author: PER CURIAM.

text:
    MARCUS GREGORY v. COMMISSIONER OF CORRECTION
    (AC 28860)
    DiPentima, Beach and Robinson, Js.
    Argued October 10
    officially released December 2, 2008

      Rosemarie T. Weber, special public defender, for the appellant (petitioner).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Jo Anne Sulik, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Marcus Gregory, appeals following the denial of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion by denying his petition for certification to appeal, (2) improperly found that trial counsel was not ineffective with respect to his cross-examination of a state’s witness, (3) improperly found that trial counsel was not ineffective for not using an expert witness and (4) improperly found that trial and appellate counsel were not ineffective for failing to address instances of prosecutorial impropriety. We conclude that the court properly denied the petition for certification to appeal and, accordingly, dismiss the petitioner’s appeal.

The jury found the petitioner guilty of various criminal offenses. See State v. Gregory, 56 Conn. App. 47, 49, 741 A.2 986 (1999), cert. denied, 252 Conn. 929, 746 A.2d 790 (2000). The petitioner received a total effective sentence of ninety years incarceration. The convictions were affirmed on direct appeal. See id.

In his amended petition for a writ of habeas corpus, the petitioner set forth four counts: ineffective assistance of trial counsel, attorney David Egan; ineffective assistance of appellate counsel, attorney Norman A. Pattis; actual innocence; and prosecutorial impropriety.* * In January, 2007, the habeais court heard evidence and, on April 23, 2007, issued a memorandum of decision denying the petition. The court subsequently denied the petition for certification to appeal on May 10, 2007. The petitioner then filed the present appeal.

We now set forth the applicable standard of review. “In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas coipus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different. White v. Commissioner of Correction, [58 Conn. App. 169, 170, 752 A.2d 1159 (2000)], citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) . . . .” (Internal quotation marks omitted.) Faust v. Commissioner of Correction, 85 Conn. App. 719, 721-22, 858 A.2d 853, cert. denied, 272 Conn. 909, 863 A.2d 701 (2004).

On appeal, the petitioner claims that Egan provided ineffective assistance of counsel with respect to his cross-examination of a certain witness. Specifically, the petitioner argues that Egan should have questioned Edward Wooldridge, a state police trooper, about discrepancies in his initial description of the suspect he was pursuing and Wooldridge’s comment that he was unsure if the petitioner was in fact the “right suspect.” The habeas court found that during Egan’s cross-examination, Wooldridge conceded that the petitioner’s appearance varied from his initial description. Wooldridge further acknowledged in his testimony that he was not sure that the petitioner was the person he had been pursuing. Finally, Wooldridge noted that he had lost sight of the suspect for a period of time.

The court found “no support for the claim that Egan was ineffective” with respect to his questioning of Wooldridge and therefore did not address the prejudice prong of Strickland. It noted that any additional cross-examination regarding discrepancies between the initial description of the suspect and the petitioner’s actual appearance merely would have been cumulative and that the jurors “had tangible evidence of Wooldridge’s mistaken identification for their consideration.”

The petitioner next claims that Egan provided ineffective assistance of counsel with respect to his failure to call a dog handling expert. Specifically, he argues that Egan should have used an expert to testify as to dog tracking procedures and whether the dog should have tracked to the petitioner and identified him, rather than just tracked to the site where the petitioner had been found by the police. Robert Novia, a Bridgeport police officer, and police dog Timmy had tracked a scent from the driver’s seat of the motor vehicle operated by the fleeing suspect to a couch in the alley where the petitioner had been hiding. Novia testified at the criminal trial that he terminated the track after learning that the petitioner had been found hiding behind this couch. Timmy did not track to the location where the petitioner was being held by the police.

The habeas court found that Egan had used the fact that Timmy had not tracked to the petitioner as a matter of trial strategy and emphasized this fact during his cross-examination of Novia. Furthermore, the expert witness called at the habeas trial by the petitioner never testified that Novia’s actions violated standard procedure or in any way undermined the reliability of the track. Accordingly, the court found that the petitioner failed to establish that Egan’s performance was deficient.

The petitioner’s final claim is that both Egan and Pattis failed to address pervasive prosecutorial impropriety. The habeas court considered and rejected this claim as to Egan. Specifically, it found that the petitioner failed to sustain his burden as to both of the Strickland prongs. With respect to the claim against Pattis, the court found that he exercised sound appellate strategy in raising only the issues that he thought would be successful and not raising a claim of prosecutorial impropriety that he did not believe would lead to a reversal of the petitioner’s conviction. The court ultimately concluded, with respect to the action of Pattis, that the petitioner had failed to sustain his burden of proof with respect to both Strickland prongs.

After carefully reviewing the record and briefs, we agree with the habeas court’s thoughtful and thorough memorandum of decision. We are not convinced that the issues presented in this appeal are debatable among jurists of reason, that a court could resolve them in a different manner or that the questions raised deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, supra, 230 Conn. 616. Consequently, we conclude that the petitioner failed to establish that the court abused its discretion in denying the petition for certification to appeal. See, e.g., Coleman v. Commissioner of Correction, 108 Conn. App. 836, 838, 949 A.2d 536, cert. denied, 289 Conn. 913, 957 A.2d 876 (2008).

The appeal is dismissed.

       In State v. Fauci, 282 Conn. 23, 917 A.2d 978 (2007), our Supreme Court concluded that the term “prosecutorial impropriety” is more appropriate than the term “prosecutorial misconduct,” Id., 26 n.2. Although the parties have briefed the petitioner’s claim using the nomenclature of “prosecutorial misconduct,” we have used the term “prosecutorial impropriety” in our discussion of this claim. See State v. Smith, 110 Conn. App. 70, 72 n.1, 954 A.2d 202 (2008).

       Specifically, the petitioner was convicted of conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a-92 (a) (2) (B) and 53a-48, kidnapping in the first degree in violation of § 53a-92 (a) (2) (B), conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (2) and 53a-48, burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (2) and 53a-8, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-48, aiding robbery in the first degree in violation of §§ 53a-134 (a) (4) and 53a-8, and larceny in the third degree in violation of General Statutes § 53a-124 (a) (1).

       At the start of the habeas trial, the court dismissed the count alleging prosecutorial impropriety on the basis of procedural default. The court also rejected the petitioner’s claim of actual innocence, and neither issue has been appealed.

       We note the different principles that apply to the review of Pattis’ actions as appellate counsel. “The first part of the Strickland analysis requires the petitioner to establish that appellate counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments ... in a verbal mound made up of strong and weak contentions. . . . Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” (Internal quotation marks omitted.) DaEria v. Commissioner of Correction, 107 Conn. App. 539, 542, 946 A.2d 249, cert. denied, 289 Conn. 911, 957 A.2d 877 (2008).
      Finally, we note that our Supreme Court recently reexamined the determination of the prejudice prong of Strickland as applied to appellate counsel. See Small v. Commissioner of Correction, 286 Conn. 707, 724, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008). In Small, our Supreme Court stated: “[The petitioner] must show a reasonable probability that, but for his counsel’s [error], he would have prevailed on his appeal.” (Internal quotation marks omitted.) Id., 720.


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    NICOLA PERUGINI v. KENNETH M. DEVINO
    (AC 29183)
    DiPentima, Lavine and Dupont, Js.

      Argued September 15
    officially released December 2, 2008

      Frederick W. Krug, for the appellants (defendants).

      Robert L. Fisher, Jr., for the appellee (plaintiff).
   Opinion

DiPENTIMA, J.

The defendants, Kenneth M. Devino and One Mattoon Road, LLC, appeal from the judgment of the trial court clarifying its initial judgment rendered in favor of the plaintiff, Nicola Perugini. On appeal, the defendants claim that the court improperly (1) opened and modified its initial judgment more than four months after the entry of that judgment and (2) issued an injunction that was overbroad. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history provide the necessary background for the resolution of the defendants’ appeal. The plaintiff owns a parcel of property located in Waterbury. Falls Avenue, a public highway, lies on the property’s western boundary. Its southern boundary, Mattoon Road, is owned solely by One Mattoon Road, LLC. The plaintiffs deed granted “a perpetual right-of-way in common with others to use Mattoon Road for a distance of 175 feet from Falls Avenue.” The driveway to the plaintiffs house connects to this express right-of-way and was described by the court as the first driveway.

There is a commercial building located on the easterly portion of the plaintiffs property. Access to this building is by way of a driveway that connects to Mattoon Road beyond and further east of the express right-of-way and was identified by the court as the second driveway. There was no contract between the parties regarding the plaintiffs use of Mattoon Road to the second driveway. At some point, the parties began discussing the plaintiffs use of Mattoon Road to access the second driveway, including the possibility of a license agreement. In May, 2005, the plaintiff was presented with the options of either signing a licensing agreement or closing the second driveway. In August, 2005, the defendants placed a series of large concrete blocks along Mattoon Road blocking the entrance to the second driveway, closing off access to the commercial building.

On September 6, 2005, the plaintiff commenced an action, alleging that he had used Mattoon Road to access the second driveway for more than fifteen years in a manner that was open, visible, continuous, uninterrupted and under a claim of right. Accordingly, the plaintiff claimed that he had acquired a legal right and title to the use of Mattoon Road to access the second driveway and that the defendants wrongfully had obstructed his use. The court issued a memorandum of decision on August 31, 2006, and rendered judgment in favor of the plaintiff. Specifically, it stated: “Therefore, judgment shall enter for the plaintiff by an order confirming that the plaintiff has acquired a prescriptive easement over and through the second driveway out onto Mattoon Road and an injunction ordering the removal of the concrete blocks preventing access to the second driveway or in any way obstructing with the right-of-way from the second driveway to Mattoon Road.”

On September 26, 2006, the plaintiff filed a postjudgment motion for contempt, alleging that the defendants had failed to remove the concrete blocks. The plaintiff, on January 3, 2007, subsequently filed a motion for clarification of the court’s judgment. In an amended motion to clarify, filed on January 8, 2007, the plaintiff alleged that the defendants had not removed the blocks but merely stacked three of the blocks on top of three other blocks.

On July 26, 2007, the court issued a memorandum of decision with respect to the plaintiffs motion to clarify.* * The court found that both parties had misinterpreted its judgment. With respect to the defendants, the court stated that they “misinterpreted the court’s decision by only removing three blocks and then placing them on top of existing blocks.” The court then stated that the prescriptive easement applied only to the second driveway and parking areas but did not extend to the gravel and grass area portions that abutted Mattoon Road.

Prior to the court’s initial decision, the blocks had been placed on the boundary line between the plaintiffs property and Mattoon Road, running east to west. Following that decision, the defendants had moved the westernmost blocks and stacked them on the easternmost blocks. They also had not moved the center blocks. In the second memorandum of the decision, the court ordered that the center blocks be removed from the property and that the westernmost blocks could not be double stacked and that they be removed from the property as well. The decision did not require the defendants to move the easternmost blocks.

On August 6, 2007, the defendants, citing Practice Book § 11-11, filed a motion to reargue the court’s decision with respect to the plaintiffs motion to clarify. They claimed, inter alia, that the court lacked jurisdiction to enter orders requiring the removal of the blocks from the property. The court denied this motion. The defendants then filed the present appeal from the clarification of the initial judgment. On October 5, 2007, the defendants moved for an articulation of the second memorandum of decision, which the court granted. It explained that the center blocks “clearly block access from the road to the blacktopped parking area along the side of the plaintiffs building to which relief was granted.” The court further clarified: “[T]he order was to remove the blocks, not double or now possibly triple them on the few valid remaining blocks. The stacking serves no useful purpose and is clearly designed to flout the court’s order and to antagonize the plaintiff. The intent of the court orders should be observed.” The defendants filed a motion for review of the articulation. This court granted the motion but denied the relief requested. Additional facts will be set forth where necessary.

I

The defendants first claim that the court, on July 26, 2007, improperly opened and modified its initial judgment, rendered on August 31, 2006, more than four months after the entry of that judgment. Specifically, they argue that the court, in its second memorandum of decision, modified, rather than clarified, the original decision. The defendants contend that, as a result, the court opened the judgment more than four months after it had been rendered in violation of General Statutes § 52-212a and Practice Book § 17-4. We are not persuaded.

To facilitate our discussion, we set forth certain legal principles germane to the defendants’ appeal. If we conclude that the court modified the original judgment in response to the plaintiffs motion for clarification, such action would be in violation of § 52-212a. That statute provides that “[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. . . .” (Emphasis added.) General Statutes § 52-212a. Despite the existence of various exceptions to § 52-212a, our Supreme Court has stated that this 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.” Kim v. Magnotta, 249 Conn. 94, 104, 733 A.2d 809 (1999). It is undisputed that the plaintiffs motion was filed outside of this four month time period.

If, however, we conclude that the court clarified its original judgment, rather than modified it, then such action would be proper. In AvalonBay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 796 A.2d 1164 (2002), our Supreme Court explained that “a party may seek clarification of an ambiguous judgment at any time . . . .” (Emphasis added.) Id., 246. The ability to clarify stems from the trial court’s continuing jurisdiction, which, in turn, derives from its equitable authority to vindicate judgments. Id., 241. Thus, the question becomes whether the court clarified rather than modified its original judgment.

Our Supreme Court extensively has discussed the distinction between clarification and modification, albeit in the context of determining whether an appeal has been filed timely. See In re Haley B., 262 Conn. 406, 411, 815 A.2d 113 (2003). In that case, the court first observed that the substance of the relief sought and the practical effect of the court’s order determine whether an alteration or clarification has occurred. Id., 412-13. It then defined each of those terms. “An alteration is defined as [a] change of a thing from one form or state to another; making a thing different from what it was without destroying its identity. Black’s Law Dictionary (4th Ed. 1968). An alteration is an act done upon the instrument by which its meaning or language is changed. If what is written upon or erased from the instrument has no tendency to produce this result, or to mislead any person, it is not an alteration. Id. Similarly, a modification is defined as [a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact. Black’s Law Dictionary (6th Ed. 1990). Conversely, to clarify something means to free it from confusion. Webster’s New World Dictionary of the American Language (2d Ed. 1972). Thus, the purpose of a clarification is to take a prior statement, decision or order and make it easier to understand. Motions for clarification, therefore, may be appropriate where there is an ambiguous term in a judgment or decision . . . but, not where the movant’s request would cause a substantive change in the existing decision. Moreover, motions for clarification may be made at any time and are grounded in the trial court’s equitable authority to protect the integrity of its judgments.” (Citation omitted; internal quotation marks omitted.) In re Haley B., supra, 413-14; see also Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 705, 894 A.2d 259 (2006) (any substantive modification of judgment constitutes opening of judgment).

At the outset of our analysis, we set forth the applicable standard of review. The defendants’ claim requires us to construe the original memorandum of decision, as well as the decision with respect to the plaintiffs motion for clarification and the articulation. “The construction of a judgment is a question of law with the determinative factor being the intent of the court as gathered from all parts of the judgment. ... As a general rule, the court should construe [a] judgment as it would construe any document or written contract in evidence before it. . . . Effect must be given to that which is clearly implied as well as to that which is expressed.” (Internal quotation marks omitted.) Moasser v. Becker, 107 Conn. App. 130, 135, 946 A.2d 230 (2008); see also Lashgari v. Lashgari, 197 Conn. 189, 196, 496 A.2d 491 (1985); Lusa v. Grunberg, 101 Conn. App. 739, 742, 923 A.2d 795 (2007) (construction of articulation presents question of law).

In the original decision, filed August 31, 2006, the court ordered the “removal of the concrete blocks preventing access to the second driveway or in any way obstructing or interfering with the right-of-way from the second driveway to Mattoon Road.” The defendants moved the western blocks and stacked them on the eastern blocks and did not move the center blocks. The court’s order was to “remove” the blocks and not simply to move or to relocate those blocks that prevented access to the second driveway. We note that word “remove” has several definitions: “1. to move from a place or position; take away or off ... 3. to move or shift to another place or position; transfer ... 6. to take away, withdraw, or eliminate ... 7. to get rid of; do away with; put an end to . . . .” (Emphasis added.) Random House Webster’s Unabridged Dictionary (2d Ed. 1991). Given the different meanings for the word “remove,” it is understandable that each party had a different expectation of what was necessary to comply with the court’s order. Specifically, the defendants merely had moved or shifted the blocks, while the plaintiff claimed in his motions that the court had ordered the removal of the blocks from the boundary line between the properties. In other words, the term “remove” is open to differing rational interpretations yet is not so unclear and ambiguous as to be unenforceable. See AvalonBay Communities, Inc. v. Plan & Zoning Commission, supra, 262 Conn. 250-51. As the parties were unable to agree as to whether the conditions of the court’s order had been met, it was appropriate for the plaintiff to invoke the trial court’s continuing jurisdiction to interpret and effectuate the order with respect to the blocks. See id., 251.

We find further support in our case law for our conclusion that the court clarified, rather than modified, its decision. For example, in Miller v. Miller, 16 Conn. App. 412, 547 A.2d 922, cert. denied, 209 Conn. 823, 552 A.2d 430 (1988), we concluded that the court improperly had modified its original order. In that case, the court ordered the defendant to pay $500,000 as a lump sum alimony award to the plaintiff. Id., 414. In response, the defendant transferred shares of stock to comply with this order. Id. The plaintiff subsequently filed a motion for clarification, inquiring whether there were any limitations on the defendant’s right to transfer securities that were low in basis, low in dividend yield or not likely to appreciate. Id. Over the defendant’s objection, the court found that the transfer of stock did not comply with its order. Id., 415.

On appeal, we noted that the dissolution decree simply stated that the defendant was ordered to pay the plaintiff lump sum alimony in the amount of $500,000 and that this could be done by the transfer of securities. Id., 416. We then noted that the court’s subsequent order substantively modified the original judgment in three ways. “[T]he court’s ruling (1) amended the judgment to require that any securities transferred to the plaintiff pay dividends of $50,000 per year, (2) increased the lump sum award by ordering the defendant to transfer additional assets, in excess of the original stock and cash valued at the time of transfer at $500,000, to the plaintiff until the assets transferred paid dividends, which we judicially notice fluctuate with market conditions, of $50,000 per year, and (3) converted the lump sum alimony award into a hybrid lump sum and periodic alimony award by imposing on the defendant an obligation to guarantee an annual rate of return of $50,000 to the plaintiff on the amount of the lump sum payment. ” Id., 416-17. We concluded that such an order constituted an improper modification and set it aside. Id., 420; see also Commissioner of Transportation v. Rocky Mountain, LLC, supra, 277 Conn. 706-707 (addition of $40,300 constituted substantive modification, thus opening of judgment); In re Haley B., supra, 262 Conn. 414 (court improperly changed visitation from once per week to once per month).

We reached a contrary conclusion in Roberts v. Roberts, 32 Conn. App. 465, 629 A.2d 1160 (1993). In that case, we concluded that the trial court properly had clarified its prior order with respect to the sale of a former marital home. In Roberts, the parties incorporated a written stipulation into their judgment of dissolution. Id., 466. The home was to be sold and the parties would share the proceeds equally. Id. The plaintiff filed a motion for an order seeking to expedite the sale of the home, alleging that the defendant refused to lower the price in accordance with the market conditions. Id., 466-67. The court ordered the sale of the home by auction and appointed a committee to conduct the auction. Id., 467.

We concluded that the court did not modify or seek additional terms but, rather, effectuated the terms of the stipulation contained in the original judgment, namely, the sale of the home and the division of the proceeds. Id., 471. “The parties still would [divide] the proceeds of the sale equally after paying off the first mortgage and the plaintiffs mother; no particular price or term of payment is demanded by the movant. The motion seeks only to effectuate the judgment by asking the court to determine how the property will be sold in a situation where, at the time the motion was filed, the marital residence had been on the market for over fifteen months.” Id.; see also AvalonBay Communities, Inc. v. Plan & Zoning Commission, supra, 260 Conn. 250-51; Fewtrell v. Fewtrell, 87 Conn. App. 526, 532, 865 A.2d 1240 (2005); Benedetto v. Benedetto, 55 Conn. App. 350, 354, 738 A.2d 745 (1999), cert. denied, 252 Conn. 917, 744 A.2d 437 (2000).

In the present case, the court clarified that its prior order was to remove the blocks, rather than to move and double stack them. Put another way, it explained that the blocks were to be taken away from the area of the prescriptive easement and not simply to be moved and stacked on other blocks. Given the varying definitions of the term “remove,” we reject the defendant’s argument that the order on the plaintiffs motion changed or amended the original order. Rather, it clarified the meaning of the word “remove,” which the court used. Accordingly, we conclude that the court’s order clarified rather than modified the original order and, therefore, was within the court’s continuing jurisdiction.

II

The defendants next claim that the court improperly entered an injunction that was overbroad. Specifically, they argue that the court’s order that the blocks be removed from their property and not double stacked was overly broad and therefore invalid. We disagree.

As a preliminary matter, we set forth the applicable standard of review. “The issuance of an injunction and the scope and quantum of injunctive relief rests in the sound discretion of the trier. . . . [T]he court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 648, 646 A.2d 133 (1994); Cummings v. Tripp, 204 Conn. 67, 90, 527 A.2d 230 (1987). We further note that the decision to grant an injunction must be on the nature and equities of the case. See Zabaneh v. Dan Beard Associates, LLC, 105 Conn. App. 134, 139, 937 A.2d 706, cert. denied, 286 Conn. 916, 945 A.2d 979 (2008); Stohlts v. Gilkinson, 87 Conn. App. 634, 655, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005).

We first consider the defendants’ claim that the court’s order that the blocks be removed was over-broad. In their brief, the defendants stated that the court “ordered [them] to remove the concrete blocks from [their] property . . . .” They further argue that the court ordered the blocks removed “from any location” on the defendants’ property, including areas where the plaintiff does not possess any rights. We conclude, contrary to the defendants’ arguments, that the court’s decision does not include such a sweeping directive.

In its July 26, 2007 decision that clarified the original memorandum of decision, the court defined the area of the defendants’ property from which the concrete blocks had to be removed. “That area of paved driveway can best be illustrated in the plaintiff’s trial exhibits eight and nine. It is that entire area of paved driveway and parking area that was the subject of the court’s order. It does not extend to the gravel or grass areas shown in those exhibits from the end of the asphalt parking area to the fence visible in [those] exhibits. That area is also shown in the plaintiffs exhibits 3a and e and the defendants’ exhibit A3 offered within this hearing. So, the court’s order extends to the three blocks as shown on the defendants’ exhibit A3 for purposes of this hearing. So, those three blocks are ordered to be removed from the property and not stacked on other blocks remaining on the boundary line. The court also orders that the three blocks originally removed shall not be double stacked and shall be removed from the property.” (Emphasis added.)

As we stated in part I, the interpretation of a judgment presents a question of law. Gorelick v. Montanaro, 94 Conn. App. 14, 30, 891 A.2d 41 (2006). It bears repeating that “[t]he determinative factor being the intent of the court as gathered from all parts of the judgment. . . . As a general rule, the court should construe [a] judgment as it would construe any document or written contract in evidence before it. . . . Effect must be given to that which is clearly implied as well as to that which is expressed.” (Internal quotation marks omitted.) Moasser v. Becker, supra, 107 Conn. App. 135.

Nowhere in any of the three memoranda of decision, the August 31, 2006 initial decision, the July 26, 2007 decision on the plaintiffs amended motion to clarify and the November 13, 2007 articulation, did the court order the blocks to be removed completely from the defendants’ property. The court described the specific area of its order and used exhibits to illustrate that limited locus. Although the court used the word “property,” we read and interpret the court’s decision to mean the limited area as shown in the referenced exhibits and not the entirety of the defendants’ property. By its explicit reference to these exhibits, the court narrowed the area from which the blocks needed to be removed. Simply put, the court’s decision did not require the removal of the concrete blocks from all of the defendants’ property, just the specific area as detailed in the referenced exhibits. The defendants, therefore, seek relief from a nonexistent order for injunctive relief. Their claim is baseless and therefore must fail.

We now turn to the defendants’ claim that the court’s order prohibiting the stacking of the blocks was over-broad. In its articulation, the court stated: “[T]he order was to remove the blocks [and] not double or now possibly triple [stack] them on the few valid remaining blocks. The stacking serves no useful purpose and is clearly designed to flout the court’s order and to antagonize the plaintiff. The intent of the court orders should be observed.” In its original decision, the court had enjoined the defendants from “preventing access to the second driveway or in any way obstructing or interfering with the right-of-way from the second driveway to Mattoon Road.” (Emphasis added.)

Although it is clear from the articulation that the stacking of the blocks antagonized the plaintiff, more significant is the clarification that the stacking thwarted the intent of the court’s orders. This intent was that the plaintiffs right-of-way not be obstructed or interfered with in any way. Implicit in the court’s reasoning is the finding that the defendants’ stacking of the blocks interfered with and disrupted the plaintiffs use of the prescriptive easement. On the basis of our review of the record, we conclude that the court properly could have determined that the stacking of the blocks would obstruct or interfere with the plaintiffs use of the easement. Such conduct, therefore, would constitute a violation of the injunctive relief ordered by the court. We previously have noted that “[c]ourts exercise discretion in cases where impartial minds could hesitate, which usually entails a balancing of the relative gravity of the factors involved.” In re Shaquanna M., 61 Conn. App. 592, 603, 767 A.2d 155 (2001). This case presents such a situation, and we cannot conclude that the prohibition on stacking constitutes an abuse of discretion by the court.

We acknowledge the sparsity of the record on this point but note that the defendants failed to seek an articulation of the factual basis of the order not to stack the blocks. In both the articulation and the motion for review filed by the defendants, they had requested that the court state the legal basis for its order. See, e.g., Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 685-86, 911 A.2d 300 (2006).

We conclude, therefore, that the actual orders of the court implemented and effectuated its finding of a prescriptive easement in the plaintiff and, as such, were not overbroad. See, e.g., Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 407-12, 461 A.2d 422 (1983).

The judgment is affirmed.

In this opinion the other judges concurred.

       Devino is the sole owner of the entity known as One Mattoon Road, LLC. One Mattoon Road, LLC, was cited in after the initiation of this action.

       “[A] prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right.” (Internal quotation marks omitted.) Simonds v. Shaw, 44 Conn. App. 683, 687, 691 A.2d 1102 (1997).

       We note that “[mjotions for interpretation or clarification, although not specifically described in the rules of practice, are commonly considered by trial courts and are procedurally proper.” (Internal quotation marks omitted.) Rome v. Album, 73 Conn. App. 103, 109, 807 A.2d 1017 (2002).

       At a July 24, 2007 hearing, the court stated that it would “have preferred to do this in a motion for clarification [instead of by way of a motion for contempt].” Counsel for the plaintiff then indicated that he preferred that the court address the clarification issue rather than the contempt issue. The court iterated its preference to address the clarification, and counsel for the defendants consented to such a course of action. In its second memorandum of decision, the court stated that at its suggestion, the parties agreed to have the motion to clarify determined, rather than the motion for contempt.

       The plaintiff had thought that the defendants were required to remove all of the concrete blocks from the boundary line.

       The defendants did not appeal from the court’s judgment in favor of the plaintiff that he has a prescriptive easement over a portion of the defendants’ property.

       Our Supreme Court has stated that “courts have inherent power to change or modify their own injunctions [when] circumstances or pertinent law have so changed as to make it equitable to do so . . . ." (Citation omitted; internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 213, 884 A.2d 981 (2005); Adams v. Vaill, 158 Conn. 478, 482, 262 A.2d 169 (1969). This issue, however, neither was raised before the trial court nor presented in either party’s appellate briefs. Accordingly, we do not afford it consideration.

       We note that the argument in the defendants’ brief with respect to this claim is somewhat unclear. Initially, the defendants stated that the court’s “orders directing the defendants to remove concrete blocks from the defendants’ property and not to stack the removed blocks on the permitted blocks, fail these tests [to determine whether an injunction is overbroad].” The brief then states that the court “ordered the defendants to remove the blocks that formerly had been placed at the Second Driveway from any location anywhere on the plaintiffs property, including locations where the . . . court expressly found that the plaintiff does not possess any prescriptive or other right of passage. The placement of blocks elsewhere on the plaintiffs property is not an injurious invasion of any right which the plaintiff possesses because it would have no adverse effect on the plaintiffs easements.” (Emphasis added.) Finally, that portion of the defendants’ argument concludes by stating: “Consequently, it is erroneous as a matter of law for the . . . court to have issued an injunction ordering the defendants to remove from their property all blocks which had obstructed the prescriptive right-of-way.” (Emphasis added.)
      It would appear that the defendants’ argument is that the court improperly ordered the removal of the blocks from their own property and not the property of the plaintiff. The defendants would have no right to place blocks on the plaintiffs property, and the plaintiff would have no need for a right-of-way on property that he owned.

       We also note that the court clearly permitted three blocks to remain on the defendants’ property near the boundary line. It would be inconsistent to allow those three blocks to remain but to order the others removed entirely from the defendants’ property.


author: ROBINSON, J.

text:
    CORNELIUS HARGROVE v. SUPERIOR COURT OF THE JUDICIAL DISTRICT OF TOLLAND AT ROCKVILLE
    (AC 28776)
    Bishop, Robinson and Mihalakos, Js.

      Argued September 22
    officially released December 2, 2008

      Justine F. Miller, special public defender, for the plaintiff in error.

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Frederick W. Fawcett, supervisory assistant state’s attorney, for the defendant in error.
   Opinion

ROBINSON, J.

The plaintiff in error, Cornelius Hargrove, brought a writ of error contesting the Superior Court judgment summarily finding that he had committed criminal contempt during his habeas trial and sentencing him to six months imprisonment. The plaintiff in error claims that (1) the habeas judge should have disqualified herself from sitting in judgment on the criminal contempt and (2) the habeas court violated his constitutional and statutory rights by summarily finding him in contempt, in absentia, without affording him the opportunity to respond to the charge. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to this court’s review. In 1991, the plaintiff in error was arrested and charged with assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and carrying a pistol without a permit in violation of General Statutes § 29-35. As a result of this conviction, he was sentenced to a total effective term of twenty-five years in prison. That conviction was affirmed by this court in State v. Hargrove, 33 Conn. App. 942, 638 A.2d 1098 (1994).

On July 20, 2004, the plaintiff in error filed a second petition for a writ of habeas corpus. The court appointed attorney Justine F. Miller to represent the plaintiff in error, and, on his behalf, she filed a second amended petition alleging six counts. At the outset of the habeas trial, which commenced on December 11, 2006, the court dismissed counts one through five on the ground that those counts were litigated previously in the plaintiff in error’s first habeas petition. During the presentation of his case, the plaintiff in error became increasingly frustrated with his attorney and the manner in which she was representing him. During the morning session, the plaintiff in error asked to address the court, and his request was granted. At that time, he attempted to reargue the court’s prior decision to dismiss counts one through five. He also complained that his attorney was not asking the proper questions. Shortly thereafter, the plaintiff in error interrupted the court proceedings to request a luncheon recess.

When the trial resumed after the recess, the plaintiff in error’s mounting frustration with the court proceeding culminated in his request to the court to proceed pro se. The court fully canvassed the plaintiff in error on the implications of pro se representation. In response to the court’s inquiry as to whether he fully understood these implications, the plaintiff in error stated: “I heard you the first time.” Thereafter, the court granted the plaintiff in error’s request for a short recess to organize his file.

When the court reconvened, the plaintiff in error resumed questioning of the witness on the stand, his prior counsel, Dante Gallucci. The counsel for the respondent, the commissioner of correction, objected to his line of questioning, and the court sustained the objection. The plaintiff in error and the court then engaged in an escalating colloquy regarding the court’s decision to sustain the objection. This colloquy concluded with an outburst of profanity directed at the court by the plaintiff in error as he exited the courtroom.

Following this outburst, the court stated the following for the record: “The court, in the [plaintiff in error’s] absence, based upon his ill-mannered behavior in court, which not only interrupted the court and the orderly process of this trial, but was repeatedly an insult to the dignity and the authority of the court, which was observed by not only court staff but a witness on the stand, counsel for both sides, both [the plaintiff in error] and the respondent and a member of the public seated in the back of the room, the court accordingly finds the . . . [plaintiff in error] ... in contempt . . . .” The court then sentenced the plaintiff in error to six months imprisonment. Subsequently, on March 19, 2007, the plaintiff in error brought the present writ of error challenging, the contempt ruling. Additional facts will be set forth as necessary.

As a preliminary matter, we note that a writ of error is the sole method of review for a summary criminal contempt proceeding. Jackson v. Bailey, 221 Conn. 498, 500, 605 A.2d 1350, cert. denied, 506 U.S. 875, 113 S. Ct. 216, 121 L. Ed. 2d 155 (1992). “The scope of our review reaches only those matters appearing as of record.” (Internal quotation marks omitted.) Id. “[I]n a review of summary criminal contempt, the inquiry is limited to a determination of the jurisdiction of the court below. . . . Subsumed in this inquiry are three questions, namely, (1) whether the designated conduct is legally susceptible of constituting contempt ... (2) whether the punishment imposed was authorized by law . . . and (3) whether the judicial authority was qualified to conduct the hearing.” (Internal quotation marks omitted.) Higgins v. Liston, 88 Conn. App. 599, 606, 870 A.2d 1137, cert. denied, 276 Conn. 911, 886 A.2d 425 (2005), cert. denied, 546 U.S. 1220, 126 S. Ct. 1444, 164 L. Ed. 2d 143 (2006).

I

The plaintiff in error first claims that the trial judge, Swords, J., should have disqualified herself from sitting in judgment on the criminal contempt. Specifically, the plaintiff in error maintains that his tirade constituted a direct attack on the judge as an individual, rather than on the court as an abstract entity; therefore, the judge was personally embroiled so as to, in the very least, implicate the appearance of bias in her judgment on the criminal contempt. We disagree.

“[In] Mayberry v. Pennsylvania, [400 U.S. 455, 465-66, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971)], [the United States Supreme Court] held . . . that the fair administration of justice disqualifies a judge from sitting in judgment on a contempt charge if he has become so personally embroiled with a contemnor that it is unlikely for him to maintain that calm detachment necessary for fair adjudication. ... In general, in order to determine whether a judge was required to recuse him or herself due to personal embroilment, we must appraise both the conduct of the contemnor and the reaction of the judge. While personal embroilment is a more likely reaction when the contemnor has mounted a personal attack on the judge, it may also be found in the character of the judge’s response, if the judge has become visibly involved in a running controversy with the contemnor. [T]he inquiry must be . . . whether there was such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused. . . . Consequently, judicial recusal is necessary only in the unusual case where the apparent effect of the contemnor’s conduct on the judge against whom the contemptuous conduct was levied is such as to indicate that the judge’s impartiality or objectivity reasonably may be called into question.” (Citations omitted; internal quotation marks omitted.) Banks v. Thomas, 241 Conn. 569, 599-600, 698 A.2d 268 (1997); see also Naunchek v. Naunchek, 191 Conn. 110, 116-18, 463 A.2d 603 (1983).

Our review of the record regarding the dialogue leading to the contempt finding persuades us that the trial judge was not personally embroiled in a running controversy with the plaintiff in error and, therefore, disqualification was not required. Although the plaintiff in error attempts to classify his outburst as a “verbal sexual assault” consisting of derogatory terms specifically referencing the judge’s gender, the record does not support the argument that this self-proclaimed assault in any way personally embroiled the judge. As defined, “embroil” means “to involve in argument, contention, or hostile action.” (Emphasis added.) American Heritage Dictionary of the English Language (4th Ed. 2006). Looking at the character of the trial judge’s responses to the plaintiff in error’s outburst, however, it is apparent that Judge Swords maintained her professional demeanor at all times and did not depart from her role as the judicial authority even when she was the target of the profane outburst. Although the plaintiff in error was engaged in hostile, contumacious behavior, the judge did not become personally involved at any point. Rather, in response to the initial singular epithet, the judge informed the plaintiff in error that “if I hear you use another epithet like that, I will hold you in contempt.” When the plaintiff in error responded with a longer outburst, the judge followed through with her prior comment by succinctly stating: “[The] [c]ourt holds you in contempt.” The record does not reveal any indication that the judge became involved in a running controversy; accordingly, recusal was not necessary to safeguard the plaintiff in error’s due process rights.

Rather than citing to portions of the record to substantiate his claim of personal embroilment, the plaintiff in error asserts that the present case presents circumstances in “stark contrast” to case law upholding the summary contempt powers of a trial judge. Specifically, the plaintiff in error attempts to distinguish his case from two Supreme Court cases, namely, Jackson v. Bailey, supra, 221 Conn. 517, in which the trial judge was found to be “taking appropriate measures to maintain order in his courtroom”; id.; and Naunchek v. Naunchek, supra, 191 Conn. 119, in which the trial judge “exercise[d] considerable control and reasonable restraint in [its] response to the plaintiffs [conduct].” Id. The plaintiff in error’s argument in support of this purported distinction is that his outburst constituted a personal attack on the judge as an individual. Our Supreme Court, however, has addressed this issue and determined that a personal attack on the judge does not automatically require recusal. “The use of [the summary contempt] power cannot be constrained by the [plaintiff] simply through the expediency of directing personal insults at the judge: the judge may exercise the contempt power regardless of whether he or she is the subject of attack [absent evidence of personal embroilment by the judge]. ... It should be emphasized that ... an unruly [plaintiff] achieves nothing by directing insults at the trial judge. The trial judge at all times retains his power of contempt . . . .” (Internal quotation marks omitted.) Jackson v. Bailey, supra, 517. Thus, although the plaintiff in error argues that the personal nature of his comments created the automatic appearance of bias, we disagree.

II

The plaintiff in error next claims that the court improperly failed to afford him the opportunity to be heard before the summary criminal contempt finding was made. Specifically, the plaintiff in error argues that he did not waive his right to show cause or to be present during his contempt sentencing, and, therefore, his due process rights were violated when the court sentenced him in absentia.

In its supplemental memorandum of decision, the court made the following finding regarding the course of events leading to the contempt sentencing. “As soon as the [plaintiff in error] began to swear at the court, he stood up and walked toward the lockup door approximately twenty feet away from counsel table. The marshal seated behind [the plaintiff in error] followed as [the plaintiff in error] made his way to the lockup door. As [the plaintiff in error] and the first marshal approached the marshal’s desk located near the lockup door, the second marshal also stood up and walked toward the lockup door. Upon reaching the lockup, the second marshal unlocked the door and the [plaintiff in error] walked through. At no time did either of the two marshals touch [the plaintiff in error] or direct him toward the lockup or through the lockup door. At all times [the plaintiff in error] moved of his own volition and under his own power from his seat at the counsel table to the lockup door.” The court also found: “[The plaintiff in error’s] tirade . . . lasted continuously from the time [the plaintiff in error] stood up behind the counsel table until the lockup door was closed behind him. [The plaintiff in error’s] tone of voice throughout was loud, hostile and angry. While [the plaintiff in error] was still present at the entrance to the lockup, this court held him in contempt of court. [The plaintiff in error] then walked into the lockup and the door was closed behind him. Once [the plaintiff in error] was out of the courtroom, the court put certain findings on the record and sentenced [the plaintiff in error] to six months consecutive to any other sentence previously imposed.” On the basis of those observations, the court held that the plaintiff in error “by his conduct waived his right to be present at the sentencing.”

The crux of the plaintiff in error’s argument on appeal is that he did not waive his right to be present during sentencing or to speak on his behalf for allocution because he did not leave the courtroom of his volition. In making this argument, the plaintiff in error is essentially contesting the court’s finding of fact as set forth in the supplemental memorandum of decision. We note, however, that “[a] writ of error may not assign as error, nor may we review on a writ of error, allegations concerning the conduct of the trial court that contradict the record ... or findings of fact as distinguished from conclusions of law.” (Internal quotation marks omitted.) McClain v. Robinson, 189 Conn. 663, 668, 457 A.2d 1072 (1983). Therefore, to the extent that the plaintiff in error is contesting the factual findings of the court and maintaining that he did not voluntarily leave the courtroom, this argument does not fall within the ambit of our limited review of a writ of error. See Higgins v. Liston, supra, 88 Conn. App. 606 (stating that review of writ of error limited to determination of jurisdiction of court). Accordingly, we decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The writ originally was brought to our Supreme Court and subsequently was transferred to this court pursuant to Practice Book § 65-1.

       The first petition for a writ of habeas corpus alleged ineffective assistance of counsel and actual innocence. The petition was dismissed, and the subsequent petition for certification to appeal was denied. Thereafter, this court dismissed the plaintiff in error’s appeal in Hargrove v. Commissioner of Correction, 92 Conn. App. 322, 884 A.2d 1031 (2005), and certification to appeal was subsequently denied by our Supreme Court in Hargrove v. Commissioner of Correction, 277 Conn. 905, 894 A.2d 987 (2006).

       The second amended petition alleged ineffective assistance of trial counsel, ineffective assistance of trial appellate counsel, ineffective assistance of habeas trial counsel, ineffective assistance of habeas appellate counsel, actual innocence and prosecutorial impropriety.

       The following exchange occurred between the plaintiff in error and the court:
      “The Court: Mr. Hargrove, I told you that when you represent yourself, you’re bound by the rules of evidence. You ask a question.
      “[The Plaintiff in Error]: What are the rules of evidence? I need the rules of evidence.
      “The Court: You ask a question. If there’s an objection, I rule on it.
      “[The Plaintiff in Error]: Bitch.
      “The Court: Mr. Hargrove, if I hear you use another epithet like that, I will hold you in contempt.

        “[The Plaintiff in Error]: Bitch, kiss my fucking ass. How about that? Kiss my fucking ass, you stinking bitch. Now, how about that?
      “Unidentified Speaker: Take him out.
      “[The Plaintiff in Error]: You fucking bitch, kiss my whole ass and like it. You fucking, stinking whore, and suck my whole dick and everything, you stinking whore. Suck my fucking dick, fucking bitch.
      “The Court: [The] [c]omt holds you in contempt.”

       The plaintiff in error does not contest whether waiver of his right to be present can be inferred from his conduct; rather, he contests whether the conduct relied on by the court to infer his waiver actually occurred. Although the plaintiff in error’s claim contesting the factual findings of the court is not properly raised by a writ of error, we do note in the interest of clarity that a defendant can waive even fundamental constitutional rights through his conduct. See State v. Drakeford, 202 Conn. 75, 79, 519 A.2d 1194 (1987) (“[w]e have long held that the right to be present at a criminal trial may be lost by consent, waiver or misconduct”). Such waiver need not be express and “may be implied from the totality of acts or conduct of a defendant.” Id. Specifically regarding the right to be present, our Supreme Court has held that “[a criminal] defendant may waive [the] right ... in a number of ways, such as by his voluntary and deliberate absence from trial [or] by disruptive conduct which requires his removal from the courtroom . . . .” (Citations omitted; internal quotation marks omitted.) State v. Jones, 281 Conn. 613, 636-37, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S. Ct 164, 169 L. Ed. 2d 112 (2007); see also State v. Jarzbek, 204 Conn. 683, 687-98, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988). Furthermore, in the particular context of summary criminal contempt proceedings, it is important to recognize that although the proceedings are criminal in nature, they do not constitute criminal prosecutions. Higgins v. Liston, supra, 88 Conn. App. 610. “They are for an offense against the court as an organ of public justice and not for a violation of the criminal law.” (Internal quotation marks omitted.) Id. Accordingly, these proceedings are subject to fewer procedural safeguards than criminal prosecutions. Id., 611.


text:
    ASTORIA FEDERAL MORTGAGE CORPORATION v. ARTHUR MATSCHKE ET AL.
    (AC 29428)
    Bishop, Gruendel and Lavine, Js.
    Argued October 20
    officially released December 2, 2008

      Gregory J. Cava, for the appellants (defendants).

      Andrew P. Barsom, for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this foreclosure action, the defendants, Arthur Matschke and Elaine Matschke, appeal from the judgment of the trial court denying their motion to open a judgment of foreclosure by sale. We dismiss the appeal for lack of subject matter jurisdiction.

The plaintiff, Astoria Federal Mortgage Corporation, commenced a foreclosure action against the defendants in the summer of 2005 with respect to real property located in Bridgewater (property). On February 27, 2006, the court rendered judgment of foreclosure by sale, finding the value of the property to be $625,000. The defendants did not appeal from that judgment. The court thereafter set a sale date of December 2, 2006. Six successive, and successful, motions to open the judgment and to set a new sale date followed over the course of the next year. On November 20, 2007, the defendants moved once again to open the judgment of foreclosure and to set aside the scheduled December 8, 2007 sale date. The court denied that motion on December 3, 2007, and the defendants appealed to this court on December 7, 2007. Their principal claim on appeal pertains to the alleged noncompliance with a standing order, in accordance with General Statutes § 49-25, requiring a disinterested appraiser to submit to the court its appraisal of the foreclosed property at least seven days prior to the sale. See Standing Order JD-CV-79 (10).

The plaintiff argues, and we agree, that the present appeal is not ripe for our adjudication and hence nonjusticiable. “Justiciability involves the authority of the court to resolve actual controversies. . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. ... As we have recognized, justiciability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine.” (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Burton, 282 Conn. 1, 7, 917 A.2d 966 (2007). “A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction. . . . [B]ecause an issue regarding justiciability raises a question of law, our appellate review [of the question of ripeness] is plenary.” (Citation omitted; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008).

As our Supreme Court has explained, “the rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . [and we therefore] must be satisfied that the case before [us] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.” (Internal quotation marks omitted.) Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 570, 858 A.2d 709 (2004). At present, no sale date has been set for the property subject to the court’s judgment of foreclosure. As a result, the possible failure of the disinterested appraiser to submit to the court an appraisal of the property at least seven days prior to that sale remains hypothetical. To proceed to a consideration of the merits of the defendants’ claim requires us to engage in speculation and conjecture, which “have no place in appellate review.” Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005). Because the defendants’ claim is contingent on some event that has not and indeed may never transpire, it is not ripe for our adjudication.

In addition, justiciability requires the determination of the controversy to result in practical relief to the complainant. See Statewide Grievance Committee v. Burton, supra, 282 Conn. 7. Irrespective of which party prevails in this appeal, the matter will return to the Superior Court, where a new sale date will be set. The defendants will find themselves in the same position whether this court rules in favor of the plaintiff, the defendants or dismisses the appeal altogether, and will be free to challenge the propriety of the independent appraiser’s submission following the committee sale. See, e.g., Jacqueline Properties, LLC v. Gartrell, 101 Conn. App. 6, 919 A.2d 1059, cert. denied, 283 Conn. 907, 927 A.2d 918 (2007). We thus perceive no practical relief that this court can grant to the defendants in this appeal. Accordingly, we dismiss the appeal for lack of subject matter jurisdiction.

The appeal is dismissed.

       The court granted the defendants’ November 21, 2006 motion to open the judgment on November 27, 2006. The court granted the defendants’ January 19, 2007 motion to open the judgment on January 22, 2007. The court granted the defendants’ April 9, 2007 motion to open the judgment on April 23, 2007. The court granted the defendants’ July 18, 2007 motion to open the judgment on July 23, 2007. The court granted the defendants’ August 24, 2007 motion to open the judgment on September 4, 2007.

       General Statutes § 49-25 provides in relevant part: “When the court in any such proceeding is of the opinion that a foreclosure by sale should be decreed, it shall . . . appoint one disinterested appraiser who shall, under oath, appraise the property to be sold and make return of the appraisal to the clerk of the court. ...”

       The defendants also claim that the present dispute falls within the purview of the capable of repetition, yet evading review exception to the mootness doctrine. See Loisel v. Rowe, 233 Conn. 370, 660 A.2d 323 (1995) (en banc). That claim fails in light of our recent review of an almost identical claim. In Jacqueline Properties, LLC v. Gartrell, 101 Conn. App. 6, 919 A.2d 1059, cert. denied, 283 Conn. 907, 927 A.2d 918 (2007), the defendant property owner appealed to this court from the trial court’s approval of the sale of foreclosed property, claiming that “the court improperly approved the foreclosure sales of the properties because it did not order and receive new appraisals pursuant to § 49-25 when ... it rendered judgments of foreclosure by sale.” Id., 9. In reviewing that claim, we concluded that the trial court in that case “complied with § 49-25 . . . .” Id., 10. As such, the defendants’ contention that their claim evades review fails.


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. JOHN MERRITT RE
    (AC 29001)
    Bishop, Gruendel and Peters, Js.
    Argued September 23
    officially released December 9, 2008

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Marc R. Durso, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, John Merritt Re, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b (a), manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1), operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (1) and operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (2). On appeal, the defendant claims that his constitutional right not to be placed in double jeopardy was violated as a result of his conviction and sentencing on all four charges. We affirm in part and reverse in part the judgment of the trial court.

On April 6, 2005, the defendant was in an automobile accident that resulted in a fatality. On October 27, 2006, by way of a long form substitute information, the defendant was charged with the four offenses of which he was ultimately convicted. On December 14, 2006, the court sentenced the defendant to nine years incarceration for manslaughter in the second degree with a motor vehicle; six years, execution suspended, with five years probation for manslaughter in the second degree, with special conditions, to run consecutively to the sentence on count one; six months for operating a motor vehicle while under the influence of intoxicating liquor or drugs to run concurrently with counts one and two; and six months for operating a motor vehicle while under the influence of intoxicating liquor or drugs, to run concurrently with counts one and two; for a total effective sentence of fifteen years, execution suspended after nine years, with five years probation. This appeal followed.

Conceding that he failed to preserve his double jeopardy claims, the defendant seeks review pursuant to the tenets of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).* *3We will review the defendant’s claims because the record is adequate for our review and the claims are of a constitutional nature.

“The double jeopardy clause of the fifth amendment to the United States constitution provides: ‘[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.’ The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. . . . This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial.” (Citations omitted.) State v. Greco, 216 Conn. 282, 289-90, 579 A.2d 84 (1990). Nevertheless, one may be convicted of multiple offenses arising from the same conduct if such an outcome is authorized by legislation. Missouri v. Hunter, 459 U.S. 359, 367-68, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983).

“Double jeopardy analysis in the context of a single trial is 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. Woodson, 227 Conn. 1, 7, 629 A.2d 386 (1993). While the first prong requires a review of the bill of particulars, the second prong requires the application of the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), “to determine whether two statutes criminalize the same offense, thus placing a defendant prosecuted under both statutes in double jeopardy . . . [and] 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. . . . This test is a technical one and examines only the statutes, charging instruments, and bill of particular's as opposed to the evidence presented at trial.” (Internal quotation marks omitted.) State v. Lopez, 93 Conn. App. 257, 272, 889 A.2d 254 (2006), aff'd, 281 Conn. 797, 917 A.2d 949 (2007).

Here, it is undisputed that the four charges of which the defendant was convicted all arise from the same act or transaction. The defendant claims that the offenses of reckless manslaughter in the second degree and manslaughter in the second degree with a motor vehicle due to intoxication are, in legal contemplation, the same offense. He makes a similar argument with respect to his conviction of two counts of operating a motor vehicle while under the influence of intoxicating liquor or drugs. We address each of the defendant’s claims in turn.

I

The defendant first claims that he cannot be convicted of both manslaughter in the second degree in violation of § 53a-56 (a) (l) and manslaughter in the second degree with a motor vehicle in violation of § 53a-56b (a) for the death of one person. The defendant contends that conviction of these dual charges violates his right against double jeopardy because they constitute the same offense. We disagree.

We have carefully reviewed the relevant statutory provisions at issue as well as the substitute information. As to the first count, the state was required to prove beyond a reasonable doubt that the defendant (1) operated a motor vehicle (2) while under the influence of intoxicating liquor or any drug or both, (3) caused the death of another person and (4) that such death resulted as a consequence of the effect of such liquor or drug. See General Statutes § 53a-56b (a). As to the second count, the state was required to prove that the defendant (1) engaged in reckless conduct that (2) caused the death of another person. See General Statutes § 53a-56 (a) (1). In examining and comparing the two statutes and the information with which the defendant was charged, it is apparent that each offense requires proof of elements that the other does not, namely, being under the influence of alcohol in count one and reckless conduct in count two. Consequently, it is possible to prove one offense in the manner charged in the information without necessarily proving the other offense. Accordingly, we conclude that, under the Blockburger test, the offenses at issue are not the same for double jeopardy purposes.

Furthermore, there is no indication in the language of either statute, or their legislative histories, that the legislature intended that a person convicted of second degree manslaughter with a motor vehicle could not also be convicted of second degree manslaughter. This court has held that because “the legislature has shown that it knows how to bar multiple punishments expressly when it does not intend such punishment . . . the absence of similar language in those statutes provides evidence that the legislature intended cumulative punishments.” (Internal quotation marks omitted.) State v. Quint, 97 Conn. App. 72, 80-81, 904 A.2d 216, cert. denied, 280 Conn. 924, 908 A.2d 1089 (2006).

On the basis of the foregoing as it relates to the conviction of the manslaughter charges, we conclude that the defendant has not established that a constitutional violation clearly exists and clearly deprived him of a fair trial. Thus, this claim fails under the third prong of Golding.

II

The defendant contends that his prosecution and conviction for the violations of both subdivision (1) and subdivision (2) of § 14-227a (a) violated his right to be free of double jeopardy. The state concedes that the dual sentencing on those charges did violate the defendant’s protection against double jeopardy, and we agree.

The state charged the defendant with violating § 14-227a (a) (1) for operating a vehicle while under the influence of alcohol and § 14-227a (a) (2) for operating a vehicle while his blood alcohol content was elevated. Although the charges in question appear to pass the Blockburger test in that each requires proof of a fact that the other does not, “[t]he Blockburger test is a rule of statutory construction, and because it serves as a means _ of discerning [legislative] purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.” State v. Kirsch, 263 Conn. 390, 421-22, 820 A.2d 236 (2003). In this instance, there is such an indication. The legislative history reflects that the two subdivisions of § 14-227a (a) describe alternative means for committing the same offense of illegally operating a motor vehicle while under the influence of intoxicating liquor or drugs. In other words, the two subdivisions provide for different methods of proof of the same offense and, significantly, the legislature clearly indicated that an individual could not be punished under both subdivisions of the statute without violating double jeopardy. See 28 H.R. Proc., Pt. 30, 1985 Sess., pp. 10, 853-54, 10, 878-82; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1985 Sess., pp. 1815-16. Thus, even though the alternate subdivisions of § 14-227a (a) contain different statutory elements, the clear legislative intent that one may not be punished under both subdivisions for the same conduct trumps the Blockburger analysis. Consequently, because the defendant’s right to protection from double jeopardy regarding his sentencing on two counts of operating a motor vehicle while under the influence of intoxicating liquor or drugs was violated, he prevails because he has satisfied the third prong of Golding.

The judgment is reversed in part and the case is remanded with direction to combine the conviction of two counts of operating a motor vehicle while under the influence of intoxicating liquor and to resentence the defendant on one count of operating a motor vehicle while under the influence of intoxicating liquor. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if ad 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.) State v. Golding, supra, 213 Conn. 239-40. “The first two questions relate to whether a defendant’s claim is renewable, and the last two relate to the substance of the actual review.” State v. Jarrett, 82 Conn. App. 489, 492 n.1, 845 A.2d 476, cert. denied, 269 Conn. 911, 852 A.2d 741 (2004).

       General Statutes § 53a-56 (a) provides in relevant part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”

       General Statutes § 53a-56b (a) provides: “A person is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug.”

       The defendant argues that the statutes are essentially the same because operating under the influence is akin to reckless conduct. The defendant has not provided, however, nor have we found, any legal authority for this argument. For example, a person who operates a motor vehicle while under the influence may be criminally negligent but not reckless. Additionally, the policies underlying each statute, one to deter driving while under the influence and the other to deter recklessness, belie the defendant’s argument that the statutes criminalize the same conduct

       Our Supreme Court has noted: “The legislative history [of § 53a-56b] merely indicates the legislature’s intent to enhance the existing criminal penalties for causing physical injury or death when driving while intoxicated in order to deter such conduct. See 25 H.R. Proc., Pt. 9, 1982 Sess., pp. 2771-72; 25 S. Proc., Pt. 11, 1982 Sess., p. 3645. As part of those reforms, the legislature changed the crime for causing a death when driving while intoxicated from what was then a class D felony—misconduct with a motor vehicle—to a class C felony, and increased the penalty to a possible ten years imprisonment. See Public Acts 1982, No. 82-403.” State v. Kirsch, 263 Conn. 390, 419, 820 A.2d 236 (2003).

       See, for example, General Statutes §§ 53a-55a (a), 53a-56a (a), 53a-59a (b), 53a-60a (a), 53a-60b (b), 53a-60c (b), 53a-61a (b), 53a-70a (a), 53a-72b (a), 53a-92a (a), 53a-94a (a), 53a-102a (a) and 53a-103a (a).

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content. ...”


author: WEST, J.

text:
    STATE OF CONNECTICUT v. ANTHONY DEREK STEPHENS
    (AC 28626)
    Gruendel, Beach and West, Js.

      Argued September 18
    officially released December 9, 2008

      William B. Westcott, for the appellant (defendant).

      Rocco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and David R. Applegate, deputy assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Anthony Derek Stephens, appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (l) and risk of injury to a child in violation of General Statutes § 53-21 (a) (l). On appeal, the defendant claims that the trial court improperly denied his motion for a judgment of acquittal because the state failed to introduce sufficient evidence to establish beyond a reasonable doubt that he was the individual who caused the victim’s injuries. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the summer of 2005, the victim, a five year old boy, attended a city operated weekday camp for children ranging in age from five to thirteen years. The camp was attended daily by approximately 275 children and staffed by trained counselors and junior counselors, who supervised activities for the children, including sports, board games and arts and crafts. The victim attended the camp regularly throughout the summer and usually was dropped off and picked up by the defendant, the live-in boyfriend of the victim’s mother.

On July 25, 2005, Dawn West, the camp director, telephoned the victim’s mother to discuss the ongoing problem of the victim stealing food from other campers. West offered the victim’s mother some strategies to help resolve the problem, stressing to her that this behavior could not continue. Later that day, the defendant, in West’s presence, confronted the victim about stealing food from other campers, admonishing the victim that “it had better stop.” Soon after, at pickup time, a camp counselor observed the defendant head butt the victim, causing the defendant’s forehead to strike that of the victim, repeatedly. The defendant then threw the victim roughly into his car and drove away.

On Wednesday morning, July 27, 2005, the defendant dropped the victim off at the camp. The defendant asked another camp counselor if the victim had been behaving. The camp counselor responded that the victim had been behaving himself at camp. The defendant then said to the camp counselor: “See what a little child abuse does.” After the defendant left, the victim approached West and pulled up the leg of his shorts and showed her extensive welts, bruises and abrasions on his right thigh. These injuries extended from the middle of the victim’s thigh onto his hip and lower torso above his waist. Following protocol, West contacted her supervisor, Laurie Albano, superintendent of recreation services for the city that operated the summer camp, for direction on how to proceed. Upon her arrival at the camp, Albano inspected the victim’s wounds and decided that intervention from local law enforcement as well as the department of children and families (department) was required immediately.

Police officers soon arrived and interviewed both West and the victim. They inspected the extent of the victim’s injuries and discovered additional abrasions on his neck. After determining that the victim required medical attention, the police, not having adequate safety seating in their vehicles for the victim, called for an ambulance to transport the victim to the local hospital. During the trip to the hospital, the victim told the emergency medical service worker that he had been struck with a belt that morning. The emergency medical services worker also observed that the injuries on the victim’s right thigh “had what appeared to be small belt hole marks.” At the hospital, the victim’s injuries were assessed by the triage nurse on duty, Carolyn Demillo. Demillo testified that the victim also told her that his injuries were caused by being struck with a belt. She testified that the victim’s wounds were consistent with this assertion. She also specified in her testimony that the victim showed objective indications that he had been subjected to physical abuse.

Brett Silver, a physician and expert in emergency medicine, also examined the victim that day at the hospital. He concluded that the victim’s injuries were the product of trauma that was inflicted with a man-made object resulting in the linear- pattern of bruising, welts and abrasions on the victim’s right thigh, right hip, abdomen and torso. Silver testified that although there was no precise way he could date these injuries other than that they had occurred within a few days prior to his examination, the injuries were consistent with having been inflicted that morning.

On the afternoon of July 27, 2005, the police went to the victim’s home and found the defendant in the driveway working on an automobile. The defendant was placed under arrest and subsequently was charged by information with one count of assault in the second degree and two counts of risk of injury to a child. On two occasions after his arrest, the defendant accused a child at the camp attended by the victim of causing the injuries to the victim. The first accusation was made to a department social worker assigned to the case and came within days of his arr est. The second accusation was made in October, 2005, to a police officer assigned as a resource officer at the victim’s school.

The defendant’s trial commenced in December, 2006. At trial, Andrea Asnes, a pediatrician, provided testimony regarding the evaluation, which the department had requested she perform, of the medical and police records, as well as the department’s records, pertaining to this case, along with the records of a forensic interview conducted with the victim and the photographs of his injuries. Asnes specializes in the detection, assessment and treatment of suspected child abuse or neglect. Asnes concluded from her evaluation that the victim’s injuries were consistent with a forceful beating with a belt and were unlikely to have been inflicted by a child of comparable age, especially in a camp setting. Also, Asnes testified that physical abuse of children at the hands of caretakers who utilize physical punishment can escalate in that a victim of such abuse may suffer more dramatic injuries over time.

The jury found the defendant guilty of assault in the second degree and one count of risk of injury to a child. The defendant was sentenced to a total effective term of seven years incarceration, execution suspended after two years, followed by five years probation with special conditions. This appeal followed. Additional facts will be put forth as necessary.

On appeal, the defendant claims that the court improperly denied his motion for a judgment of acquittal because the state failed to introduce sufficient evidence to establish beyond a reasonable doubt that he was the individual who caused the victim’s injuries. In essence, the defendant argues that the evidence marshaled by the state, even when viewed in the light most favorable to sustaining the verdict, proves beyond a reasonable doubt only that on July 27, 2005, camp personnel discovered injuries to the victim and that the defendant had taken the victim to camp that morning. We disagree.

“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.” (Internal quotation marks omitted.) State v. Green, 261 Conn. 653, 667, 804 A.2d 810 (2002).

“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.” (Internal quotation marks omitted.) State v. Sanchez, 75 Conn. App. 223, 238-39, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 (2003).

“[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 [seventh] 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.” (Internal quotation marks omitted.) State v. Davis, 68 Conn. App. 794, 798, 793 A.2d 1151, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002).

“It is black letter law that in any criminal prosecution, the state bears the burden of proving beyond a reasonable doubt the defendant’s identity as . . . the [perpetrator] of the crime charged.” State v. Smith, 280 Conn. 285, 302, 907 A.2d 73 (2006). 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. Farnum, 275 Conn. 26, 36, 878 A.2d 1095 (2005). On the basis of our review of the record, we conclude that sufficient evidence existed from which the jury could find beyond a reasonable doubt that the defendant caused the victim’s injuries.

The jury reasonably could have concluded from the evidence that the defendant resided with the victim and, coupled with the fact that the defendant took the victim to camp on the morning of July 27, 2005, that he and the victim were at home together that morning. Supporting this conclusion is evidence that the victim’s mother worked as a patient care technician in a hospital through the entire night before the injuries were discovered until 7:19 a.m. on the morning of July 27, 2005. Furthermore, on that morning the defendant stated to a camp counselor, in response to a report that the victim’s behavior had improved, “[s]ee what a little child abuse does.” In light of the expert testimony that the victim’s injuries were consistent with a forceful beating with a belt that occurred that morning, the jury reasonably could have concluded that the defendant’s statement made to the camp counselor was an admission that the defendant had abused the victim to improve his behavior. Also, there was expert testimony concerning the severity of the victim’s injuries that contradicts the accusations of the defendant that a child at the camp had inflicted the injuries on the victim. The jury reasonably could have concluded from this testimony that the defendant’s unsolicited accusations made to the authorities were lies made in an attempt to cover up his crimes.

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.'''’ (Emphasis added; internal quotation marks omitted.) State v. Martin, 285 Conn. 135, 147-48, 939 A.2d 524, cert. denied, 555 U.S. 859 129 S. Ct. 133, 172 L. Ed. 2d 101, after remand, 110 Conn. App. 171, 954 A.2d 256, cert. granted, 289 Conn. 944, 959 A.2d 1010 (2008).

After careful review of the cumulative evidence adduced at trial and viewing that evidence in the light most favorable to sustaining the verdict, we conclude that there was sufficient circumstantial evidence for the juiy to find, beyond a reasonable doubt, that the defendant was the individual who caused the victim’s injuries. We therefore conclude that the defendant’s claim has no merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person

       General Statutes § 53-21 (a) provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony . . .

       The defendant was found not guilty of one count of risk of injury to a child.