into account at the time the court makes a final division of the marital assets. In other words, any moneys the defendant was permitted to expend as a retainer in the criminal case will still be considered a part of his estate for purposes of distribution.* Therefore, the circumstances at hand are sufficiently different from those in Ahneman, Hiss and Goodson so as to make the holdings in those cases inapposite to our conclusion.

Additionally, here, as in Pendiman Corp., the court’s order, by its very terms, was not a conclusive adjudication as it did not irreversibly conclude the plaintiffs interest in the defendant’s estate because it expressly contemplated that the $100,000 to which it gave the defendant access would nevertheless be considered as a portion of his estate for purposes of equitable distribution at the time of the dissolution hearing. Therefore, the court’s order did not so conclude the rights of the plaintiff that further proceedings could not affect them.

Finally, we are further persuaded that the court’s order did not constitute an appealable final judgment in light of the decisional law regarding temporary injunctions. We believe that the automatic orders in marital dissolution judgments are most akin to temporary injunctions on the basis that they represent a temporary restraint on the use of or alienation of one’s assets pending full adjudication in conjunction with a final hearing. “[I]n the absence of a statutory provision to the contrary, a denial or grant of a temporary injunction does not constitute a final judgment for purposes of appeal. . . . This is so because the purpose of a temporary injunction is to [maintain] the status quo while the rights of the parties are being determined. . . . Similarly, the denial of a temporary injunction is a determination that the status quo need not be maintained while the court determines the rights of the parties. By contrast, a permanent injunction effects a final determination of [those] rights.” (Citations omitted; internal quotation marks omitted.) Massachusetts Mutual Life Ins. Co. v. Blumenthal, 281 Conn. 805, 811, 917 A.2d 951 (2007).

As in the case of a temporaiy injunction, the purpose of the automatic orders in marital dissolution cases is simply to maintain the status quo while the action is pending. And, as a permanent injunction typically encompasses the relief sought or granted by the temporary injunction, a dissolution judgment similarly assigns, to one party or the other, the property that was subject to the injunctive effect of the automatic orders. The similarity between a temporary injunction in a civil action and automatic orders in a dissolution action can readily be contrasted with pendente lite alimony or child support orders, which are fashioned to meet the financial needs of the parties until the marriage is dissolved and which, because they are not subject to retroactive modification, are irretrievably beyond the remedial reach of the court at the final hearing.

On the basis of the foregoing, we conclude that the court’s order granting the defendant partial relief from the automatic orders did not constitute an appealable final judgment. As a consequence, we do not have subject matter jurisdiction to hear the plaintiffs appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       Practice Book § 25-5 (a) provides in relevant part: “The following automatic orders shall apply to both parties, with service of the automatic orders to be made with service of process of a complaint for dissolution of marriage . . .
      “(1) Neither party shall sell, transfer, encumber . . . conceal, assign, remove, or in any way dispose of, without the consent of the other party in writing, or an order of a judicial authority, any property, individually or jointly held by the parties, except in the usual course of business or for customary and usual household expenses or for reasonable attorney’s fees in connection with this action . . . .”

       The defendant was arrested on April 3, 2009, in docket number CR-09-0166567-T, in which he is charged with attempt to commit murder in violation of General Statutes § 53a-54a and assault in the first degree in violation of General Statutes § 53a-59 (a) (1). Both charges relate to an alleged assault by the defendant on the plaintiff in which he is alleged to have stabbed her several times. The defendant was subsequently arrested on April 7, 2009, in docket number CR-09-0166604-T, in which he is charged with violating a standing criminal restraining order in violation of General Statutes § 53a-223a and criminal possession of a weapon in violation of General Statutes § 53a-217. These charges, as well, relate to the defendant’s alleged conduct toward the plaintiff. In conjunction with these charges the defendant is presently incarcerated, held in lieu of posting bonds in the aggregate amount of $1.5 million.

       On appeal, the plaintiff claims that the court’s order was improper in that (1) it constituted a distribution of marital property that is permitted only at the time the marriage is dissolved pursuant to General Statutes § 46b-81 and (2) the court did not make any inquiry or finding as to the reasonableness of the amount sought by the defendant. Because we conclude that we do not have jurisdiction to hear this appeal, we do not reach these claims.

       The defendant subsequently filed a cross complaint seeking similar relief.

       In the absence of an objection by the defendant, the court, Malone, J., subsequently granted that injunction on May 15, 2009.

       Nor, to our knowledge, has this matter gone to final judgment since the filing of the appeal.

       General Statutes § 46b-81 (a) provides in relevant part: “At the time of entering a decree annulling or dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other. ...” Although the court order gave the defendant access to funds in his own name, part of his estate, it did not amount to a transfer from one spouse to another.

       In support of this conclusion, the Ahneman court made specific reference to other cases regarding a trial court’s ruling regarding allocation of a federal income tax dependent child exemption as part of a final judgment, a trial court’s denial of a post judgment motion to modify alimony and child support, an order for the payment of support pendente lite and a ruling on a motion for contempt. Ahneman v. Ahneman, supra, 243 Conn. 479. Thus, in making this broad statement, it is apparent that the court did not contemplate the present circumstance in which the court granted partial relief from the automatic orders.

       Furthermore, offsetting a pendente lite alimony or child support payment when fashioning financial orders at the time the marriage is ultimately dissolved would amount to a retroactive modification of those orders in contravention of General Statutes § 46b-86 (a). See General Statutes § 46b-86 (a) (“[n]o order for periodic payment of permanent alimony or support, may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50”).

       “[General Statutes] § 46b-81 gives the court broad power to redistribute the property of either or both parties at the time of entering a decree. This does not mean that the party had a legal ownership interest in the assets of the other spouse during the marriage and prior to the decree. Connecticut is not by any means a community property state nor is any automatic form of joint ownership created simply by the fact that the parties enter into a marriage.

        “Up until the time that a property distribution is ordered by the court pursuant to ... § 46b-81, the situation is governed by [General Statutes] § 46b-36. That statute explicitly provides that neither the husband nor the wife acquires by virtue of the marriage any right to or interest in any property held by the other before or acquired after the marriage.” A. Kutkin & K. Hogan, 7 Connecticut Practice Series: Family Law and Practice (1999) § 26.1, pp. 470-71.

       We are aware, from the record, that on October 8,2009, after the issuance of the order granting the defendant access to $100,000 in a brokerage account in his own name for payment of a legal retainer in the criminal matter, he executed a promissory note in a like amount payable to “the party to whom the court distributes this note.” Elsewhere in the recitals, this instrument is referred to as a “loan.” In determining that the court’s order granting partial relief from the automatic orders in this instance does not constitute a final judgment for appeal purposes, we specifically do not rely on the terms of this instrument, whose meaning and legal vitality are subject to determination by the court at the time of the marital dissolution judgment.

       The plaintiff argues that because the court could determine, at the time of judgment, that the plaintiff is entitled to 100 percent of the assets in the marital estate, which the parties have represented in filings with the trial court to be worth approximately $5 million, its order constitutes a final judgment regarding her rights to that sum simply because that sum is no longer available for distribution and it is unlikely that the defendant will have the wherewithal with which to reimburse her. This argument is based on the speculation that the court could feasibly award the plaintiff 100 percent of the parties’ joint assets and 100 percent of the defendant’s assets, while permitting the plaintiff to retain the assets presently in her own name. This argument presumes an exercise of discretion by the court and the theoretical determination of rights at the time of the marital dissolution hearing. It does not involve a presently existing right held by the plaintiff.


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CHANDRA BOZELKO
    (AC 29549)
    Beach, Alvord and Peters, Js.

      Argued September 25, 2009
    officially released February 23, 2010

      Alice Osedach, assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom were Paul O. Gaetano, supervisory assistant state’s attorney, and, on the brief, Kevin D. Lawlor, state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Chandra Bozelko, appeals from the judgments of conviction, rendered after a jury trial in four files on fourteen counts. In docket number CR-05-128445, the defendant was convicted of attempt to commit larceny in the first degree in violation of General Statutes §§ 53a-122 and 53a-49; identity theft in the first degree in violation of General Statutes § 53a-129b; attempt to commit illegal use of a credit card in violation of General Statutes §§ 53a-128d and 53a-49; and forgery in the third degree in violation of General Statutes § 53a-140. In docket number CR-05-128811, the defendant was convicted of larceny in the third degree in violation of General Statutes § 53a-124; identity theft in the third degree in violation of General Statutes § 53a-129d; illegal use of a credit card in violation of § 53a-128d; and forgery in the third degree in violation of § 53a-140. In docket number CR-05-129108, the defendant was convicted of attempt to commit larceny in the fifth degree in violation of General Statutes §§ 53a-125a and 53a-49; attempt to commit illegal use of a credit card in violation of § 53a-128d and 53a-49; and identity theft in the third degree in violation of § 53a-129d. In docket number CR-05-129107, the defendant was convicted of larceny in the fifth degree in violation of § 53a-125a; illegal use of a credit card in violation of § 53a-128d; and identity theft in the third degree in violation of § 53a-129d. The jury found the defendant not guilty on eight other counts. On appeal, the defendant asserts that the court improperly (1) denied her motion for a mistrial, claiming that events that transpired during the trial prejudiced the jury, (2) denied her motion to proceed pro se and (3) instructed the jury about reaching a unanimous verdict. Additionally, the defendant claims that her convictions of both identity theft and illegal use of a credit card violate her constitutional right to be free of double jeopardy. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. The defendant was employed by Kate’s Paperie, a paper products and gift store, between November 5, 2003, and January 24, 2004. Kate’s Paperie accepted major credit cards, and store employees had access to the signed credit card receipts, which included the customer’s name and full credit card account number.

In December, 2003, Pamela Williams purchased items from Kate’s Paperie in Greenwich. She paid for these items by using her American Express credit card. Shortly thereafter, Williams examined her American Express monthly statement and discovered that approximately $3000 had been charged to her card by a Greenwich boutique without her knowledge or authorization. American Express investigated the charges and determined that the charges were fraudulent. Williams’ credit card was deactivated and a new card using a new account number was issued to her. Using this new card, Williams made other purchases from Kate’s Paperie. In March, 2005, several purchases were charged to Williams’ new American Express account without her knowledge or authorization. These purchases were made online from Blissout, Inc., Amazon.com, Inc., Sephora USA, Inc., and The Finish Line, Inc.

On January 20, 2005, Paul Gerst, a Federal Express employee, attempted to deliver two packages to 133 Wild Rose Drive in Orange. The packages required the addressee to sign a receipt indicating that she had received them in order for Gerst to leave them. The homeowner at 133 Wild Rose Drive was not home, so Gerst did not leave the packages. As Gerst was getting back into his truck, the defendant came out of a neighboring house. This house was numbered 183 Wild Rose Drive. The defendant informed Gerst that the packages were misaddressed. She told him that they should have gone to her home at 183 Wild Rose Drive, not 133 Wild Rose Drive. The defendant then signed for the packages using the name “S. Bosis.”

Prior to January, 2006, John Hillgen lived at 133 Wild Rose Drive. On several occasions, packages that did not belong to him were delivered to his home. Each time Hillgen informed the sender that they had misaddressed the packages and then returned them to the sender.

Gerst was assigned to deliver another package to 183 Wild Rose Drive on March 17, 2005. This package was addressed to Pamela Williams. Williams did not reside at 183 Wild Rose Drive. Gerst was instructed by his supervisor to deliver the package to the town of Orange police department as part of an ongoing investigation. Robert Cole, a town of Orange police investigator, called the telephone number listed on the package and discovered that it belonged to the defendant.

Five days later, Gerst was assigned another parcel to be delivered to 189 Wild Rose Drive. When Gerst delivered the package to the resident of 189 Wild Rose Drive, she informed him that the package did not belong to her but, rather, belonged to 183 Wild Rose Drive, the house next door. This package was addressed to the defendant.

In December, 2004, Jonathan Boies and his wife, Jodie Boies, were joint users of an American Express account. On December 23 or 24, 2004, Jodie Boies used her American Express credit card at Kate’s Paperie. On January 27,2005, Randy Vines, a fraud investigator from Nieman Marcus, the parent company of Bergdorf Goodman, telephoned Jonathan Boies regarding possible fraudulent purchases, in the amount of $2252, charged to his American Express credit card and shipped to 133 Wild Rose Drive in Orange. The Boies’ American Express account was used again at the end of January, 2005, to purchase approximately $43,000 worth of merchandise from Bergdorf Goodman. The customer who ordered these purchases requested that the items be mailed to Debra Boies at 133 Wild Rose Drive in Orange, and used the defendant’s telephone number. Jonathan Boies did not have any knowledge of these purchases, did not know of any Debra Boies and did not authorize anyone to use his credit card.

The United States Postal Service and town of Orange police officers conducted a videotaped controlled delivery to the defendant, in which Patrick Bernardo, a United States postal inspector, purported to deliver merchandise from Bergdorf Goodman to 183 Wild Rose Drive, the address of the defendant. Bernardo asked the defendant: “[A]re you Debra Boies?” The defendant responded that she was and proceeded to sign “Debra Boies” on four different sections of the United States postal parcel slips. The defendant was then taken into custody.

I

We first turn to the defendant’s argument that the court erred in denying her motion for a mistrial on the basis of jury partiality. We disagree.

The additional facts relating to the defendant’s claim are as follows. On October 4, 2007, the presentation of evidence ended. The following morning, the court was informed that at least three jurors had received telephone calls regarding the case at home on the previous evening. The court instructed those three jurors to leave the room and inquired of the remaining three regular jurors and two alternate jurors whether they had received telephone calls as well. One additional juror indicated that he received a telephone call as well. The court then proceeded to summon and to inquire of the four affected jurors individually.

Juror R testified that at about 8:06 p.m. he received a telephone call from a young male asking whether he was a juror. R responded by asking: “Who wants to know? What’s going on? What do you mean? I can’t talk about it.” The caller repeated several times, “[t]he girl is innocent.” He also stated, “[y]ou’re sending the wrong person to jail.” The juror responded to the caller, “I’m not supposed to be talking [about] this to you,” and asked, “[h]ow did you get my number?” The caller stated that he couldn’t tell R how he got his number but that he “had friends in the court system.” R also asked how the caller knew that the defendant was not guilty. The caller answered that he “stayed over to check the records” and that “[h]er boss lied.” The caller also pléaded with R, “[d]on’t put her in jail, she’s innocent . . . her boss lied.” R’s caller identification system showed the telephone call came from Kate’s Paperie.

The court then inquired as to R’s ability to be impartial after receiving this telephone call. R stated that the telephone call did not influence his ability to sit as a fair juror and that he would follow the court’s instructions to decide the case solely based on the evidence presented to the court.

Juror D similarly testified that someone had called her home at 8:04 p.m. the previous night. D’s caller identification system indicated that the telephone call was from Kate’s Paperie. D’s mother answered the telephone and said, “what juror?” This prompted D to pick up the telephone. D asked the male voice who he was, and he responded, “she did not work here.” D replied by saying, “I don’t need to talk to you,” and disconnected the call. D testified that she informed the marshal about the call when she arrived at the courthouse and that she had not discussed the matter with anyone else. D stated that the call would not influence her and that she could still be a fair juror.

Juror W informed the court that he received a telephone call at about 8:15 p.m. the previous evening. W’s wife answered the call, and the male caller asked if she was on the jury. W’s wife responded that she was not on the jury, and the caller asked who was on the jury. W overheard this conversation and picked up another telephone to listen in on the telephone call. W’s wife asked how the caller had found their number, to which he responded that he had gotten the number from the court. She then told the caller, “[njobody’s on a . . . jury here” and disconnected the telephone. The court questioned W as to whether the telephone call would affect his ability to be a fair and impartial juror. W stated that he could remain impartial and fair and that his deliberations would not be affected by extraneous information.

Juror K stated that she received a telephone call at 8:18 p.m. the previous evening. A male caller asked her: “Are you on the jury?” K then hung up the telephone. The court questioned K as to whether she could remain fair and impartial. K stated that she could and that she had not been compromised or affected by what had happened the previous night.

The defendant first moved that D, one of the female jurors, be removed. The court had asked each juror if he or she had discussed the telephone calls with any other juror. Juror D stated that she had not spoken of this matter with anyone. Jurors W and K, however, stated that while sequestered by the court prior to being questioned about the telephone calls, one of the female jurors remarked to the other three jurors, “oh, you got a call, too.” Both W and K stated that nothing else was discussed regarding the calls. The court found that “in weighing their reaction, [it felt] fairly comfortable that this would be a harmless error,” as “[t]hey did not discuss the nature of the calls.”

The defendant then moved for a mistrial, arguing that she could not be given a fair trial. The court denied the defendant’s motion for a mistrial on the ground that the jurors had stated that they would remain fair and impartial. The court concluded that each juror had taken an oath to remain fair and impartial and that it firmly believed that the jurors would abide by their oath.

We turn to the standard of review that controls our consideration of the defendant’s claim that the court erred in denying her motion for a mistrial. “In [its] review of the denial of a motion for mistrial, [our Supreme Court has] recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Anderson, 255 Conn. 425, 435, 773 A.2d 287 (2001).

Despite each juror’s personal assurances to the court that he or she could remain impartial, the defendant argues that any direct contact between a juror and a third party creates a presumption of partiality. The defendant further argues that the state has the burden of proving that it was harmless beyond a reasonable doubt for the court not to have excused the jurors who had been contacted at home. Finally, the defendant argues that jurors R, D and W should have been dismissed for juror misconduct because they did not immediately disconnect the telephone call but, rather, engaged the caller or listened to further discourse with the caller. We are not persuaded.

“Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution. . . . [T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. . . . The modem jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given [it] in the adversary arena after proper instructions on the law by the court. . . . Consideration [by the jury] of extrinsic evidence is presumptively prejudicial because it implicates the defendant’s constitutional right to a fair trial before an impartial jury.” (Internal quotation marks omitted.) State v. Abraham, 84 Conn. App. 551, 555-56, 854 A.2d 89, cert. denied, 271 Conn. 938, 861 A.2d 514 (2004).

“[N]ot every incident of juror misconduct requires a new trial. . . . [D]ue process seeks to assure a defendant of a fair trial, not a perfect one. . . . [T]he constitution does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence which might theoretically affect their vote. . . . The question is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial. . . . The defendant has been prejudiced if the misbehavior is such to make it probable that the juror’s mind was influenced by it so as to render him or her an unfair and prejudicial juror. . . . We have previously held that, in cases where the trial court is directly implicated in juror misconduct, the state bears the burden of proving that misconduct was harmless error. . . . Where, however, the trial court was in no way responsible for the juror misconduct . . . we have repeatedly held that a defendant who offers proof of juror misconduct bears the burden of proving that actual prejudice resulted from that misconduct.” (Internal quotation marks omitted.) State v. Walker, 80 Conn. App. 542, 556-57, 835 A.2d 1058 (2003), cert. denied, 268 Conn. 902, 845 A.2d 406 (2004).

Applying those well settled legal principles to the present case, we conclude that the court did not abuse its discretion in denying the defendant’s motion for a mistrial. Each juror assured the court that the telephone call to his or her residence would not affect his or her ability to remain impartial and fair. They all stated that they could follow the court’s instructions that they not consider any evidence not presented before the trial court when deliberating. The court’s factual findings, that the telephone calls had not prejudiced each juror, find support in the record. The court based its findings largely on the jurors’ representations that the telephone calls did not affect their ability to remain impartial. The fact of the jurors’ impartiality was reinforced by their finding the defendant guilty of some charges and not guilty of other charges.

The defendant asserts that because the court did not recognize that jurors R, D and W engaged in misconduct, it could not properly determine whether the jurors could have remained fair and impartial. We do not agree. “The court’s function with regard to the matter required it to assess prejudice. On the basis of the representations of each juror, the court had to determine whether the misbehavior [was] such to make it probable that the juror’s mind was influenced by it so as to render him or her an unfair and prejudicial juror. . . . Because it is in the best position to evaluate the assurances by the jurors, the trial court’s credibility assessment is entitled to substantial weight. . . . The court’s analysis in this case was inherently fact specific. When findings are not clearly erroneous, this court will decline to substitute its judgment for that of the finder of fact.” (Citation omitted; internal quotation marks omitted.) State v. Walker, supra, 80 Conn. App. 558.

There may be cases in which a juror’s affirmation of his or her ability to be fair does not overcome the inherent prejudice of a particular communication. See Aillon v. State, 173 Conn. 334, 339-40, 377 A.2d 1087 (1977) (ex parte conversations between court and juror presumptively prejudicial). This case, in which the contact was not initiated by a juror, was quite brief and, at least on the surface, favored the defendant, is not such a case. We conclude that the denial of the defendant’s motion for a mistrial was not an abuse of the court’s discretion.

II

The defendant next claims that the court improperly denied her request to represent herself in violation of her rights under the sixth amendment to the federal constitution. Specifically, the defendant asserts that after the jury had been selected, but prior to the jury’s being sworn, she sought to waive the right to counsel and to represent herself but that the court summarily and improperly denied her request. The defendant also maintains that the court improperly failed to conduct an inquiry into her request pursuant to Practice Book § 44-3. We conclude that the court exercised its discretion properly and consistently with our Supreme Court’s subsequent decision in State v. Flanagan, 293 Conn. 406, 433, 978 A.2d 64 (2009).

The following additional facts and procedural history are necessary for our resolution of the defendant’s claim. On May 12, 2005, the defendant was arraigned in this case. At a hearing to assign the case for trial, held on May 30, 2007, the defendant’s counsel, Yito Castignoli, notified the court that the defendant was rejecting the state’s plea offer and intended to go forward with a trial. Castignoli also advised the court that the defendant told him that she wanted to a hire a new attorney. After noting that the defendant’s cases were very old, the court continued the case until June 13, 2007, and informed the defendant that if she intended to hire a new attorney, she should have her new attorney present at that hearing. On June 13, 2007, Castignoli, still appearing for the defendant, informed the court that the defendant had hired new counsel and requested that the court continue the cases again until new counsel had appeared. The court expressed its reluctance to do so in light of the fact that it had already provided the defendant with a two week period to retain new counsel and that the cases against her were “the oldest cases on the jury list almost by far.” Despite its reluctance, however, the court granted the defendant additional time to provide an appearance of her new counsel. The defendant was given until June 21, 2007, the date set for the commencement of trial, to secure the appearance of new counsel, but she was instructed that no further continuances would be permitted.

On June 21, 2007, the defendant appeared in court with her new counsel, Angelica Papastavros. Papas-tavros informed the court that she had not had sufficient time to prepare for trial and asked for another continuance. The court thereafter conducted a scheduling conference with the parties in chambers to discuss rescheduling the cases for trial. The cases were again rescheduled.

On October 2, 2007, after jury selection, the cases were about to begin the evidential phase. That morning, defense counsel stated that she had received from the defendant a fax terminating her representation. Defense counsel informed the court that the defendant informed her “that she’s willing—or she’s prepared to go forward pro se, if need be.” Defense counsel then stated that she did not believe that it was appropriate for the defendant to represent herself.

The state opposed the defendant’s request to represent herself. The state reasoned that defendant’s trial counsel was the third attorney to represent her in these matters and that her request to proceed pro se on the day evidence was scheduled to begin was just a tactic used to delay the trial.

The court then questioned the defendant in the following colloquy:

“The Court: . . . [J]ust so I am clear, you were represented by attorney [Robert] Casale at one point in time in this matter?
“[The Defendant]: Yes, Your Honor.
“The Court: And you were—you basically dismissed him from representing you, is that correct?
“[The Defendant]: No, that’s not true, Your Honor.
“The Court: But, obviously, he’s no longer representing you?
“[The Defendant]: Correct.
“The Court: And you retained attorney Vito Castignoli to represent you?
“[The Defendant]: No, I did not. Attorney Castignoli was retained by my conservator at the time.
“The Court: But, as far as an appearance, so what the court works with is an appearance of an attorney, that both attorney Casale and attorney Castignoli were representing you by appearance?
“[The Defendant]: It is correct that both attorney Casale and attorney Vito Castignoli had appearances in these files in the past.
“The Court: All right. And, now, it’s my understanding you later retained attorney Papastavros.
“[The Defendant]: I retained attorney Papastavros of my own accord.
“The Court: And you, obviously, were satisfied with her representation through the jury selection process, is that correct?
“[The Defendant]: That’s correct.
“The Court: That, over—if my math is correct—we had, if not over eighty potential jurors or around eighty potential jurors in the course of three days. And you were present when motions were argued last Wednesday in Derby—
“[The Defendant]: I was.
“The Court: With attorney Papastavros? Now, the representations of attorney Papastavros are that you are no longer satisfied with her representation, is that correct?
“[The Defendant]: That is correct.
“The Court: Well, I think it’s within—I’m sure it’s within my authority to basically reject your actions. I think I’ve just named . . . three of the most qualified criminal defense attorneys in the New Haven, Milford area that you, at some point in time, said you were not satisfied with and no longer wanted their services. I am concerned with the fact that we have already spent three full days and then a half day on this matter. And here it is at the commencement of a trial when we’ve had jurors come in—come back. The expense the state has had to absorb in getting witnesses in and putting their case together, to have you come in on the beginning of the first day of evidence in saying, I am not satisfied anymore with my attorney, I feel that this is questionable, I think, because there have been other delays in this matter. And I think the state has been more than accommodating; the court has been more than accommodating with you on these matters throughout the last few years. And it is pretty close to one of the oldest cases in the Ansonia-Milford judicial district. So, I think the interests of justice are best served by going forward with the case today. And I’m not going to allow attorney Papastavros to be released. We have to go forward. We have a jury here. The state is ready to put on evidence. And I will move the case forward today.”

In a later articulation of its decision in response to an inquiry from this court, the trial court stated that its reasons for denying the defendant’s motion were that (1) the defendant had not expressed a dissatisfaction with her trial counsel prior to the date evidence was scheduled to commence, (2) the defendant had exhibited a pattern of dismissing her attorneys on the eve of trial even though her attorneys were very qualified and experienced criminal defense attorneys, (3) this matter was one of the oldest on the Milford docket and (4) the defendant was facing at least ten felony charges and numerous misdemeanor charges.

“Both the federal constitution and our state constitution afford a criminal defendant the right to [forgo] the assistance of counsel and to choose instead to represent himself or herself at trial. As a matter of federal constitutional law, the right to self-representation is premised on the structure of the Sixth Amendment, as well as in the English and colonial jurisprudence from which the Amendment emerged. Faretta v. California, 422 U.S. 806, 818, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); see also McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984); cf. Gideon v. Wainwright, 372 U.S. 335, [342] 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) ([making sixth amendment right to counsel applicable to states through due process clause of the fourteenth amendment]). The Connecticut constitution is more explicit, stating directly that [i]n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel .... Conn. Const., art I, § 8. We repeatedly have interpreted this language to establish an independent state constitutional guarantee of the right to self-representation. See State v. Townsend, 211 Conn. 215, 558 A.2d 669 (1989) .... State v. Day, 233 Conn. 813, 820, 661 A.2d 539 (1995). Although [w]e harbor no illusions that a defendant’s decision to waive counsel and [to] proceed pro se generally will lead to anything other than disastrous consequences . . . values informing our constitutional structure teach that although [a defendant] may conduct his own defense ultimately to his own detriment, his choice must be honored out of that respect for the individual which is the lifeblood of the law. Illinois v. Allen, [397 U.S. 337, 350, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970)] (Brennan, J., concurring).” (Emphasis in original; internal quotation marks omitted.) State v. Jones, 281 Conn. 613, 646-47, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007).

A defendant’s right to represent himself or herself, after a clear and unequivocal request to do so, is not unlimited. In Faretta, the United States Supreme Court identified three grounds for denying a defendant her right to self-representation: “(1) [the defendant] makes the request in [an] untimely fashion such that granting it would disrupt the proceedings; [Faretta v. California, supra, 422 U.S.] 807; (2) the defendant engages in serious obstructionist misconduct; id., 834 n.46; and (3) the defendant has not knowingly and intelligently waived his right to counsel. Id., 835; see 2 W. LaFave & J. Israel, Criminal Procedure (1984) § 11.5 (d), pp. 47-49.” (Internal quotation marks omitted.) State v. Townsend, supra, 211 Conn. 221 n.4.

In accordance with those limitations, our Supreme Court recently held that “when a defendant clearly and unequivocally has invoked his right to self-representation after the trial has begun, the trial court must consider: (1) the defendant’s reasons for the self-representation request; (2) the quality of the defendant’s counsel; and (3) the defendant’s prior proclivity to substitute counsel. If, after a thorough consideration of these factors, the trial court determines, in its discretion, that the balance weighs in favor of the defendant’s interest in self-representation, the court must then proceed to canvass the defendant in accordance with Practice Book § 44-3 to ensure that the defendant’s choice to proceed pro se has been made in a knowing and intelligent fashion. If, on the other hand, the court determines, on the basis of those criteria, that the potential disruption of the proceedings already in progress outweighs the defendant’s interest in self-representation, then the court should deny the defendant’s request and need not engage in a § 44-3 canvass.” (Emphasis added.) State v. Flanagan, supra, 293 Conn. 433.

After a trial has begun, it is within the trial court’s discretion to determine whether the defendant’s interest in her right to represent herself outweighs the potential disruption to the trial of the case. In this case, the court’s decision to proceed with existing counsel was not an abuse of discretion.

In the present case, the court did not have the benefit of our Supreme Court’s subsequent decision in Flanagan, delineating a balancing test for evaluating a defendant’s request to proceed pro se after the commencement of trial. Nonetheless, the court considered the three Flanagan factors to determine whether the interest in representing herself was genuine and outweighed the potential for further delay. The court’s colloquy clearly demonstrates its findings that (1) the defendant’s reasons for requesting to proceed pro se were “questionable,” as she had not expressed any displeasure with her trial counsel prior to the date evidence was to begin, (2) her previous attorneys, including the trial counsel at issue, were “three of the most qualified criminal defense attorneys in the New Haven, Milford area,” and (3) the defendant had shown a previous pattern of dismissing these qualified attorneys on the eve of trial, resulting in further delay of the trial of her case. The court then weighed these factors against the possible disruption that would occur if her request was granted. The parties had already spent three and one-half days choosing a jury. That jury was present on that day to begin hearing the case. The state had expended money to have its witnesses present, some of whom had come from different states, and the case was quite old.

The defendant suggests that no delay would have resulted from self-representation. The court, however, was not bound to believe that assertion. The court clearly believed that granting the defendant’s request would result in a further delay, and the defendant did not specifically state that if she were permitted to dismiss her counsel and to represent herself, no further delay would occur. In fact, her attorney stated that she did not think that it would be appropriate for the defendant to represent herself, at least without standby counsel. In light of these considerations, the court determined that “the interests of justice are best served by going forward with the case [that day]” and denied the defendant’s request. Accordingly, we do not find that the court abused its discretion in denying the defendant’s request to represent herself.

Ill

The defendant also claims that the court improperly coerced the jury to arrive at a unanimous verdict. We disagree.

The defendant concedes that her claim was not preserved because she did not file a written request to charge or take an exception to the court’s instructions. See State v. Fabricatore, 281 Conn. 469, 473 n.6, 915 A.2d 872 (2007) (party may preserve for appeal claim of instructional error by submitting written request to charge or by taking exception to charge). The defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Golding holds 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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id. “The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.” (Internal quotation marks omitted.) State v. Fabricatore, supra, 477.

The first two prongs of Golding are satisfied in the present case. The record is adequate for review and the defendant’s claim is of constitutional magnitude because it involves her fundamental right to have her case decided by a jury. Accordingly, we consider whether the alleged constitutional violation clearly existed and clearly deprived the defendant of a fair trial.

“A challenge to the validity of jury instructions presents a question of law over which this court has plenary review.” (Internal quotation marks omitted.) Mann v. Regan, 108 Conn. App. 566, 576, 948 A.2d 1075 (2008). “It is well settled that jury instructions are to be reviewed in their entirety. . . . When the challenge to a jury instruction is of a constitutional magnitude, the standard of review is whether it is reasonably possible that the jury [was] misled. ... In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the juiy is not to be critically dissected for the purpose of discovering possible inaccuracies of statement .... Individual instructions also are not to be judged in artificial isolation .... Instead, [t]he test to be applied ... is whether the charge ... as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Makee R., 117 Conn. App. 191, 198, 978 A.2d 549, cert. granted on other grounds, 294 Conn. 912, 983 A.2d 275 (2009).

The defendant directs our attention to the court’s instruction and claims that she was denied her “fundamental constitutional rights to due process and a fair trial and a unanimous verdict free of coercion.” Specifically, she argues that the court coerced the jury into reaching a verdict by improperly instructing the jury: “You must, therefore, make every reasonable effort to come to a verdict. You must listen to what the other jurors say. You must not hesitate to reconsider your own options as reasonable people. You should ultimately be able to cometo an agreement upon a verdict.” According to the defendant, this instruction pressured the jury into reaching an unanimous verdict and undermined the integrity of its deliberation.

Viewing the charge as a whole, we conclude that the court’s instruction did not pressure the jury into reaching a unanimous verdict. The state refers to State v. Peary, 176 Conn. 170, 183 n.8, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979), in which our Supreme Court upheld a jury instruction that stated: “You must not hesitate to reconsider your own opinions. ... As reasonable people, you should ultimately be able to come to some agreement upon a verdict.” The defendant responds that the validity of the Peary instruction is questionable based upon our Supreme Court’s decision in State v. O’Neil, 261 Conn. 49, 64, 801 A.2d 730 (2002), in which the court modified the antideadlock instruction, known as the Chip Smith instruction, to more “appropriately [balance] the systemic interest in a unanimous verdict and the defendant’s right to have each and every juror vote his or her conscience irrespective of whether such vote results in a hung jury.” Id., 76. We need not discuss the effect that O’Neil had on Peary, because the court’s instructions satisfied the O’Neil requirements. The court’s instruction did balance the system’s interest in a unanimous verdict with the defendant’s right to have jurors vote their conscience. Although the court first stated that “[y]ou must not hesitate to reconsider your own options as reasonable people. You should ultimately be able to come to an agreement upon a verdict,” it followed that instruction by stating that “it is your individual duty to make up your own mind and to decide this case upon the basis of your own individual judgment and your conscience.” These instructions considered together reflect the balance required by O’Neil. Accordingly, we conclude that the court’s instructions did not mislead the jury.

IV

The defendant’s final claim is that her convictions of the identity theft charges under §§ 53a-129b and 53a-129d and of the illegal use of a credit card charges under § 53a-128d for a single course of conduct, stemming from illegal use of the victims’ credit cards, violated her protection against double jeopardy. The defendant was convicted of one count of identity theft in the first degree, in violation of § 53a-129b; three counts of identity theft in the third degree, in violation of § 53a-129d; two counts of attempt to commit illegal use of a credit card and two counts of illegal use of a credit card, in violation of § 53a-128d. The defendant now argues that she was punished twice, under both § 53a-129a and § 53a-128d, for a single transaction in violation of her constitutional right not to be placed in jeopardy twice. We disagree.

The defendant did not preserve her claim at trial and now seeks review under State v. Golding, supra, 213 Conn. 239-40. Because the record is adequate and because a double jeopardy claim is of constitutional magnitude; State v. Chicano, 216 Conn. 699, 704-705, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); we review the defendant’s claim. “A defendant may obtain review of a double jeopardy claim, even if it is unpreserved, if he has received two punishments for two crimes, which he claims were one crime, arising from the same transaction and prosecuted at one trial .... Because the claim presents an issue of law, our review is plenary.” (Citations omitted.)States. Crudup, 81 Conn. App. 248, 252, 838 A.2d 1053, cert. denied, 268 Conn. 913, 845 A.2d 415 (2004).

“In determining whether a defendant has been placed in double jeopardy under the multiple punishments prong, we apply a two step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Alvaro F., 291 Conn. 1, 6, 966 A.2d 712, cert. denied, 558 U.S. 882, 130 S. Ct. 200, 175 L. Ed. 2d 140 (2009). “On appeal, the defendant bears the burden of proving that the prosecutions are for the same offense in law and fact.” (Internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 361, 796 A.2d 1118 (2002).

“The traditional approach to analyzing whether two offenses constitute the same offense was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Internal quotation marks omitted.) State v. Jones, 98 Conn. App. 695, 702-703, 911 A.2d 353 (2006), cert. denied, 281 Conn. 916, 917 A.2d 1000 (2007). It is undisputed that both the identity theft charge and the illegal use of a credit card charge arose out of the same act or transaction. The identity theft charge required the state to prove that the defendant intentionally obtained the personal identifying information of another person and used that information to obtain or attempt to obtain goods or services without the consent of the cardholder. This statute punishes defined acts, in this case, the acts of obtaining the credit card number and of using that credit card number, without the cardholder’s permission. Identity theft in the first degree requires that the state additionally prove that the value of the goods obtained exceeds $10,000. By contrast, the illegal use of a credit card charge requires the state to prove that the defendant, intending to defraud the issuer of the credit card or merchant providing goods and services, obtained goods or services by representing that she was the holder of the credit card without the consent of the cardholder. This statute punishes the act of defrauding the merchant by representing that the defendant is the cardholder. It is apparent that each charge required proof of a fact or facts that the other did not: identity theft requires that the defendant obtain the personal identity information of another person, and illegal use of a credit card does not; and illegal use of a credit card requires that the defendant intend to defraud the issuer of the credit card or a merchant, and identity theft does not.

The defendant claims that identity theft in the circumstances of this case is a lesser offense included within the crime of illegal use of a credit card. “ [I]f two offenses stand in the relationship of greater and lesser included offense, [however] then [t]he greater offense is . . . by definition the same for purposes of double jeopardy as any lesser offense included in it. . . . If it is possible to commit the greater offense in the manner described in the information without having first committed the lesser offense, then the lesser is not an included offense.” (Citation omitted; internal quotation marks omitted.) State v. Licari, 115 Conn. App. 633, 651, 974 A.2d 46, cert. denied, 293 Conn. 916, 979 A.2d 492 (2009). Because the commission of illegal use of a credit card as charged did not require the state to prove that the defendant intentionally obtained the credit card number of another person without the cardholder’s consent, the charge of identity theft is not a lesser offense included within the crime of the illegal use of a credit card charge. Thus, the defendant’s final claim fails under Golding’s third prong.

The judgments are affirmed.

In this opinion the other judges concurred.

       In docket number CR-01-129104, the defendant was found not guilty of attempt to commit larceny in the fourth degree in violation of General Statutes §§ 53a-125 and 53a-49; attempt to commit illegal use of a credit card in violation of §§ 53a-128d and 53a-49; larceny in the sixth degree in violation of General Statutes § 53a-125b; illegal use of a credit card in violation of § 53a-128d; and identity theft in the third degree in violation of § 53a-129d. In docket number CR-05-129102, the jury found the defendant not guilty of attempt to commit larceny in the fourth degree in violation of §§ 53a-125 and 53a-49; attempt to commit illegal use of a credit card in violation of §§ 53a-128d and 53a-49; and identity theft in the third degree in violation of § 53a-129d.

       Any reference to individual jurors will be made by use of their initials so as to protect their legitimate privacy interests. See, e.g., State v. Reynolds, 264 Conn. 1, 116 n.109, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).

       It is clear from the context of R’s conversation with the caller that R was not attempting to discuss further the merits of the caller’s assertions that the defendant was not guilty. Rather, R was trying to gather information to assist the court in investigating the caller’s identity, and he insisted to the caller that he could not discuss the merits of the case. Cf. State v. Andrews, 29 Conn. 100, 104 (1860) (juror participated in conversation with another person in jury pool about defendant’s attempted commission of similar offense in another jurisdiction). The court in this case could have construed R’s inquiry into the caller’s basis for his information to be an effort to discover more about the caller’s identity.

       On the facts of this case, the term “juror misconduct” is somewhat misleading. The extrajudicial contact was not initiated by the jurors. The claim is that several of the jurors should have terminated the communications earlier. The preferred behavior is more easily identified in hindsight than in the moment, especially in view of the jurors’ being caught unaware by the telephone calls.

       Our Supreme Court “generally [has] interpreted the state and federal constitutions as providing essentially equivalent protections with respect to a defendant’s right to self-representation.” State v. Shashaty, 251 Conn. 768, 780, 742 A.2d 786 (1999), cert. denied, 529 U.S. 1094, 120 S. Ct. 1734, 146 L. Ed. 2d 653 (2000). Although the defendant in her brief makes reference to the right of self-representation explicitly stated in article first, § 8, of our state constitution, the defendant did not brief separately a claim under our state constitution or argue that she was entitled to greater rights thereunder. The appellate courts of this state consistently limit their review to federal constitutional claims, when the state constitutional claims are not accompanied by a separate and sufficient analysis. State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992).

       A review of the transcript would suggest that the request perhaps was not as clear and unequivocal as required by State v. Flanagan, supra, 293 Conn. 412. Because the parties do not contest whether the request was clear and unequivocal, we will proceed as if it were a clear and unequivocal request.

       Trial commences, for this purpose, at voir dire. See State v. Gethers, 197 Conn. 369, 375-76, 497 A.2d 408 (1985) (“voir dire under Connecticut law [is] an integral part of the criminal trial and a critical stage of the proceedings” [internal quotation marks omitted]); see also State v. Cole, 8 Conn. App. 545, 551-52, 513 A.2d 752 (1986) (for purposes of Practice Book §§ 623 and 624 [now §§ 36-17 and 36-18], criminal trial begins with voir dire of prospective jurors); State v. Green, 38 Conn. App. 868, 874, 663 A.2d 1085 (1995) (with regard to defendant’s right to a speedy trial, criminal trial begins with commencement of voir dire).

       The representation of counsel that the defendant “was willing—or she’s prepared to go forward pro se, if need be,” is not precisely the same as a representation that the defendant would proceed without any delay or disruption and that none would occur during trial. The circumstances, of course, would be different had trial not begun.

       Section 53a-129b provides that when one commits identity theft as defined in § 53a-129a and obtains more than $10,000, one commits a class B felony.

       General Statutes § 53a-129a (a) provides that a person commits identify theft “when [a] person intentionally obtains personal identifying information of another person without the authorization of such other person and uses that information to obtain or attempt to obtain money, credit, goods, services, property or medical information in the name of such other person without the consent of such other person.”

       General Statutes § 53a-128d provides in relevant part: “Any person who, with intent to defraud the issuer, a participating party, or a person providing money, goods, services or anything else of value, or any other person . . . (2) obtains money, goods, services or anything else of value by representing without the consent of the cardholder that he is the holder of a specified card or by representing that he is the holder of a card and such card has not in fact been issued [commits illegal use of a credit card] . . .


author: FLYNN, C. J.

text:
    LENNARD TOCCALINE v. COMMISSIONER OF CORRECTION
    (AC 30377)
    Flynn, C. J., and DiPentima and Stoughton, Js.
    Argued December 10, 2009
    officially released February 23, 2010

      Joseph Visone, special public defender, for the appellant (petitioner).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Patricia M. Froeh-lich, state’s attorney, and Jo Anne Sulik, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, C. J.

In this “habeas on a habeas,” the petitioner, Lennard Toccaline, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) concluded that the petitioner had failed to prove that his prior habeas counsel was ineffective and (2) denied the petitioner a commission to depose the victim. We affirm the judgment of the habeas court.

In the underlying criminal matter, the state charged the petitioner in a two part information. In the first part of the information, the state charged the petitioner with one count of sexual assault in the first degree, two counts of sexual assault in the fourth degree and three counts of risk of injury to a child. In the second part of the information, the state charged the petitioner with being a persistent dangerous felony offender. The jury found the petitioner guilty of one count each of sexual assault in the first degree and sexual assault in the fourth degree, and three counts of risk of injuiy to a child. Following a trial to the court on the second part of the information, the court found the petitioner guilty of being a persistent dangerous felony offender on the basis of his 1982 conviction of sexual assault in the first degree. The court then sentenced the petitioner to forty years incarceration, execution suspended after twenty-five years, with ten years of probation. Our Supreme Court upheld the conviction on direct appeal. See State v. Toccaline, 258 Conn. 542, 783 A.2d 450 (2001).

Following the unsuccessful appeal of his conviction, the petitioner brought his first petition for a writ of habeas corpus, claiming actual innocence and that both his criminal trial counsel and his appellate counsel in his direct appeal provided ineffective assistance. The court, Hon. Richard M. Rittenband, judge trial referee, granted the petition on the ground that both trial and appellate counsel were ineffective, entitling the petitioner to a new trial. Toccaline v. Commissioner of Correction, 80 Conn. App. 792, 797, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S. Ct. 301, 160 L. Ed. 2d 90 (2004). The respondent, the commissioner of correction, appealed from that judgment, and this court reversed Judge Rittenband’s decision and remanded the case with direction to render judgment dismissing the petition. Id., 820. The petitioner thereafter brought another petition for a writ of habeas corpus, claiming that his prior habeas counsel was ineffective. Following a two day habeas trial, the court, Schuman, J., rendered judgment denying the petition. It then granted the petitioner’s request for certification to appeal. This appeal followed.

On appeal, the petitioner claims that the court improperly concluded that he had failed to prove that his prior habeas counsel was ineffective and that the court acted improperly in denying him a commission to depose the victim in the underlying criminal matter. We will consider each claim in turn.

“The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review. . . .

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... As enunciated in Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), our Supreme Court] has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied. ... [A] reviewing court can find against a petitioner on either ground, whichever is easier.” (Citation omitted; internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 291 Conn. 830, 834-35, 970 A.2d 721 (2009).

I

The petitioner first claims that the court improperly concluded that he had failed to prove that his prior habeas counsel had provided ineffective assistance. He argues that his prior habeas counsel was ineffective because he failed to challenge the effectiveness of the petitioner’s trial counsel for failing to move for a new trial on the basis of newly discovered postverdict alibi evidence. The respondent argues that the court properly rejected this claim on the ground that trial counsel could not have been ineffective for failing to file a motion for a new trial on the basis of newly discovered postverdict evidence because the trial court has no authority to hear such a motion at the time of the criminal trial. We agree with the respondent.

As we recently explained in State v. Gonzalez, 106 Conn. App. 238, 260-61, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008), “the trial court lack[s] the authority to consider [a] defendant’s [postverdict] motion for a new trial on the basis of newly discovered evidence. It is well established that to obtain a new trial on the ground of newly discovered evidence, a defendant must bring a petition under Practice Book § 42-55 .... Practice Book § 42-55 provides that [a] request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with General Statutes § 52-270. ... A petition for a new trial properly is instituted by a writ and complaint served on the adverse party; although such an action is collateral to the action in which a new trial is sought, it is by its nature a distinct proceeding. ... [A] different standard of review applies in these two separate procedures for seeking a new trial. To obtain a new trial through a [Practice Book § 42-55] petition, a defendant must overcome a strict standard including a requirement that the newly discovered evidence be likely to produce a different result in a new trial.” (Internal quotation marks omitted.)

The petitioner argues that his trial counsel should have moved for a new trial on the basis of newly discovered postverdict alibi evidence and that his prior habeas counsel was ineffective for failing to raise this argument in the petitioner’s previous habeas petition. He further argues that the habeas court improperly rejected this claim. In considering the petitioner’s claim, the habeas court explained that at the time of a criminal trial, “a motion for a new trial [is] not a proper pleading” because a claim of this nature must be brought via a petition for a new trial. The petitioner argues that the court’s distinction between the filing of a motion for a new trial and the filing of a petition for a new trial exalts form over substance because “[t]he name you put on the pleading is irrelevant.” Accordingly, he argues, that the court improperly rejected the claim. We disagree.

Although the petitioner generally is correct in arguing that the name one places on a pleading “is irrelevant,” it is not truly the name of the pleading that is relevant or irrelevant here; rather, it would be the procedure employed that would divest the court of the authority to consider the pleading. “[Recently, we reiterated the proper method to request a new trial on the basis of newly discovered evidence. There is a significant difference between Practice Book [§§ 42-53, 42-54 and 42-55]. Practice Book [§ 42-53] is concerned with motions for a new trial based on errors committed during the trial. . . . On the other hand, [§ 42-55] provides: A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with [General Statutes § 52-270]. . . . Practice Book § 42-53 provides for the granting of a motion for a new trial in the interests of justice, for constitutional error or for other materially injurious error. A motion for a new trial under Practice Book [§ 42-53] is limited to trial errors, and cannot be based upon newly discovered evidence. . . . The defendant must bring a petition under [§ 42-55] if he wishes to seek a new trial based upon newly discovered evidence. ... A petition for a new trial is instituted properly by a writ and complaint served on the adverse party; although such an action is collateral to the action in which a new trial is sought, it is by its nature a distinct proceeding. . . . Simply put, the distinction between a petition and a motion is not one of mere nomenclature.” (Citations omitted; internal quotation marks omitted.) State v. Gonzalez, supra, 106 Conn. App. 261-62.

On the basis of this clear precedent, we conclude that the habeas court properly rejected the petitioner’s claim that his prior habeas counsel was ineffective for failing to raise a claim that his trial counsel was ineffective for failing to file a motion for a new trial during the criminal proceedings.

II

The petitioner next claims that the habeas court improperly denied his request for a commission to depose the victim. He argues that at his prior habeas trial, he had produced credible evidence that “neither he nor the victim . . . were living in the house where the assaults were claimed to have taken place” at the time the victim claimed that she was assaulted and that when the victim’s aunt and mother were called to testify at the prior habeas proceedings, they changed their stories and said the assaults occurred one year earlier. He argues that because of this testimony, his prior habeas counsel should have requested a continuance so that he could have investigated further and that counsel was ineffective for not doing so. He further argues that the court abused its discretion in not permitting him to depose the victim during this habeas proceeding to see whether she would change her story. The respondent argues that the court properly exercised its discretion in denying the petitioner’s request. We agree with the respondent.

Practice Book § 23-39 provides: “(a) Upon leave of the judicial authority, the testimony of any person may be taken by deposition if the testimony will be required at an evidentiary hearing and it appears: (1) the testimony may not be available at the required evidentiary hearing because of physical or mental illness or infirmity of the witness; or (2) the witness resides out of this state and cannot be compelled to attend and give testimony; or (3) the witness may otherwise be unavailable to testify at the required evidentiary hearing, (b) The admissibility of deposition testimony shall be governed by the rules of evidence.”

In this case, the petitioner filed a motion with the habeas court seeking permission to depose the victim in order to prove his claim of ineffective assistance of his prior habeas counsel. He argued that his counsel should have requested a continuance after the victim’s family testified that the date of the assault may have been one year earlier than that charged. He then argued that he needed the deposition to establish the prejudice prong under Strickland. The court initially denied the motion without prejudice, thereby allowing the petitioner to renew the motion at the time of trial if he made “a sufficient preliminary showing of deficient performance so as to justify consideration of the prejudice prong.” After hearing further argument from the petitioner at trial, the court concluded that the petitioner had failed to prove that his counsel had provided deficient performance and, therefore, that proof of the prejudice prong was irrelevant. Accordingly, the court ruled that the victim’s deposition was not required at the evidentiary hearing, and it denied the petitioner’s motion. The court also explained additional reasons for its denial. It stated that the petitioner had admitted that he had no idea what the victim would say and that he made an inadequate offer of proof, and, additionally, it noted the importance of the need for finality of convictions and its concern in having the victim have to relive an upsetting or traumatic incident.

On appeal, the petitioner argues that the court abused its discretion in denying him a commission to depose the victim, but he does not challenge the court’s conclusion that he failed to prove that his prior habeas counsel rendered deficient performance in not requesting a continuance to investigate further after the victim’s family testified that the assaults of the victim occurred one year earlier than the dates for which the petitioner had been charged and convicted. In light of the court’s unchallenged conclusion that the petitioner did not demonstrate deficient performance by his prior habeas counsel, we cannot conclude that the court improperly denied his motion for a commission to depose the victim in order to establish prejudice.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner also had alleged a claim of actual innocence. The court dismissed that claim on the ground of res judicata. That dismissal is not challenged on appeal.

       The habeas court also found that this claim was related to the petitioner’s claim of actual innocence. The court explained: “Unlike the [other claims related to his prior habeas counsel’s] ineffectiveness, this claim does not allege that [his prior habeas counsel] was ineffective in prosecuting [the petitioner’s trial attorney’s] ineffectiveness. Nonetheless, because an ineffective assistance of habeas counsel petition necessarily attacks counsel’s performance in affirmatively proving a cause of action—unlike an ineffectiveness assistance claim attacking criminal trial counsel, which attacks his role in a defensive posture—an ineffectiveness habeas counsel claim must relate to some specific count, cause of action, or other claim. In this case, the only habeas claim to which this allegation can relate is the actual innocence claim that [previous habeas counsel] alleged.” See also footnote 1 of this opinion.


author: PER CURIAM.

text:
    JOSEPH B. MARION’S APPEAL FROM PROBATE
    (AC 30874)
    Flynn, C. J., and Gmendel and Stoughton, Js.
    Submitted on briefs December 10, 2009
    officially released February 23, 2010

      Joseph B. Marion, pro se, the appellant (plaintiff), filed a brief.
   Opinion

PER CURIAM.

This case concerns an appeal from the judgment of the Probate Court for the district of Putnam, which was dismissed for failure to prosecute with reasonable diligence. The pro se plaintiff, Joseph B. Marion, appeals from the judgment of the Superior Court, arguing that the court abused its discretion in denying his motion to open the judgment of dismissal. We affirm the judgment of the Superior Court.

The relevant facts are as follows. In October, 2003, the plaintiff filed with the Probate Court a motion to appoint an administrator for the estate of Lawrence J. Marion, Sr., who died on October 31, 2001. That motion was predicated on his claim of entitlement to certain funds that, he alleged, the decedent and certain defendants wrongfully had withheld. The Probate Court denied that motion on May 19, 2004.

On November 8, 2004, the plaintiff appealed from that judgment to the Superior Court. Years later, on August 13, 2007, the court issued an order that “if the case is not concluded by [December 31, 2007], then it will be dismissed, unless there is a contest with any defendant pending.” Due to subsequent noncompliance with that order, the court dismissed the plaintiffs appeal. The court provided notice of that judgment on July 1, 2008. The plaintiff thereafter filed a motion to open the judgment of dismissal on December 12, 2008. By memorandum of decision filed February 5, 2009, the court denied that motion in light of the plaintiffs untimely filing thereof, and this appeal followed.

Although the plaintiffs brief asserts four distinct claims, the only one properly before us is whether the court abused its discretion in denying his motion to open the judgment. As we previously have explained, “[i]t is well established in our jurisprudence that [w]here an appeal has been taken from the denial of a motion to open, but the appeal period has run with respect to the underlying judgment, we have refused to entertain issues relating to the merits of the underlying case and have limited our consideration to whether the denial of the motion to open was proper. . . . When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to op en the judgment and not the propriety of the merits of the underlying judgment. . . . This is so because otherwise the same issues that could have been resolved if timely raised would nevertheless be resolved, which would, in effect, extend the time to appeal.” (Internal quotation marks omitted.) Langewisch v. New England Residential Services, 113 Conn. App. 290, 293, 966 A.2d 318 (2009). The plaintiffs failure to file his motion to open the judgment within twenty days of the notice of judgment precludes review of his other claims in this appeal.

Confined to the question of whether the court properly denied the plaintiffs motion to open, we first note the applicable standard of review. “A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 169-70, 612 A.2d 1153 (1992).

Applying those principles, we cannot say that the court abused its discretion in the present case. Under Connecticut law, “[u]nless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed.” General Statutes § 52-212a; see also Practice Book § 17-4. Our Supreme Court has construed § 52-212a as “a limitation on the trial court’s general authority to grant relief from a judgment . . . .” Kim v. Mag-notta, 249 Conn. 94, 102, 733 A.2d 809 (1999). That statute “operates as a constraint, not on the trial court’s jurisdictional authority, but on its substantive authority to adjudicate the merits of the case before it.” Id., 104. Because the plaintiffs motion to open was filed more than five months after notice of the court’s judgment issued, the court had little choice but to deny the motion. As such, we cannot conclude that the court’s determination reflected an abuse of discretion.

The judgment is affirmed.

       Named as defendants in the plaintiffs action were Marjorie F. Marion, Lawrence J. Marion, Jr., Robert P. Marion, John P. Marion, Francis E. Marion, Margaret L. Marion, and William E. Marion, as well as the Putnam Probate Court.

       Oral argument on this appeal was scheduled for December 10, 2009. On that date, the plaintiff did not appear. We therefore consider the matter on the basis of the record and briefs before us.